Beckford & Beckford (No 2) - [2021] FedCFamC2F 657

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Beckford & Beckford (No 2) [2021] FedCFamC2F 657

File number: MLC 8078 of 2020

Judgment of: JUDGE CARTER

Date of judgment: 19 November 2021

Catchwords: FAMILY LAW – Recovery order application following final orders – whether the children are at risk in the mother’s care – parental responsibility – non-compliance with orders – ongoing parental acrimony – children’s involvement in parental conflict – children’s wishes – where the children have been withheld by the father –best interests of the children – orders made.

Legislation:
Family Law Act 1975 (Cth), s.60CC

Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (Cth), rr.1.31, 11.75

Division: Division 2 Family Law

Number of paragraphs: 63

Date of hearing: 19 November 2021

Place: Melbourne

Counsel for the Applicant: Dr Renata Alexander

Solicitor for the Applicant: Women’s Legal Service Victoria

The Respondent: In person

Counsel for the Independent Children's Lawyer: Mr Stragen Foo

Solicitor for the Independent Children's Lawyer: VM Family Lawyers
ORDERS

MLC 8078 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS BECKFORD

Applicant

AND:
MR BECKFORD

Respondent

ORDER MADE BY:

JUDGE CARTER

DATE OF ORDER:

19 NOVEMBER 2021

THE COURT ORDERS BY CONSENT THAT:
1.Order 15 of the orders dated 15 October 2021 be varied to provide that the costs of the non-reportable family therapy with Ms J be at the father’s sole expense.

THE COURT FURTHER ORDERS THAT:
2.The father return the children Y born in 2010 and Z born in 2014 (“the children”) to the mother's house by 4:15pm on this day.
3.In the event that the father fails to return the children then a Recovery Order will lay issue in the Registry in the usual terms for the recovery of the children.
4.The children’s time and communication pursuant to Orders 7, 8, 10 and 12 of the orders dated 15 October 2021 be suspended, with such time and communication to resume at the commencement of the new school year in 2022, in the same pattern that would have been in place had there been no such period of suspension.
5.Pending the resumption of the children’s time and communication with the father at the commencement of the school year in 2022, the father is hereby restrained from communicating with or spending time with the children, unless otherwise agreed in writing between the parties.
6.The father forthwith ensure the children’s school uniforms, books, laptops and bags be returned to the mother together with the children.
7.The father, his servants and agents are hereby restrained from removing the children from the mother’s care, or from G School without her prior written consent.
8.All extant applications be dismissed.

AND THE COURT NOTES THAT:
A.In the event that further initiating applications are issued, consideration be given to the matter being transferred to Division 1 of the Federal Circuit and Family Court of Australia, in light of the complexity of the matter and significant court time it will…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FedCFamC2F 657
Decision Date

CaseChat Overview and Summary

Beckford & Beckford (No 2) [2021] FedCFamC2F 657 involves an application by the mother for the recovery of her two younger children, Y and Z. The father opposes the recovery order and seeks a number of orders, including sole parental responsibility, that the children remain in his care and that they spend supervised time with the mother. The primary issue before the Court was whether the children are at risk in the mother's care such that they should not be returned to her, or whether they should be returned to the mother's care and time with the father suspended effectively over the next two months. The Court found that the children's best interests would be met by them being immediately returned to their mother's care, and that the father's time and communication with the children should be suspended until the start of the school term next year. The Court found that the greatest risk of harm to these children arises from the complete failure by each of their parents to shield them from the conflict and their wholly dysfunctional parental relationship. The Court found that the mother must immediately address serious deficits with her parenting, particularly her ongoing denigration of the father and his partner in the children's hearing. The Court found that a suspension of time will provide the children with some stability in the mother's care in the next couple of months so that they can settle and readjust.

Orders