Beckwith and Beckwith
[2010] FMCAfam 612
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BECKWITH & BECKWITH | [2010] FMCAfam 612 |
| FAMILY LAW – Interim – recovery order – refusal of recovery order – transfer of proceedings to Family Court of Western Australia. |
| Family Law Act 1975, ss.11F, 60B, 60 CA, 60CB, 60CC, 61DA, 67U, 67V |
| Goode & Goode [2006] FLC 93-286 |
| Applicant: | MS BECKWITH |
| Respondent: | MR BECKWITH |
| File Number: | MLC 3665 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 11 May 2010 |
| Date of Last Submission: | 12 May 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 12 May 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Henwood |
| Solicitors for the Applicant: | Purcell & Purcell |
| Counsel for the Respondent: | In person |
ORDERS
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
The children [X] born [in] 1999 and [Y] born [in] 2003 (“the children”) live with the Husband.
The children spend time and communicate with the Wife as follows:
(a)during the school holidays the children spend time with the Wife from Saturday 3 July 2010 to Friday 16 July 2010 in Melbourne;
(b)during the fourth term school holidays the children spend time with the Wife from Saturday 25 September 2010 to Friday 8 October 2010 in Melbourne;
(c)the children have telephone contact with the Wife on weekdays between 6.30 pm and 7.30 pm Perth time, and at liberty on the weekends, with the Husband to provide telephone numbers and to facilitate the children to contact the Wife whenever the children want to; and
(d)the children spend time with the Wife from Saturday 5 June 2010 to Monday 7 June 2010 in Melbourne, with the Wife to organise and pay for the children’s return airfare and provide the Husband with an itinerary of the travel tickets.
The Husband is to pay for and organise the children’s travel by air from Perth to Melbourne.
The Wife is to pay for and organise the children’s travel by air from Melbourne to Perth.
The children communicate by telephone and spend time with the children’s Maternal Grandmother and Aunties as agreed between the Husband and Maternal Grandmother and Aunties.
These proceedings be transferred to the Family Court of Western Australia to be listed as soon as possible with such priority as that Court deems appropriate.
AND THE COURT NOTES THAT:
(A)Orders 2 to 5 herein were made with the input of the parties following the release of the Court’s interim decision today.
(B)The Husband has indicated that in the event that the Wife obtains employment he would be requesting the Court to reconsider Order 3 herein.
(C)Given the Wife’s present circumstances and her inability to travel outside Victoria, it is requested that the Family Court of Western Australia give the Wife liberty to participate in these proceedings by telephone when necessary.
(D)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Beckwith & Beckwith is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 3665 of 2010
| MS BECKWITH |
Applicant
And
| MR BECKWITH |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by MS BECKWITH (“the mother”), who is seeking various parenting orders against MR BECKWITH (“the father”) in respect of the two children of their relationship namely, [X], born [in] 1999 (“[X]”), and [Y], a female child, born [in] 2003 (“[Y]”) (collectively “the children”).
More specifically, the mother is seeking final orders to the following effect:
·sole parental responsibility for the children;
·that the children live with her; and
·that the children spend time with the father as the Court determines.
In addition, the mother is seeking an interim order today for the recovery of the children from the father, pursuant to s.67U of the Family Law Act 1975 (“the Act”).
The mother’s application is supported by her affidavit sworn on
14 April 2010 and filed on 22 April 2010. The mother was legally represented by Mr Henwood of counsel.
The father opposes the orders sought by the mother in his Response filed on 10 May 2010 and seeks different parenting orders in relation to the children.
More specifically, the father is seeking orders to the following effect:
·sole parental responsibility;
·that the children live with him;
·that the children spend time with the mother as determined by the Court; and
·a restraint upon the mother removing the children from the state of Western Australia.
The father also opposes the recovery order sought by the mother.
The father’s Response is supported by his affidavit sworn on 5 May 2010 and filed on 10 May 2010.
Yesterday, the father also asked the Court to consider that in the event that the mother’s application for a recovery order be unsuccessful that the matter to be transferred to the Family Court of Western Australia.
The father is self-represented but had the benefit of advice from the duty solicitor before the interim hearing commenced yesterday.
There are no current parenting orders in respect of the children before the Court. Yesterday the Court determined that the matter would benefit from an order under s.11F of the Act that the parties attend an appointment with a family consultant to identify the issues in dispute. That appointment was accommodated and proceeded that afternoon with Ms D, family consultant.
Ms D provided the Court with an oral report late yesterday afternoon after which the interim hearing was adjourned to today, being 12 May 2010.
Background
The parties’ background is detailed in their respective affidavits. They agree that:
·they are both aged 39 years;
·they commenced cohabitation in 1998;
·they were married in August 2000, although they disagree on the particular date;
·they have two children: [X], now aged 11 and [Y], now aged six and a half;
·they separated in 2004, with the father asserting that it was in July 2004; and
·they divorced in September 2006.
In respect of the period post-separation they appear to agree as follows:
·the children were primarily in the mother’s care between 2004 and 2007 and primarily in the mother’s care for part of 2008;
·in 2006 the mother was living in New South Wales;
·in 2007, 2008 she was living predominantly in Victoria;
·it appears that the children lived with the mother’s sister, Ms J, in Western Australia for part of 2008;
·that the children lived with the maternal grandmother in 2009 or for a significant part of 2009;
·they also agree that the father lived and worked in Ireland during 2005; and
·that the children came into the father’s care, certainly from earlier this year, but disagree whether this was to be a permanent arrangement or a long term arrangement.
The parties agree that the children came into the father’s care at the request of the mother and that this was, in part, due to security issues associated with the mother’s alleged serious assault by her former partner, Mr S. Indeed, it appears the mother was in a relationship with Mr S at some point following her separation from the father. The father has re-partnered with a Ms B, whom he subsequently married [in] 2009.
Agreed and disagreed facts
The Court has already noted several matters that the parties agree upon, or are not in substantial disagreement upon. The parties also agree that:
·the children are currently in the father’s care in Perth, Western Australia and attending [S] School; and
·[X] has attended a number of schools over the years and that this has been due to the mother’s living circumstances or the children’s living circumstances when the children were otherwise living with the maternal grandmother or the mother’s sister.
Issues
The dispute in this interim hearing focuses solely on whether a recovery order should be issued in respect of the children or whether by implication the children should be relocated from Western Australia to Victoria.
Depending upon the outcome of the mother’s application, the Court needs to consider the interim parenting issues that will flow from this and whether the matter should be transferred to the Family Court of Western Australia should the mother’s interim application fail.
Ms D’s Report
As stated, the parties yesterday attended an interview pursuant to s.11F of the Act before family consultant, Ms D after which an oral report was given to the Court.
Ms D confirmed that the children came into the father’s care following the mother’s serious assault, allegedly by her former partner, Mr S.
Ms D stated that there was nothing that arose from the interview that suggested the children were not currently safe in their father’s care. That having been said, Ms D stated that there was a safety issue surrounding the mother, given her recent serious assault, and that the mother had confirmed to her that she needed to remain in Victoria to ensure her safety from Mr S who, it appears, has been charged with various offences relating to the mother’s assault and, as part of his bail conditions, is not permitted to enter the state of Victoria. It would appear that the children were witness to at least one of the alleged assaults of the mother.
Ms D confirmed that the children had certainly been in the father’s care since early February 2010.
Ms D indicated that the children had moved residences and, in the case of the elder child, schools, on quite a number of occasions.
In her view, Ms D stated that any risk to the children needs evaluation and that the Court should obtain a full family report to assist that evaluation.
As to the proposed relocation, Ms D questioned whether this was, in her words “wise”, given that there was no safety risk for the children and that the father offers some stability, particularly as regards schooling.
Ms D also commented that as the mother’s extended family were also in Western Australia, there was an issue about the support network available to assist the mother should the children be immediately relocated to Victoria.
Ms D indicated that should the children remain with the father, he had offered to facilitate the children spending all of their school holiday time with their mother.
There were also concerns expressed by both parties as to whether either party had or would facilitate telephone time.
The mother also expressed a concern as to whether her extended family had been isolated from the children by the father.
In conclusion and despite the brevity of her interviews, Ms D recommended that:
a)pending any evaluation, the children remain in Western Australia, but that they spend time with the mother and the maternal family;
b)a full family report be ordered to consider, in particular, the children’s best interests, whether the children’s best interests would be served by relocation from Western Australia to Victoria;
c)the mother, “Needs more time to deal with her current problems”. Those being, one assumes, the forthcoming committal hearing and possible trial involving Mr S. Moreover, there is a possible need of the mother to have additional counselling to deal with her recent trauma.
Parties’ submissions
Mr Henwood, submitted that the mother had been the primary carer of the children since their birth and that that factor alone was a highly relevant matter for the determination today, in particular, with regards to the children’s best interests. The mother had been able to facilitate the children’s primary care since separation despite her full-time employment. Mr Henwood did concede that the children had been in the maternal aunt’s care for part of 2008, the maternal grandmother’s care for much of 2009 and the father’s care for the last few months. Nevertheless Mr Henwood submitted that the mother had been able to facilitate the children’s primary care since separation despite her full-time employment.
Mr Henwood also submitted that the mother is now available to care for the children on a full-time basis due to her current status as a full-time student. The mother is apparently enrolled in a master’s degree in [university omitted] on a ‘distance education’ basis. In other words, the mother does not have work commitments, apart from her studies, to assist with the children.
Mr Henwood outlined the three occasions that the mother’s former partner had broken into her [suburb omitted] home, one incident resulting in a serious sexual assault. Mr Henwood confirmed that Mr S had been charged with a number of serious offences arising from these incidents and that a committal hearing is scheduled for 4 June 2010, with a likely hearing date next year, assuming Mr S is committed.
However more relevant and concerning to today’s proceedings were the mother’s submissions that:
·the father had told Mr S of the mother’s movements and possible whereabouts prior to her assault; and
·
the mother’s assertion that the father and Mr S had done, in
Mr Henwood’s words, “a deal”, for the father to, in
Mr Henwood’s words, “Get his children” in return for the father helping Mr S in his defence of the criminal charges. These assertions were based on comments allegedly attributable to a Victorian Police Detective Sergeant S, who is not on affidavit regarding these comments.
Whilst Mr Henwood submitted that the mother understands that removing the children from their current school mid-term would be unwise, she asks the Court to return the children following the end of term two, being Friday, 2 July 2010.
The father, in his submissions, denied the allegations levelled against him in respect of ‘aiding and abetting Mr S in any way or entering into any arrangements of any type with Mr S’. The father does not believe that Mr S works for the same company that he does. The father acknowledged speaking to Detective Sergeant S on a couple of occasions by phone about the mother’s assault and Mr S, but denied ever being formally interviewed by the police.
The father denied that he had been difficult in negotiating time to be spent with the children and that given the nature of his [omitted] employment and their work schedules, it was difficult to quickly make changes to accommodate the other parent.
Of some concern was the father’s assertion that the children spent time with the mother and Mr S last year in Margaret River and that in late 2009, the father, his partner, the mother and Mr S had dinner together in Perth and that consequently the father had assumed that Mr S and the mother were still in a relationship.
In relation to the children, the father submitted his concerns that the children needed stability and that any immediate relocation would not be in their best interests.
In the event that the Court refuses the mother’s application for a recovery order and the children remain in Western Australia, the father proposed that the children spend each school holiday period with the mother. He also proposed telephone time, but submitted that some definition was needed as calls had been made at inappropriate times in the past.
The father also indicated that he would facilitate a relationship between the children and the maternal grandmother and the maternal aunts, and that there had been an occasion on 12 March 2010 when the children had visited their maternal aunt ‘Ms J’ and another occasion on 1 March 2010 when they had visited with at a public pool their maternal aunt ‘Ms S’.
The father submitted that he had facilitated the mother’s wish to enrol the children in a private Catholic school and that [S] School was chosen for this purpose and that the mother had been in communication with the school.
Law
Under s.67U of the Act, the Court has power to make a recovery order “as it thinks proper.” This provision is subject to s.67V of the Act, in that in deciding whether or not to make the order, the Court must regard the best interests of the child, or children in this case, as the paramount consideration. Section 60CA of the Act provides:
“In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration”.
Section 60CB through s.60CC of the Act deal with how the Court determines the best interest of the child. The most relevant to today’s proceedings are the primary considerations in s.60CC(2) of the Act.
The Full Court of the Family Court decision of Goode & Goode [2006] FLC 93-286 (“Goode”) guides the Court’s approach when making interim decisions and interim orders in relation to parenting disputes.
At paragraph 81 of that decision, the Full Court states:
“In making interim decisions the Court will still often be faced with the conflicting facts, little helpful evidence in disputes between parents as to what constitutes the best interests of the child.”
More specifically, this raises the reality that the Court can not fully determine the issues of credit today as the evidence being presented by the parties to the Court is not being tested by cross-examination.
That having been said, in Goode the Full Court also stated in paragraph 81:
“However, the legislative pathway must be followed”.
That is to say that the relevant provisions of the Act post the 2006 shared parenting amendments, must be followed.
Primary considerations s.60CC(2)
Section 60CC(2)(a) of the Act requires the Court to consider the benefit of the child, or children in this case, having a meaningful relationship with both their parents. At this point, it is noted that meaningful does not mean equal, but it clearly signifies that both parents should be involved with their children and clearly signifies an expectation of time to be spent. The right of a child to spend time with each parent and extended family is clearly a right they have enunciated in s.60B of the Act. Consequently, the Court will, in all likelihood, need to give considerable weight to this factor at any final hearing, should such be needed.
Secondly, the Court is required under s.60CC(2)(b) of the Act to consider the need to protect the child, or children in this case, from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence. There is no doubt that it would be in the children’s best interests to develop a meaningful relationship not just with their father, but with their mother and vice versa. That needs to be balanced in respect to protecting the children from any physical or psychological harm and the like.
Given the nature of the allegations here, the Court is satisfied there is a need to test the issues as to whether the children have, in any way, been psychologically harmed by whatever may have occurred between the mother and Mr S in particular. There are issues here warranting investigation, and the Court needs to tread cautiously in the interim arrangements that will be necessary today and beyond.
Additional considerations s.60CC(3)
The Court notes that issues such as any “views” expressed by the child, the “nature of the relationship of the child with each of the child’s parents” and the “willingness and ability of the parent to facilitate and encourage a close and continuing relationship between the child and the other parent” will be flushed out in the fullness of time at any final hearing.
The family report, as proposed by Ms D, and the submissions of an Independent Children's Lawyer, if appointed, will be crucial in the Court reaching a decision which will finally determine these matters should the parties have been unable to resolve their dispute. Nevertheless, the Court notes at this stage that there is an issue about each parties “willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other parent.”
The Court also has to consider issues such as the “capacity of each of the child’s parents to provide for the needs of the child” and the “extent to which the child’s parents have fulfilled or failed to fulfil his or her responsibilities of parent”. These are also issues that will be determined at any final hearing of the matter.
The Court is also required, more specifically under s.60CC(3)(d) of the Act, to consider the
“likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from his or her parent or any other child or any other person, including any grandparent or other relative of the child, with whom he or she has been living”.
The risk that the children might suffer from any further relocation needs to be evaluated and balanced against the lack of any evidence that the current circumstances presents no obvious risk. The Court agrees with the recommendations of the family consultant in this respect.
Parental responsibility
Today, the Court is also required to apply presumption as required by s.61DA of the Act, that it is in the best interests of the child, or children in this case, for the children’s parents to have equal shared parental responsibility.
Section 61DA(2) makes it clear that the relative presumption does not apply if there are reasonable grounds to believe there has been abuse of the child or family violence.
Under s.61DA(4), the presumption may be rebutted if its application could be contrary to the child’s interests, those interests being determined by reference to the s.60CC matters as set out above. Of direct relevance to this hearing is s.61DA(3), which states that when a Court is making an interim order, the presumption applies unless the Court considers it would not be appropriate in the circumstances for a presumption to be applied when making that order.
In this context the Full Court in Goode stated at paragraph 78:
“A discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption or its rebuttal, difficult”.
This is relevant in this case as both parties in this case ask the Court for a sole parental responsibility order. On the evidence before the Court, and without any further investigation, the Court is not satisfied that the presumption is, indeed, rebutted.
Conclusion
While the Court understands the disappointment this decision may cause the mother in particular, given the gravity of the assaults she has allegedly suffered from her former partner, there is no evidence that the father has acted against the best interests of the children, and certainly not in more recent times. His decision to come to Victoria and oppose the application is evidence of his sincerity.
After considering the submissions in light of the evidence and Ms D’s oral report, the Court is not satisfied that a recovery order at this stage is in the children’s best interests.
Consequently the application by the mother for a recovery order is refused.
The Court is satisfied that the matter would be advanced by the transfer of the proceedings to the Family Court of Western Australia. Furthermore upon listing the matter the Family Court of Western Australia may consider offering a full family report to the parties in light of the circumstances and the appointment of an Independent Children’s Lawyer.
Until further order, the Court also orders today that:
a)The parties will have equal shared parental responsibility for the children;
b)The children are to live with the father;
c)The children spend time with the mother as agreed or, in default of these orders, all school holiday periods; and
d)The children be able to communicate by telephone with the parent that they are not living with.
The right to settle the reasons for this interim decision is reserved.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 29 September 2010
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