Beiler & Jaskolski
[2024] FedCFamC1F 707
•22 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Beiler & Jaskolski [2024] FedCFamC1F 707
File number(s): CAC 2384 of 2022 Judgment of: GILL J Date of judgment: 22 October 2024 Catchwords: FAMILY LAW – PARENTING – Recovery order – Where parties’ eldest child has refused to return to the mother’s care in line with existing orders – Where a recovery application was made by the mother four days prior to the commencement of final hearing – Where the child was residing with the father and orders were made for him on the first morning of trial to meet with a Court Child Expert in City B on the second afternoon of trial – Memorandum prepared by Court Child Expert indicates that the child would not feel safe returning to the mother’s care – Orders made regarding who the child is to live with – Child to live with the father and remain in the City B region pending the making of further orders Division: Division 1 First Instance Number of paragraphs: 6 Date of hearing: 22 October 2024 Place: Canberra Counsel for the Applicant: Ms Tonkin Solicitor for the Applicant: Sarah Perkins Legal Counsel for the Respondent: Ms Paull Solicitor for the Respondent: Cohrssen Partners Pty Ltd ORDERS
CAC 2384 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BEILER
Applicant
AND: MR JASKOLSKI
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
22 OCTOBER 2024
THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:
1.The order for X to live with the mother is suspended.
2.X will live with the father.
3.The father is directed to ensure that X remains in City B pending the making of further orders tomorrow designed to secure X’s well-being.
IT IS FURTHER ORDERED THAT:
4.I direct that the solicitor for the mother forward to Ms C the affidavits filed by each of the parties in respect of the recovery proceedings, along with a copy of exhibit C2, along with a covering letter that indicates that she is requested to take those matters into account prior to giving evidence tomorrow at 10am.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
GILL J:
At present there are orders in place that provide for X, currently aged 14 and a half, to live with the mother and to spend time with his father. Those arrangements have been in place since separation and prior to interim orders being made. They are orders that provide not only that X lives with his mother, which also entails him living with his stepfather, two sisters and immediately adjacent to the maternal grandparents, it also provides for X to spend regular time with his father both in Town D which is where X lives and also in City E where the father lives. While in City E he is able to spend time with the father's immediate family there.
At present there is an order that X will remain in the care of his uncle Mr F pending further order. The circumstances of there being an issue as to where X will or will not be at present are confined to the arrangements for X this evening. Those arrangements are important to secure, under circumstances where although X has been living with his mother, he is now the subject of an application for a recovery order lodged by the mother on the basis that he was not returned to her care following school holiday time with the father. It is uncontroversial that he has not been so returned to the mother's care.
It is further uncontroversial that the father has asserted that he has attempted to arrange for X to return but X has refused. It is further uncontroversial that X has expressed directly to his mother that he will not immediately return to her care. That particular aspect has been the subject of a recording taken by the mother on her attendance upon X in City E immediately after his nonreturn in order to persuade him to return to Town D with her. X is recorded to have refused at that point.
Given the rapidly emerging situation urgent arrangements were put in place for X to be interviewed by a Court Child Expert which took place this afternoon and the report of which now constitutes exhibit C2 in these proceedings. At present it is not possible to accurately weigh the significance of the views that have been expressed by X to the Court Child Expert. However, the Court Child Expert records this:
[X] said that if orders are made for him to return to his mother’s care, he will not go, saying “there’s no way I feel safe enough to be there – If I go now, Mum and Nan will go off at me. They’d just be constant going off at me”. [X] said that he has not thought about what he would do if his father said that he could not stay with him but was adamant that he would not return to his mother’s care.
[X] appears keen to improve the relationship with his mother but is anxious that she will “hold a grudge”. He acknowledged that this is a stressful situation and appeared open to engaging with a counsellor to talk to someone outside of the family for additional support.
Under circumstances where not all matters are able to be adequately weighed, and where there is opportunity tomorrow to more closely weigh the material that has been garnered in the proceedings to determine what the appropriate interim arrangements will be for X pending the finalisation of this final hearing, the current state of X’s relationship with his mother and his strong expression of views are pivotal in determining that the arrangements tonight do not involve him staying in his mother's care.
Accordingly, pending further orders which it is anticipated will be made tomorrow, which may or may not include X returning to his mother's care, the arrangements for X to live with his mother will be temporarily suspended and an order will be made permitting him to live with his father.
I certify that the preceding six (6) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 28 October 2024
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