Beiler & Jaskolski (No 2)
[2024] FedCFamC1F 711
•23 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Beiler & Jaskolski (No 2) [2024] FedCFamC1F 711
File number(s): CAC 2384 of 2022 Judgment of: GILL J Date of judgment: 23 October 2024 Catchwords: FAMILY LAW – PARENTING – Recovery application – Where the parties’ eldest child is living with the father and refusing to return to the care of the mother who has filed a recovery application – Where it is necessary to determine interim arrangements for the child pending the completion of final hearing – Where the child is aged 14 ½ and it is clear he will not return to the mother – Orders made for the child to live with the father and for the father to have sole parental responsibility in relation to education – Final hearing adjourned pending the completion of a further family report Division: Division 1 First Instance Number of paragraphs: 15 Date of hearing: 21-23 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:
23 OCTOBER 2024
THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:
1.Order 1 of the orders of 24 January 2023 is discharged and remade in the following terms:
(a)The parties have shared and equal parental responsibility for the children to the marriage namely X, born 2010, Y, born 2012 and Z, born 2016, save that the father hold sole parental responsibility regarding long-term decision-making for X with respect to education.
(b)The father shall keep the mother informed as to X’s enrolment status and authorise the school in which X is enrolled to provide the mother with all information relevant to X.
2.Order 2 of the orders of 24 January 2023 is discharged and remade:
(a)Y and Z shall live with the mother and X shall live with the father.
3.X is at liberty to call and message the mother at such times as he chooses.
4.The father and mother shall together make all reasonable efforts to promptly arrange for therapy between X and the mother and to cause X to participate in such at their joint expense.
5.The trial of these proceedings is adjourned to 29 January 2025.
6.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and X, born 2010, Y, born 2012 and Z, born 2016, (“the children”) attend upon Court Child Expert (practicing under their appointment as a family consultant), Ms C, for the purposes of the preparation of a family report, such report to be released at the next available opportunity and that the family report address:
(a)any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(b)the impact upon the child and upon the child’s relationship with the mother if the Court made orders as sought by the father;
(c)the impact upon the child and upon the child’s relationship with the father if the Court made orders as sought by the mother;
(d)any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the child.
7.Not later than 4.00 pm on 1 November 2024 the parties must provide their contact telephone numbers and email addresses to …@….
8.Each party will do all things necessary to ensure the child/ren attend upon to the Family Consultant pursuant to s 62G(3A), unless otherwise determined by the Court Child Expert that s 62G(3B) applies.
9.The parties and the child/ren attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
10.The Family Consultant shall be at liberty to inspect any material filed by the parties, and otherwise the following:
(a)Any section 67ZBD or 67ZBE, or subpoena material produced in these proceedings.
(b)Any other relevant material presently before the Court in admissible form.
IT IS NOTED THAT
A.The Court Child Expert has advised in Court that the report can be prepared and available for release in December prior to Christmas.
IT IS FURTHER ORDERED THAT
11.Upon the family report being provided to the Court the Court will release the report and provide a copy to each party (or if represented, the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
12.Unless a party objects in writing within 14 days of the date of releasing the family report, a copy of the family report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
13.Unless otherwise ordered, no person shall release the family report, or provide access to the family report to any other person.
14.The mother’s application for a recovery order is dismissed.
15.The father is at liberty to communicate to X that he will be seeing the Court Child Expert, Ms C, for the preparation of a further Family Report.
16.The father is at liberty to advise X that he is free to contact the mother at any point that he chooses.
17.The father is at liberty to explain to X the orders that provide for him to engage in therapy with his mother.
18.Despite the father being part way through cross-examination in the final proceedings, the father is at liberty to take advice from and give instructions to his lawyers for the further preparation and conduct and potential resolution of the case.
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:
This is an interim determination about the parenting arrangements for X pending the further resolution of this matter by final hearing listed to take place commencing on 29 January 2025.
The application and response that need to be dealt with on an interim basis come in a context of three days of final hearing, of which this is the third.
Parenting arrangements for a child, including interim parenting arrangements, are to be determined on the basis that the child’s best interests are of paramount consideration. The context in which an interim determination is made is necessarily absent the full testing of the evidence. Being at day three of the final hearing, only partial testing of the evidence has taken place, along with partial evidence being presented to the court, and partial cross-examination of the father. No final factual determinations are yet available to be made. The uncertainty in relation to factual conclusions is a matter that must be taken into account in making an interim determination but particular concentration should, where possible, be given to those matters between the parties that are less contentious or provable by other material.
There are a large number of uncontentious aspects in relation to this application which involves where X will live pending the final resolution of the proceedings, and whether or not a recovery order will issue to have him returned to live with his mother. Those less contentious matters include:
(1)There are interim orders that have been in place for a significant period of time providing that X will live with the mother, and in accordance with those orders he has been living with the mother. It may be observed that X has lived with the mother throughout the intact relationship between the parents and since their separation.
(2)Those arrangements were uncontroversial as a final resolution between the parties until approximately a week ago. That is, until approximately a week ago there was no contest but that X would live primarily with the mother.
(3)The father did not return X in accordance with court orders that provide for X to spend time with him approximately one week before the commencement of this trial, purportedly based on X’s refusal, the father offering to return X if he was able to sort out X’s refusal.
(4)X, who is aged 14, has expressed his refusal to return to the mother directly to the mother.
(5)X has been resistant to efforts by the maternal family to secure his return.
(6)Yesterday X attended upon a Senior Court Child Expert, in order to have his views about the matter recorded and presented to the court, and reiterated in strong terms to that Court Child Expert his refusal to return to the mother and his expression of concerns about being returned, including expressing that he did not feel safe to do so.
(7)No part of the case alleges that the mother presents a risk of physical harm to X or any of the children.
(8)The mother and father live approximately seven hours apart, the father living in the City E area, the mother and children living in the Town D area.
(9)X’s siblings, Y and Z, remain living with the mother.
(10)X is now at the point of commencing the final term of his year eight and is currently missing attendances at his school which is located in the Town G area.
It is in that context that the mother seeks a recovery order.
The father seeks a discharge of the orders that X live with the mother, seeks orders in relation to parental responsibility, and for X to live with him pending the further determination of the matter.
Accordingly, it may be observed that the father’s proposal results in significant disruption for X and X’s siblings, including for X to potentially attend a new school. The mother’s proposal is to somehow force X, where other efforts have failed, to achieve his return home so that he might maintain connections with her, his siblings, his broader family and his community including his school.
As noted, the context is pending partially complete final hearing, now to be adjourned until January next year to allow for an updated Family Report. The need for that updated Family Report arises due to the issues surrounding the events of X’s refusal to return, and now the father’s pursuit of orders that X would live with him.
Although not fully tested the court has had the assistance of evidence from the Family Report writer, who has been in part cross-examined, who was the author of the Child Impact Report and Family Report. She was provided with material from the parties relevant to this interim application and also the report prepared by the Senior Court Child Expert of what X had to say yesterday. She notes the importance of a broader assessment of the family and the views of the sibling group, and it is on the basis of this evidence that it proved necessary that the trial be adjourned to allow an updating of that report. She also observes uncontroversially the importance of the restoration of the relationship between X and the mother. The father and the mother both appeared to accept that it is necessary that this takes place. She further expressed concerns as to how it is that X would deal with being forced to return to the mother, noting that there are unknown repercussions of such.
In determining X’s best interests, the key considerations are those contained at s 60CC of the Act, in this instance involving the benefits of relationship between X his parents, his broader family and his siblings. They involve the capacity of the parents to care for X, X’s needs and X’s views.
The mother is correct to observe that there are strong reasons to have X return to Town D, being strong reasons not to disrupt his living arrangements by remaining in City E. She emphasises the possibility of having X return, noting it is for a potentially short period pending the final resolution of the matter and it is in the context of the Family Report which will, it may be expected, canvass carefully X’s views about the matters and the potential resolution of the matter by X’s ultimate return to City E.
However, the starkest issue is X’s views and refusal to return. Those are the matters that have brought the proceedings to this point. The mother has done her absolute utmost to have X return to her. The maternal grandparents, or grandmother, has also made significant efforts to secure such. It is the father’s evidence that he also has done what he can to do so. Yet despite efforts from both of the parents, X has remained resistant, he has been resistant to the mother’s face on her attendance at City E to secure his return, he is reportedly not communicating with the mother at all at present and he has expressed his resistance to the Senior Court Child Expert who interviewed him yesterday.
There can be no expectation that X, aged 14 and assessed previously at the Child Impact Report as a mature young person, will at this stage, comply with orders that deal with his return to the mother, nor is there any realistic immediate prospect that the parents can cause him to return.
In expressing the views that he has to the Court Child Expert, X has acknowledged the difficulties that he will now face as a result of this, including the need to engage at a new and very different school from his current school, and also in terms of keeping contact with his siblings. Yet it is palpably clear that he will not go to the mother.
This resistance is also illustrated by the mother’s seeking of a recovery order. Ultimately, if the parents were, as it may be anticipated they will be, unable to cause X to return to the mother a police attendance will be necessitated. It was put on the part of the mother that it was important to pursue this step such that X not be able to dictate what was going to occur for him, his family and his siblings. However, if the matter did come to police attendance, or it may be thought even the immediate threat of police attendance, the potential harm to X’s now troubled relationship with his mother looms as a significant risk. How it might be asked would a 14 year old mature young person, who has refused the mother directly, then perceive her in the light of the police attending on him? Under the totality of the circumstances outlined X’ views hold sway to determine that no recovery order should be made and there should be a discharge of his current living arrangements with his mother. Those circumstances also require that the father be at liberty to exercise parental responsibility regarding long-term decisions for X’s education while keeping the mother in the loop. Given the importance of the restoration of the relationship an attempt to restore the relationship between X and his mother by therapy, orders will also be made for the mother and father to cooperate and encourage X to participate in such pending further resolution of the matter.
I certify that the preceding fifteen (15) 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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