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Beitel & Beitel

Beitel & Beitel

Case [2021] FedCFamC2F 175 13 October 2021

Parenting Orders

Child's Best Interests

Shared Parental Responsibility

Restraint of Trade

Communication Between Parents

Family Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Beitel & Beitel [2021] FedCFamC2F 175

File number(s): MLC 4973 of 2021

Judgment of: JUDGE BENDER

Date of judgment: 13 October 2021

Catchwords:
FAMILY LAW – PARENTING – RELOCATION – the Mother seeks to relocate the residence of the parties’ three children aged 13, 11 and 7 to Melbourne from City C – the Mother maintains she will relocate to Melbourne regardless of what orders are made – the Father maintains he will stay in City C regardless of what orders are made – the Father proposes that it is in the children’s best interests to remain living in City C – the parties agree that the children should spend alternate weekends, most school holidays and special occasions with the parent they are not living with

HELD – the children remain living in City C with the Father – the children spend time with the Mother on alternate weekends, for most of school holidays and on special occasions

Legislation: Family Law Act1975 (Cth), ss 60B, 60CA, 60CC(2), 60CC(3), 61DAA

Cases cited: Taylor v Barker [2007] 37 Fam FLR 461
Fyfe v Kingsley [2020] FCCA 1535
AMS v AIF (1999) 199 CLR 160
U & U (2002) 211 CLR 238
Heath v Hemming(No.2) [2011] FamCA 749
MRR v GR [2010] HCA 4

Division: Division 2 Family Law

Number of paragraphs: 226

Date of last submission/s: 24 August 2021

Date of hearing: 23-24 August 2021

Place: Bendigo

Counsel for the Applicant: Ms Mallett

Solicitor for the Applicant: J A Middlemis

Counsel for the Respondent: Ms Swart

Solicitor for the Respondent: Dhillon Legal
ORDERS

MLC 4973 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BEITEL

Applicant

AND:
MS BEITEL

Respondent

ORDER MADE BY:

JUDGE BENDER

DATE OF ORDER:

13 OCTOBER 2021

THE COURT ORDERS THAT:
1.The parties have equal shared parental responsibility for decisions concerning the major long-term issues with respect to the children of the marriage X born in 2008, Y born in 2010 and Z born in 2014.
2.X, Y and Z live with the Father in City C.
3.X, Y and Z spend time and communicate with the Mother as follows:
(a)each alternate weekend during school terms from 6:00pm Friday until 5:00pm Sunday (and such time shall commence on Thursday if Friday is not a school day and continue to 5:00pm Monday if Monday is not a school day;
(b)for the first 10 days of each school term holiday period commencing 6:00pm on the last day of term until 5:00pm on the tenth day of the school holiday period;
(c)for one half of each long summer school holiday period as agreed between the parties and in default of agreement for the first half (including Christmas Day) in the 2021-2022 holidays, and each alternate year thereafter, from 10:00am on the first day of the holidays until 10:00am on the middle day of the holidays and for the second half on 2022-2023 and each alternate year…

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.

Continue reading Beitel & Beitel

Details

AGLC: Beitel & Beitel [2021] FedCFamC2F 175
Case: [2021] FedCFamC2F 175
Decision Date: 13 October 2021

CaseChat Overview and Summary

Beitel and Beitel involved a dispute between the parents of three children regarding their relocation from City C to Melbourne. The Mother sought to relocate to Melbourne, irrespective of the court's decision, while the Father intended to stay in City C regardless of the court's ruling. The Father argued that it was in the children's best interests to remain living in City C. Both parties agreed that the children should spend alternate weekends, most school holidays, and special occasions with the parent they were not living with.

The court had to determine whether the children should remain in City C or relocate to Melbourne and, if they were to remain in City C, what the appropriate parenting arrangements should be. The court considered the children's best interests as the paramount consideration, taking into account the children's views, the parents' capacity to provide for the children, and any other relevant factors.

The court decided that the children should remain living in City C with the Father. The court found that it was in the children's best interests to maintain their current living arrangements, schools, and community connections. The court ordered that the children spend time with the Mother on alternate weekends, for most of the school holidays, and on special occasions, as outlined in the orders. The court also made orders regarding communication, changeovers, and the parents' obligations to each other and the children.

The court's orders provide for equal shared parental responsibility for major long-term issues concerning the children. The children will live with the Father in City C and spend time with the Mother on alternate weekends, for most of the school holidays, and on special occasions. The court also made orders regarding communication between the children and each parent, changeovers, and the parents' obligations to each other and the children. The court restrained the parents from abusing, insulting, belittling, or rebuking each other in the presence or hearing of the children and from discussing the proceedings with the children or in their presence.

Orders

Orders of the court

1. The parties have equal shared parental responsibility for decisions concerning the major long-term issues with respect to the children of the marriage X born in 2008, Y born in 2010 and Z born in 2014.

2. X, Y and Z live with the Father in City C.

3. X, Y and Z spend time and communicate with the Mother as follows:

(a) each alternate weekend during school terms from 6:00pm Friday until 5:00pm Sunday (and such time shall commence on Thursday if Friday is not a school day and continue to 5:00pm Monday if Monday is not a school day;

(b) for the first 10 days of each school term holiday period commencing 6:00pm on the last day of term until 5:00pm on the tenth day of the school holiday period;

(c) for one half of each long summer school holiday period as agreed between the parties and in default of agreement for the first half (including Christmas Day) in the 2021-2022 holidays, and each alternate year thereafter, from 10:00am on the first day of the holidays until 10:00am on the middle day of the holidays and for the second half on 2022-2023 and each alternate year thereafter from 10:00am on the middle day to 5:00pm on the second last day before school term commences;

(d) on the weekend of Mother’s Day from 6:00pm Friday until 5:00pm on Sunday;

(e) for such further time in the City C area as may be agreed in writing upon the Mother giving the Father at least 7 days’ notice in writing.

4. X, Y and Z communicate with each parent when not in the care of that parent by telephone, FaceTime, Skype or video call as follows:

(a) each Wednesday between 6:00pm and 6:30pm;

(b) on each of X, Y and Z’s birthday’s between 6:00pm and 6:30pm;

(d) at any other reasonable time as requested by X, Y and/or Z.

5. Unless otherwise agreed, changeovers are to occur at the main entrance of McDonalds town D situated at E Street, Town D.

6. Each parent shall:

(a) keep the other parent advised at all times of their current residential address and telephone number;

(b) keep the other parent advised at all times of any telephone number for X, Y and/or Z;

(c) advise the other parent immediately in the event that X, Y and/or Z suffer any serious illness, injury or hospitalisation;

(d) authorise any medical practitioner which X, Y and/or Z may attend from time to time to communicate with the other parent in respect of X, Y and/or Z’s medical condition and/or treatment;

(e) provide to the other parent in a timely manner information in relation to X, Y and/or Z’s wellbeing; and

(f) authorise all schools at which X, Y and Z attend to:

(i) provide the other parent at their expense copied of all records, notices and photographs in relation to X, Y and Z;

(ii) communicate with the other parent with respect to X, Y and Z’s progress; and

(iii) subject to any school policy, allow the other parent to attend all functions to which parents are normally invited.

7. Each parent, their servants and their agents be and are hereby restrained by injunction from:

(a) abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or any member of their household in the presence or hearing of X, Y and/or Z and from permitting any other person to do so;

(b) discussing these proceedings with X, Y and/or Z or in the presence of X, Y and/or Z’s hearing other than to explain the effect of these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Beitel & Beitel [2021] FedCFamC2F 175

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 11 of 11 shown

Fawkner & Kado
[2020] FCCA 1535 Para 2

…number of principles to assist Judges when they are dealing with parenting matters where relocation is in issue. In paragraph [44] of Fyfe v Kingsley [2020] FCCA 1535, Judge McGuire (as he then was) summarised those principles as follows: (a)Relocation matters are to be determined generally in accordance with Part…
Heath & Hemming (No 2)
[2011] FamCA 749 Para 7

…In Heath v Hemming (No.2) [2011] FamCA 749, Justice Kent in paragraph [104] reviewed the authorities relating to parenting cases involving proposed relocation. In subsection (a) of paragraph 104 His Honour considered s.60CC(2)(a) and summarised the case law in relation to the benefit of the child having a meaningfu…
MRR v GR
[2010] HCA 4 Para 32

…In the matter of MRR v GR [2010] HCA 4, the High Court considered the interrelationship between s.60CA, s.61DA(1) and s.65DAA of the Act.…
Champness & Hanson
[2009] FamCAFC 96 Para 7

…FLC 93-313 per Dessau J at [38]-[39]; Godfrey v Sanders [2007] FamCA 102 per Kay J at [33]-[36] and Champness v Hanson [2009] FamCAFC 96; (2009) FLC 93-407 per the Full Court at [103]); (iv)concluded that “meaningful relationship” is a legal construct, not a psychological one. It is for the Court, not an expert, to…
Mazorski & Albright
[2007] FamCA 520 Para 7

…erpretation that a “meaningful relationship” is one which is important, significant and valuable to the child (citing Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 per Brown J and McCall v Clark [2009] FamCAFC 92; (2009) FLC 93-405 per the Full Court); (ii)concluded that the preferred interpretation of…
Godfrey & Sanders
[2007] FamCA 102 Para 7

…n optimal relationship. (Citing M v S [2006] FamCA 1408; (2007) FLC 93-313 per Dessau J at [38]-[39]; Godfrey v Sanders [2007] FamCA 102 per Kay J at [33]-[36] and Champness v Hanson [2009] FamCAFC 96; (2009) FLC 93-407 per the Full Court at [103]); (iv)concluded that “meaningful relationship” is a legal construct,…
M & S
[2006] FamCA 1408 Para 7

…confirmed that the legislation aspires to promote a meaningful relationship, not an optimal relationship. (Citing M v S [2006] FamCA 1408; (2007) FLC 93-313 per Dessau J at [38]-[39]; Godfrey v Sanders [2007] FamCA 102 per Kay J at [33]-[36] and Champness v Hanson [2009] FamCAFC 96; (2009) FLC 93-407 per the Full Co…
Bolitho & Cohen
[2005] FamCA 458 Para 1

…U v U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.…
U v U
[2002] HCA 36 Para 1

…e living arrangements, at least in so far as that approach is possible: see U v U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.…
AMS v AIF
[1999] HCA 26 Para 5

…of the parties proposals or such other arrangements as the Court determines given the Court is not bound by the parties’ proposals (see AMS v AIF (1999) 199 CLR 160, U & U (2002) 211 CLR 238), is in the children’s best interests. Section 60CC (2)…
McCall & Clark
[2009] FAMCAFC 92 Para 7

…, significant and valuable to the child (citing Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 per Brown J and McCall v Clark [2009] FamCAFC 92; (2009) FLC 93-405 per the Full Court); (ii)concluded that the preferred interpretation of “benefit to the child of having a meaningful relationship” in s60CC(2)…

Legislation cited in this decision · 1

Family Law Act 1975 (Cth)
60B, 60CA, 60CC(2), 60CC(3), 61DAA 6 mentions (from Para 35)

File number(s):	MLC 4973 of 2021
Judgment of:	JUDGE BENDER
Date of judgment:	13 October 2021
Catchwords:	FAMILY LAW – PARENTING – RELOCATION – the Mother seeks to relocate the residence of the parties’ three children aged 13, 11 and 7 to Melbourne from City C – the Mother maintains she will relocate to Melbourne regardless of what orders are made – the Father maintains he will stay in City C regardless of what orders are made – the Father proposes that it is in the children’s best interests to remain living in City C – the parties agree that the children should spend alternate weekends, most school holidays and special occasions with the parent they are not living with HELD – the children remain living in City C with the Father – the children spend time with the Mother on alternate weekends, for most of school holidays and on special occasions
Legislation:	Family Law Act1975 (Cth), ss 60B, 60CA, 60CC(2), 60CC(3), 61DAA
Cases cited:	Taylor v Barker [2007] 37 Fam FLR 461 Fyfe v Kingsley [2020] FCCA 1535 AMS v AIF (1999) 199 CLR 160 U & U (2002) 211 CLR 238 Heath v Hemming(No.2) [2011] FamCA 749 MRR v GR [2010] HCA 4
Division:	Division 2 Family Law
Number of paragraphs:	226
Date of last submission/s:	24 August 2021
Date of hearing:	23-24 August 2021
Place:	Bendigo
Counsel for the Applicant:	Ms Mallett
Solicitor for the Applicant:	J A Middlemis
Counsel for the Respondent:	Ms Swart
Solicitor for the Respondent:	Dhillon Legal

MLC 4973 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR BEITEL Applicant
AND:	MS BEITEL Respondent

ORDER MADE BY:	JUDGE BENDER
DATE OF ORDER:	13 OCTOBER 2021