Beldock & Beldock
[2021] FamCA 444
•25 June 2021
FAMILY COURT OF AUSTRALIA
Beldock & Beldock [2021] FamCA 444
File number(s): DNC 413 of 2020 Judgment of: BERMAN J Date of judgment: 25 June 2021 Catchwords: FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Relocation – Interim – Where the mother has unilaterally relocated with the children from Darwin to Perth – Where the father seeks a recovery order – Where one of the children has significant health issues – Where more is needed before the Court can make an assessment on where the children should live – Where it is not currently in the best interests of the children to be returned into the primary care of the father – Where a meaningful relationship can be maintained by significant blocks of time spending – Orders.
FAMILY LAW – PRACTICE AND PROCEDURE – Change of venue – Where the mother seeks that the matter be transferred to the Family Court of Western Australia – Where no evidence is placed before the Court as to the basis – Where the application currently has no merit.
Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC, 60CC(2) Cases cited: Deiter & Deiter [2011] FamCAFC 82
Marvel v Marvel (2010) 43 Fam LR 348
Number of paragraphs: 91 Date of hearing: 8 June 2021 Place: Adelaide Counsel for the Applicant: Mr Ward Solicitor for the Applicant: Clairs Keeley Lawyers Counsel for the Respondent: Ms Farantouris Solicitor for the Respondent: Withnalls Lawyers ORDERS
DNC 413 of 2020 BETWEEN: MR BELDOCK
Applicant
AND: MS BELDOCK
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
25 JUNE 2021
UPON NOTING That the matter is listed for a first day hearing in anticipation of a trial date in the January/February 2022 circuit in Darwin.
THE COURT ORDERS:
1.That the mother’s application seeking that the proceedings be transferred to the Family Court of Western Australia, Perth Registry is dismissed.
2.That the matter be listed for a first day hearing on 22 July 2021 at 9.15am (CST) in Darwin.
3.That paragraph 2 of orders made 21 September 2020 be suspended.
4.That the children X born … 2014, Y born … 2016 and Z born … 2018 (collectively “the children”) shall spend time with the father as follows:
(a)For ten (10) consecutive nights during terms 1, 2 and 3 of the Western Australian school holidays;
(b)For twenty eight (28) consecutive nights during the 2021/2022 Western Australia summer school holidays; and
(c)At such other times as may be agreed between the parties but in default of agreement not to exceed ninety six (96) hours on a date and time as may be nominated by the father upon him giving the mother fourteen (14) days’ notice.
5.That pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and the children attend upon and at the direction of a family consultant nominated and appointed by the Director of Child Dispute Services of the Northern Territory Registry for the purposes of the preparation of a family report to be conducted in Darwin with the parties and the children to be physically present.
6.That the mother do forthwith disclose to the father her contact details and the residential address of the children.
7.That the mother authorise any preschool or primary school which the children attend to release information pertaining to the children to the father upon his request.
8.That the mother forthwith advise the father of the name and contact details of all health and allied health professionals that are involved in the children’s care and that she further authorise them to disclose information to the father as to the health, welfare and wellbeing of the children upon his request providing that he shall be responsible for any fee that may be incurred.
9.That the mother be restrained and an injunction granted restraining her from leaving the children or any of them in the care of a third person or persons for a period exceeding twenty four (24) hours unless it is with the consent of the father.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Beldock & Beldock has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
Mr Beldock (“the father”) and Ms Beldock (“the mother”) are in dispute as to the future parenting arrangements for X born in 2014, Y born in 2016 and Z born in 2018.
Following a relationship that commenced in 2009 and a marriage in 2013, the parties separated on the mother’s case on 31 March 2019 and on the father’s case on 4 October 2019.
The father commenced the proceedings by Initiating Application filed 5 August 2020. Whilst the father was not able to particularise the final orders sought pending the release of a family assessment report, by way of interim arrangements he conceded that the children should live with the mother and spend regular time with him as follows:
2. …
(a) Each Saturday from 8.30am to 5.30pm;
(b) Father’s Day from 8.30am to 5.30pm;
(c) Christmas Day from 12.00pm to 7.00pm; and
(d)For not less than four hours on the children’s birthdays, being 22 September, 27 November and 5 December.[1]
[1] Initiating Application filed 5 August 2020, page 11.
By Response filed 18 September 2020, the mother also sought leave to further particularise the final orders sought by her at a later date but on an interim basis agreed with all of the interim orders sought by the father other than the extent to which the father sought to communicate with the children, namely up to five occasions each week. The mother was prepared to agree that the father should communicate with the children each Monday, Tuesday, Wednesday and Thursday by Facetime between 2.30 pm and 3.00 pm.
The father’s Amended Initiating Application filed 14 September 2020 did not seek to amend the interim orders sought.
On 21 September 2020, Judge Young made orders by consent that the children live with the mother and spend time with the father as agreed between the parties but failing agreement as sought by the father.
The following notation to the interim consent order is relevant to the current hearing:
UPON NOTING
That if an application is to be made to transfer the matter to the Family Court of Australia or the Family Court of Western Australia then the parties are expected to be in a position to argue the matter with reference to any evidence.
It is apparent that the mother contemplated that as part of her final orders sought, that the children would live with her in Perth, Western Australia as opposed to remaining in Town C, Northern Territory.
Notwithstanding that the orders of 21 September 2020 were by consent until further order, the mother relied upon her affidavit filed 18 September 2020.
The affidavit provides a detailed assessment of the medical needs that impact upon each of the children, but in particular X and underpins the mother’s current proposal that the children remain living with her in Perth.
X has been diagnosed with a medical condition which presents as a significant joint disorder and partial deafness.
X’s treatment requires frequent travel to consult specialists out of the Northern Territory and in particular Perth. The mother contends that in 2019 there were twelve trips although as X has grown older the number of trips per year has lessened.
Z sees a specialist once or twice per year to assess her kidney function.
The financial costs of meeting X’s medical needs appears to be significant. To date, treatment has been provided both in Sydney and in Perth.
The family has been assisted by NDIS funding but the mother contends that there are significant and ongoing out of pocket expenses for the children and herself which are exacerbated by the remoteness of Town C.
The mother is also concerned that X and Y may be engaging in sexualised behaviour.
The mother also alleges that the father has perpetrated family violence by his controlling and emotionally abusive behaviour.
The mother insinuates that the father may be responsible for the children demonstrating oppositional conduct and considers that whilst the children should maintain a relationship with the father, she remains concerned as to their safety in his care.
The father rejects the mother’s allegation that he may have engaged in behaviour consistent with sexual abuse of the children or that he has perpetrated family violence.
The father contends that the mother’s allegations are without substance and are designed to assist in her proposal that the children be permitted to relocate from Town C and reside with the mother in Perth.
Following consent orders made on 21 September 2020, the proceedings were adjourned to 3 November 2020.
Judge Young transferred the proceedings to the Family Court on the basis that the mother had made serious allegations of sexual abuse, although at that time the allegations were unsupported by any corroborative evidence.
His Honour also rejected an oral application that there be a change of venue to the Family Court of Western Australia in Perth.
FATHER’S APPLICATION
On 11 May 2021, the father filed an application seeking that the mother deliver up the children to him and that thereafter they remain in his primary care and spend time with the mother as may be agreed.
In default of the mother delivering up the children to the father, he seeks that a recovery order pursuant to s 67Q of the Family Law Act 1975 (Cth) (“the Act”) be made.
The mother filed an Application in a Case on 12 May 2021 and seeks the following orders:
1.Paragraphs 2 and 4 of the Orders made on 21 September 2020 be dismissed.
2.The children reside with the Respondent Mother in Perth, Western Australia.
3.The children spend time with the Applicant Father for 7 consecutive nights during the term 1, 2 and 3 school holidays.
4.The children spend time with the Applicant Father for 21 consecutive nights during the summer school holidays.
5.The Applicant Father be at liberty to spend additional time with the children on special occasions in Perth at times agreed between the parties.
6.The children X and Y do attend B School.
7.The Applicant Father and Respondent Mother do all things and sign all documents necessary to facilitate compliance with the preceding paragraph.
8.The proceedings be transferred to the Family Court of Western Australia, Perth Registry.
The father relies upon his affidavit filed 11 May 2021. Whilst he does not disagree with the broad diagnosis and prognosis for X, he considers X’s medical appointments are now on a six month to yearly basis and when required to travel to Perth, his airfares, accommodation and some meals are provided by C Services. Other appointments are by remote consultation.
Prior to the mother’s departure with the children, X attended a local Town C kindergarten.
On 30 April 2021, the mother relocated the residence of the children to Perth.
The father acknowledges that on 10 February 2021 he received correspondence from the mother’s solicitor setting out her proposal to relocate with the children to Perth. The father contends that he did not provide his consent to the mother’s proposal but rather the parties should await a final hearing in respect of both parenting and financial matters.
It appears that the parties came to an interim agreement that the children would live with the mother and spend time with the father after school each Wednesday until 5.00 pm and on each Friday from after school to 5.30 pm Saturday.
The father became aware of the possibility that the mother may relocate, having observed on social media that a garage sale had been arranged and that she was selling household items including furniture and other personal effects.
On 27 April 2021, the father received the following text message from the mother:
Hello Mr Beldock,
Hoping to finalize moving this week.
I know this has been on the cards for ages but with the current unpredictability of the Perth housing market making it challenging we have Secured a house that will allow easy access to the Children’s Hospital, therapies, along with better education and opportunities for all the children.
Lawyer sending documents regarding move.
I am sure the kids would like to spend as much time as possible with you until you are able to relocate yourself. Please let us know the times you can make for them before we fly out Friday.
Please also see the email sent on 21/4 asking for your contributions on schooling as I would like the children miss as little of school as possible.
Kind regards
Ms Beldock [2]
[2] Affidavit of the father filed 11 May 2021, annexure “B5”.
As anticipated, the mother’s intention to relocate the children to Perth was confirmed on 28 April 2021 in correspondence received from the mother’s solicitors setting out the reasons for the mother’s intended move and proposing a final parenting arrangement.[3]
[3] See ibid annexure “B6”
The letter from the mother’s solicitors refers to the next hearing before the said Federal Circuit Court on 13 May 2021 and provides the following summary of the mother’s plans for relocation:
[The mother] instructs she has been speaking to [the father] regarding her plans to relocate to Perth with the Children on 30 May 2021 and [the father] and [the mother] have arranged for [the father] to spend time with the Children from this afternoon until Friday, when they intend to depart Town C to fly to Perth.[4]
[4] Ibid.
The solicitor’s communication is predicated upon the mother seeking the father’s consent to move to Perth with the children.
The mother’s affidavit filed 12 May 2021 contends that she relocated to Perth with the children on 30 April 2021 on the understanding that the father had consented to the relocation. She says as follows:
21.I was not aware that I should have arranged for the Family Court orders, which are currently in place, to be amended before I relocated.
22. I now seek to retrospectively to amend those orders.
23. I have signed a 12 month lease for a house in the inner suburbs of Perth.
The father denies the mother’s assertion that in March 2021 the parties agreed orally that the mother could relocate to Perth with the children. The mother relies upon a discussion with the children in late March 2021 wherein they told her that the father had indicated his intention to leave Town C and take up residence in Perth.
The mother seeks to clarify the inconsistency in her solicitor’s letter in that it was always her intention to relocate to Perth on 30 April 2021.
The mother restates her reason for relocation. She sets out that the move was predicated upon X’s complex medical needs and the difficulty she had in being able to leave Y and Z in Town C when X needed medical assistance in Perth.
The mother works as a trainee truck driver on an 8 day on and 6 day off roster.
She is not able to care for the children during the times that she works and relies upon friends to assist with care or must pay for the children’s care.
Her employment is at a production site near D Town which is serviced from Perth. Previously the mother travelled from Town C to Perth to connect with the flight to the site.
The mother alleges that the father perpetrated “complex, coercive family violence.”[5]
[5] Affidavit of the mother filed 12 May 2021, paragraph 56.
The mother does not continue her earlier allegations that the children are unsafe in the care of the father or that they are at risk of sexual abuse or behaviour by the father which could result in the children adopting or exhibiting sexualised behaviour.
INTERIM PARENTING
In Marvel v Marvel (2010) 43 Fam LR 348 the Full Court considered the manner in which interim parenting proceedings should be considered where there is contested evidence as follows:-
[120]As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing: section 61DB.
[121] …
[122]In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88]In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [100] their Honours amplified their comments and said:-
[100]The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Where the contested facts relate to an assessment of risk, a greater level of caution should be exercised, however, in Deiter & Deiter [2011] FamCAFC 82 the Full Court said:-
61.… In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
THE LAW
Section 60B of the Act outlines the objects and principles underlying Pt VII of the Act namely:-
(1)The objects of this Part are to ensure that the best interests of children are being met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that the Court must have regard to the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out the primary and additional considerations that the Court must take into account in determining what is in the best interests of a child.
The primary considerations as outlined in s 60CC(2) of the Act are:-
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the primary considerations as set out in s 60CC(2), the Court is to give greater weight to the considerations set out in sub-paragraph (b).
The father seeks that a recovery order be made to force the delivery up of the children to his care.
A recovery order should not be considered as a stand-alone process. By necessity, it must be ancillary to a parenting order. A recovery order cannot be used as a form of punishment or as a process to return the parties and the children to a previous status quo in order to thereafter determine the ongoing parenting arrangements for the children.
As was conceded by the mother, the orders made on 21 September 2020 are ongoing. I note that there was an informal amendment to the provisions of the order arising from the parties’ further agreement in March 2021.
The circumstances between the parties are complex. It is conceded that Town C is remote and that X has required medical assistance and intervention in Sydney and Perth. The parties are not agreed as to whether X can be adequately cared for whilst remaining in Town C.
The more significant concern of the father is the arrangements for the care of the children when the mother attends her place of employment. At present, the father is employed as a professional and works Monday to Friday 8.00 am until 5.00 pm. In contrast, the mother works an 8 day on, 6 day off roster. At present, the mother’s position is that her employment is currently on hold. The mother does not advise as to the likely future arrangements if and when she decides to return to work.
Given the circumstances of each of the children, it is a reasonable concern of the father that he is available to look after the children whereas the mother is only able to do so by employing child carers or utilising family or friend support.
MEANINGFUL RELATIONSHIP
Both parties agree that the interests of the children are served by them maintaining a meaningful relationship with each of the parties.
The mother seeks to bring to account allegations of family violence, neglect of the children by the father when in his care and at an earlier time in the proceedings, raised the spectre of the children being at risk of sexual abuse perpetrated by the father.
Those allegations have fallen away and as discussed, there is nothing alleged in the mother’s current affidavit which raises the issue of sexual abuse although it is referred to in the Notice of Risk.
The orders sought by the mother would provide for the children to spend substantial time in the father’s care during each of terms 1, 2 and 3 school holidays and for 21 consecutive nights during the summer school holidays.
It appears from the affidavit’s filed by each of the parties that the orders now sought by the mother are those that she promoted in March 2021 as part of the attempts by the parties to negotiate final orders.
The mother’s proposal encompassing the time that the children should spend with the father is inconsistent with her allegations of sexual abuse and family violence.
ABILITY OF EACH OF THE PARTIES TO SUPPORT THE CHILDREN
The children are currently in the sole care of the mother. Whilst it is likely that prior to separation the mother undertook most of the child related obligations, upon the mother returning to work the children will be cared for by a stranger.
In addition, the orders put in place by the parties in September 2020 and then slightly amended by their subsequent agreement in March 2021 provided for no overnight time. As such, there is scant basis for the orders now sought by the father namely, that the children live with him and spend time with the mother as may be agreed.
A CHANGE IN THE CHILDREN’S CIRCUMSTANCES
The mother’s actions in relocating the children has had a dramatic effect on them.
They have left their home in Town C, their school and school friends and are only able to see the father by electronic communication. The children have spent no time with the father since the mother’s unilateral move with the children on 30 April 2021.
The orders sought by the father would see the children return to Town C. I am not told of the arrangements for the mother if she were to return with the children. Given the history of the matter, it is likely that she would return with the children.
Accommodation remains uncertain. There is no proposal by the father that would cater for accommodation for the mother and the children.
I do not consider that at this stage the father has established that it would be in the best interests of the children that they return to his primary care. Equally, I am not satisfied that the mother’s conduct has been child focused. She concedes that she should have taken steps to have the orders of 21 September 2020 dismissed or suspended. I do not accept her assertion that she did not know that she needed to be more transparent of her intentions.
I consider that the mother’s conduct has been ill-conceived, in particular as to the arrangements for the care of the children when and if the mother returns to work.
The mother has not made her plans clear as to when she will return to work and if so what the arrangements are for the care of the children in circumstances where the father contends he is available to do so.
The consequence of the orders sought by the father may well now be equally as unsettling for the children as was the mother’s move to Perth.
I must focus on the needs of the children, even if in doing so each of the parties consider that the outcome may be unfair. I give consideration to the separate proposals of the parties.
CONCLUSION
More needs to be done before the Court is able to assess whether the children should remain in Perth with the mother or return to Town C and live with the father.
It is regrettable that the children will remain in a state of some uncertainty for some time. I propose to list this matter for a first day hearing in anticipation of a trial date in the January/February 2022 sittings of the Darwin circuit.
I have given careful consideration to the mother’s application for a change of venue. I do not consider that the application as currently formulated has merit.
His Honour Judge Young dismissed the mother’s counsel’s oral application for a change of venue to the Family Court of Western Australia.
The position has not further advanced for the mother. She places no evidence before the Court as to the basis upon which there should be a change of venue. No information is available to assess whether the parties may be given a timely hearing in order to resolve their differences.
I suspect that a hearing of all outstanding issues in January/February 2022 would be significantly in advance of that which could be offered by the Family Court of Western Australia.
In anticipation of the final hearing, an order should be made under s 62G(2) of the Act in circumstances where the parties and the children will be in Darwin for the interview and assessment.
The current uncertainty regarding the residential whereabouts of the children and the mother’s proposal for their care if and when she returns to work requires urgent intervention.
I propose to suspend the orders of 21 September 2020 and put in place orders that would enable the children to spend 10 consecutive nights during the terms 1, 2 and 3 school holidays.
The father’s time during the Christmas school holiday period should extend to 28 consecutive nights.
The mother will need to disclose the residential address of the children and provide the father with her contact details if not already known to him.
In the absence of evidence as to the mother’s plans upon her return to work, I propose to order that the mother be restrained from leaving the children in the substantial care of any other person other than for short periods of supervision.
The parties should not assume that there has been any prejudgment of the issues in contention or that a decision has been made enabling the children to relocate to Perth.
In suspending the order of 21 September 2020, I recognise that the children will benefit from less disruption rather than the present uncertainty of their accommodation, education and living arrangements if they returned to Town C.
I consider that the significant blocks of time will enable the children to maintain a relationship with their father thereby enabling the Court to consider which of the options presented by the parties will best suit the children’s needs.
For those reasons I make the orders that appear at the commencement of these reasons.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 25 June 2021
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