BELDOCK & BELDOCK

[2020] FCCA 3136

FEDERAL CIRCUIT COURT OF AUSTRALIA

BELDOCK & BELDOCK [2020] FCCA 3136

Catchwords:
FAMILY LAW – Parenting and property – concerning three children aged one, three and five years old – where the mother makes serious allegations of sexual abuse of a child by the father – where the mother’s allegations are uncorroborated and unsupported by evidence – where there are six properties owned by the parties – where the property issues are not particularised – where a trial is likely to take in excess of four days – transfer to the Family Court of Australia.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR BELDOCK

Respondent: MS BELDOCK

File Number: DNC 413 of 2020

Judgment of: Judge Young

Hearing date: 3 November 2020

Date of Last Submission: 3 November 2020

Delivered at: Darwin

Delivered on: 3 November 2020

REPRESENTATION

Counsel for the Applicant: Ms Noble

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the Respondent: Ms Dudley

Solicitors for the Respondent: Kimberley Community Legal Services

ORDERS

1. That these proceedings are transferred to the Family Court of Australia at Darwin to be listed on a date to be fixed by that Court.

IT IS NOTED that publication of this judgment under the pseudonym Beldock & Beldock is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 413 of 2020

MR BELDOCK

Applicant

And

MS BELDOCK

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting and property matter involving three children who are age five, three and one.  The mother makes allegations that the children, or at least one of the children, has disclosed to her on repeated occasions that the father has touched the penis of that child, in context, in a sexual way. 

3. The mother has apparently referred those allegations to the Child Welfare Authorities in Western Australia, as far as I can see, many months ago.  She provides no evidence that the Child Welfare Authorities in Western Australia have acted in any way on that allegation.  So at this stage they are simply uncorroborated, unsupported allegations.

4. The allegations, however, are specific and they are reasonably detailed.  They do, of course, depend entirely upon the credibility of the mother.  It was put to me that this was a case that comes within the protocol for division of work between the Family Court of Australia and the Federal Circuit Court, that is:

   Serious allegations of sexual abuse of a child warranting transfer to the Magellan list or similar list where applicable…

5. I am not aware that the Family Court continues with a Magellan List, but, all the same, the substance of the criterion is there are serious allegations of sexual abuse of a child.  I consider that they are serious allegations of sexual abuse in the sense that if true, they are of the utmost seriousness.  Whether or not they are true may be doubted because, as I have said, at this stage they are unsupported by any corroborative or independent evidence and rely entirely upon the credibility of the mother.  Nevertheless, I am satisfied they are serious in the sense that I have described. 

6. The other issue is that there are property matters concerned in this case.  I am told there are six properties owned by the parties in New South Wales and Victoria with a net value of $600,000.  I was told by Ms Noble that she thinks that there should be an agreement to sell all the properties.  She was not able to tell me much more than that. 

7. The mother’s property application has not been particularised.  I might add that, ordinarily, that would leave the application at risk of being dismissed.  I would strongly recommend that the mother’s legal advisers particularise that without delay. 

8. Unfortunately, neither counsel were able to assist me very much on the question of the likely length of the trial in this matter, but I am satisfied that it is likely to be in excess of four days, considering what I consider is a likely lengthy cross-examination of the father and the mother, and the fact that the property issues are completely un-particularised. 

9. Neither party could assist me on the issues in any substantial way, and taking that into account I think I should err on the side of caution, particularly as there are six properties and no one was able to tell me what the contribution issues were.  All in all, I am satisfied that a trial for the matter is likely to take in excess of four days and ought to be transferred to the Family Court on the basis of the protocol. 

10. The other issue is that Ms Dudley appearing for the mother made an oral application, unsupported by any affidavit, for a transfer to the Family Court of Western Australia.  That application was opposed.  Ms Dudley told me from the bar table that she thought it would be more convenient for the parties because both parties travel from Town C, where they live, regularly to Perth. 

11. Beyond that bald assertion, which was of very limited assistance, I was given no real assistance in deciding the question of the balance of convenience in any change of venue.  I do note that the Family Court of Australia regularly visits Darwin and conducts trials in Darwin, which is about 10-hours drive from Town C or less by air.  I am not satisfied that the balance of convenience requires transfer to the Family Court of Western Australia and the application is refused.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 17 November 2020