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Belko & Rushworth

Belko & Rushworth

Case [2022] FedCFamC2F 1631 28 November 2022

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Federal Circuit and Family Court of Australia
(DIVISION 2)
Belko & Rushworth [2022] FedCFamC2F 1631

File number(s): MLC 6272 of 2013

Judgment of: JUDGE BURT

Date of judgment: 28 November 2022

Catchwords: FAMILY LAW – PARENTING – RESIDENCE – Best interests – history of contravention by the mother of orders for the child to spend time and communicate with the father – child placed with father pursuant to interim orders – child spending no time with the mother for six months following the interim change of residence – mother spending supervised time only with child for the next six months – the child and the father engaging in regular family therapy – child reporting to family therapist that he was content in his father’s care, during the period for which he was spending no time with the mother – child expressing wholly negative views of the father following the commencement of supervised time with the mother – mother’s view of risk arising from father – where the child has been exposed to the mother’s views – where the child is aligned with the mother – where the child’s best interests require that he live with father and spend supervised time with the mother three hours per month on a final basis – the father to have sole parental responsibility.

Legislation:
Evidence Act 1995 (Cth), s 140

Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 65D, 69ZN, 114AB(2)

Cases cited:
Andrew & Delaine [2009] FamCAFC 182

Bant & Clayton [2019] FamCAFC 198

Ditcher & Fetzer [2014] FamCA 175

Grella & Jamieson [2017] FamCAFC 21

Godfrey & Sanders (2007) 208 FLR 287; [2007] FamCA 102

In the Marriage of Hall (1979) 29 ALR 545; (1979) 5 Fam LR 609; (1979) FLC 90-713; [1979] FamCA 73

Isles and Nelissen (2022) 65 Fam LR 288; [2022] FedCFamC1A 97

Belko & Rushworth [2019] FCCA 685

Belko & Rushworth [2019] FCCA 3112

Lennon & Lennon [2011] FamCA 571

Loddington & Derringford (No 2) [2008] FamCA 925

Masson v Parsons (2019) 266 CLR 554; (2019) 368 ALR 583; (2019) 59 Fam LR 503; [2019] HCA 21

Manifold & Alderton [2021] FamCAFC 61

Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520

Pavli & Beffa (2013) 48 Fam LR 677; [2013] FamCA 144

R and R: Children’s wishes (2000) 155 FLR 29; (200) 25 Fam LR 712; (2000) FLC 93-000; [2000] FamCA 43

Division: Division 2 Family Law

Number of paragraphs: 254

Date of hearing: 12, 13 and 14 October 2022

Place: Melbourne

Counsel for the Applicant: Mr Thistleton

Solicitor for the Applicant: Peter Lynch

Counsel for the Respondent: Mr Oldham

Solicitor for the Respondent: Vernon Da Gama and Associates

Counsel for the Independent Children's Lawyer: Ms Wiener

Solicitor for the Independent Children's Lawyer: Perry Weston Lawyers
ORDERS

MLC 6272 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BELKO

Applicant

AND:
MS RUSHWORTH

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE BURT

DATE OF…

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.

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Details

AGLC: Belko & Rushworth [2022] FedCFamC2F 1631
Case: [2022] FedCFamC2F 1631
Decision Date

CaseChat Overview and Summary

- **Parties, Nature of Dispute, and Court**: This case involves the parents of X, a child born in 2010, who are engaged in a lengthy legal battle over parenting arrangements. The Federal Circuit and Family Court of Australia (Division 2) is adjudicating the matter, with Judge Burt delivering the judgment.

- **Legal Issues**: The court must decide on the best interest of the child, X, in terms of his primary residence, the frequency and supervision of time spent with the non-resident parent, and the allocation of parental responsibility. Key issues include the impact of the mother's conduct on X's relationship with his father, the credibility of the parties' evidence, and the appropriateness of supervised contact between X and his mother.

- **Court's Reasoning and Outcome**: Judge Burt concluded that X's best interests are served by remaining in the care of his father, with supervised visits to his mother to prevent the negative influence she has on X's perception of his father. The court found that the mother's behavior has caused X to reject his father, leading to emotional harm. The court rejected the mother's allegations of family violence and determined that the father is capable of providing a stable and loving environment for X. The court ordered supervised monthly visits for X with his mother, with the frequency and supervision to be reviewed as conditions permit.

- **Final Orders**: The court ordered that X live with his father, with supervised visits to his mother. The father was granted sole parental responsibility, and the parents were ordered to share the costs of supervision. The court also made orders for communication between the parties and disclosure of court documents in certain circumstances, among other provisions.

Orders