FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Beltran & Preston [2025] FedCFamC1F 102
File number: NCC 1850 of 2022 Judgment of: AUSTIN J Date of judgment: 25 February 2025 Catchwords: FAMILY LAW – PARENTING – Final orders – Where, for years with the parties’ consent, their two sons have lived with the father and their daughter has lived with the mother – Where the mother has not complied with interim orders – Where the mother has not facilitated the youngest child spending time with the father as ordered – Where the mother breached an interim injunction restraining her from moving too far from the father – Where the mother amended her application throughout the hearing – Where the mother sought orders for the two youngest children to live with her within a certain proximity to the father – Where counsel for the mother conceded there was no evidentiary foundation for the second child to live with the mother – Where the father sought orders for all children to live with him – Where the youngest child suffers from significant medical disorders – Where the father contended the mother’s diagnosed psychological conditions were liable to result in the youngest child’s needs being neglected – Where the mother has satisfactorily met the youngest child’s developmental, physical, psychological, and emotional needs – Ordered the two eldest children live with the father and spend time with the mother – Ordered the youngest child live with the mother on condition the mother relocates her residence closer to the father. Legislation: Family Law Act 1975 (Cth) Pts VII, VIIIAB, Div 8, ss 60B, 60CA, 60CC, 61B, 61C, 61D, 61DAA, 61DAB, 64B, 65AA, 65D, 69ZN, 69ZP, 69ZQ, 69ZX, 90RD
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.01, 8.15
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Franklyn & Franklyn [2019] FamCAFC 256
Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66
Sampson v Hartnett (No 10) (2007) FLC 93-350; [2007] FamCA 1365
Division: Division 1 First Instance Number of paragraphs: 92 Date of hearing: 10–12 February 2025 Place: Newcastle Counsel for the Applicant: Mr Murray Solicitor for the Applicant: Toronto Legal Counsel for the Respondent: Mr White Solicitor for the Respondent: Voros Lawyers Counsel for the Independent Children's Lawyer: Mr Mooney Solicitor for the Independent Children's Lawyer: Jennifer Blundell & Associates Pty Ltd ORDERS
NCC 1850 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BELTRAN
Applicant
AND: MS PRESTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
25 FEBRUARY 2025
Order amended pursuant to Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 on 26 February 2025
THE COURT ORDERS THAT:
1.All former orders in respect of the following children are discharged:
(a)X, born 2009 (“X”);
(b)Y, born 2016 (“Y”); and
(c)Z, born 2021 (“Z”).
2.The father and the mother shall retain parental responsibility for X and Y, but…
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CaseChat Overview and Summary
The court examined the evidence presented and found that the two eldest children were thriving in their father's care, and the mother had not provided a reasonable basis for the youngest child to live with her instead. The court also noted that the mother had not facilitated the youngest child spending sufficient time with the father, and had breached an interim injunction by not relocating closer to the father. The court held that while the mother was meeting the youngest child's needs, the current arrangement was not optimal, and that the youngest child's residence should change only if she could spend more time with the father and her siblings. The court concluded that the mother should relocate closer to the father so the youngest child could have more time with her father and siblings.
The court ordered that the two eldest children would continue to live with the father, and the youngest child would live with the mother, provided she relocated within 50 kilometres of the father. If the mother failed to relocate, the youngest child would also live with the father. The court also ordered that the children would spend specific times with the non-residential parent, and restrained the parties from denigrating each other in the presence of the children. The court emphasised the paramount importance of the children's best interests in reaching its decision.
Orders
Orders of the court
NCC 1850 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR BELTRAN
Applicant
AND:
MS PRESTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
25 FEBRUARY 2025
Order amended pursuant to Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 on 26 February 2025
THE COURT ORDERS THAT:
1. All former orders in respect of the following children are discharged:
(a) X, born 2009 (“X”);
(b) Y, born 2016 (“Y”); and
(c) Z, born 2021 (“Z”).
2. The father and the mother shall retain parental responsibility for X and Y, but in respect of whom the father has sole decision-making authority for all “major long-term issues” as defined in s 4(1) of the Family Law Act 1975 (Cth).
3. X and Y shall live with the father.
4. The parties shall take all reasonable steps to ensure X and Y spend time with the mother:
(a) during school terms, each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, commencing on the first Friday of each term;
(b) in the Autumn, Winter and Spring school holidays, from 9.00 am on the first Saturday of the holidays until 5.00 pm on the following Saturday;
(c) in the Summer school holidays,
(i) when the holidays start in December of an odd-numbered year, from 9.00 am on Boxing Day until 5.00 pm on 8 January; and
(ii) when holidays start in December of an even-numbered year, from 5.00 pm on Christmas Eve until 5.00 pm on 6 January.
(d) from 9.00 am until 5.00 pm on Mother’s Day.
5. For the purpose of implementing Orders 3 and 4, unless otherwise agreed in writing, the parties shall exchange X and Y at the father’s home.
6. The mother:
(a) shall, by 11 April 2025, establish her residence at an address within a radius of 50 kilometres from the police station at Suburb D, NSW;
(b) is thereafter restrained from establishing her residence outside that radius for the remainder of Z’s minority; and
(c) shall forthwith furnish to the father a copy of any residential lease into which she enters at any time after the date of these orders for the remainder of Z’s minority.
7. Subject to the mother’s compliance with Order 6:
(a) Z shall live with the mother.
(b) the mother and the father shall retain parental responsibility for Z, but in respect of whom the mother has sole decision-making authority for all “major long-term issues” as defined in s 4(1) of the Family Law Act 1975 (Cth).
(c) The parties shall take all reasonable steps to ensure Z spends time with the father:
(i) during school terms before the Winter school holidays in 2025, each alternate weekend from 5.00 pm Friday until 5.00 pm Saturday, commencing on the second Friday of each term;
(ii) during school terms after the Winter school holidays in 2025, each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, commencing on the second Friday of each term;
(iii) in the Autumn and Winter school holidays of 2025, for periods of 24 hours starting at 5.00 pm on the first, third and sixth nights of the week during which X and Y live with the father;
(iv) thereafter, in the Autumn, Winter and Spring school holidays, from 5.00 pm on the second Saturday of the holidays until 5.00 pm on the last Sunday of the holidays;
(v) in the Summer school holidays which start in December of an odd-numbered year:
A. from 5.00 pm on Christmas Eve until 9.00 am on Boxing Day; and
B. from 5.00 pm on 8 January until 5:00 pm on 22 January.
(vi) in the Summer holidays which start in December of an even-numbered year:
A. from 5.00 pm on 23 December until 5.00 pm on Christmas Eve; and
B. from 5.00 pm on 6 January until 5.00 pm on 20 January.
(vii) from 9.00 am until 5.00 pm on Father’s Day.
(d) from 9.00 am until 5.00 pm on Father’s Day.
8. In default of the mother’s compliance with Order 6:
(a) Z shall instead live with the father.
(b) the father and the mother shall retain parental responsibility for Z, but in respect of whom the father has sole decision-making authority for all “major long term issues” as defined in s 4(1) of the Family Law Act 1975 (Cth).
(c) the parties shall take all reasonable steps to ensure Z spends time with the mother:
(i) during school terms, each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, commencing on the first Friday of each term, during which time the mother is restrained from removing Z from within a radius of 50 kilometres from the police station at Suburb D, NSW;
(ii) in the Autumn, Winter and Spring school holidays, from 9.00 am on the first Saturday of the holidays until 5.00 pm on the following Saturday;
(iii) in the Summer school holidays,
A. when the holidays start in December of an odd-numbered year, from 9.00 am on Boxing Day until 5.00 pm on 8 January; and
B. when the holidays start in December of an even-numbered year, from 5.00 pm on Christmas Eve until 5.00 pm on 6 January.
(iv) from 9.00 am until 5.00 pm on Mother’s Day, during which time the mother is restrained from removing Z from within a radius of 50 kilometres of the police station at Suburb D, NSW.
9. For the purpose of implementing Orders 7 and 8, unless otherwise agreed in writing, the parties shall exchange Z at the father’s home.
10. Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.
11. Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party.
12. Each party shall inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number and email address.
13. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
14. The Independent Children’s Lawyer is discharged upon the latter of the determination of any appeal or the expiration of the applicable appeal period.
15. Any other outstanding applications under Pt VII of the Family Law Act 1975 (Cth) are dismissed.
16. The financial cause of action under Pt VIIIAB of the Family Law Act 1975 (Cth) is listed for procedural directions at 9.30 am on 11 March 2025.
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.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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