Beltran & Preston

Case [2025] FedCFamC1F 102

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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Beltran & Preston [2025] FedCFamC1F 102
Case
[2025] FedCFamC1F 102
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Mr Beltran and Ms Preston appeared before the Court to resolve a contentious parenting dispute over their three children. The children had been living with their father since the breakdown of the parties' de facto relationship in 2018, with the youngest child born in 2021. The mother had sought orders for the youngest child to live with her, and for all children to reside within a certain proximity to the father. The father sought orders for all children to live with him. The court had to decide whether the current living arrangements were in the best interests of the children and whether any proposed changes would better serve the children's needs.

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

No persuasive case was made by the parties or the Independent Children’s Lawyer (“the ICL”) to fundamentally depart from the current voluntary arrangements, which are now perpetuated, subject to the mother establishing her home closer to the father, as she agreed she could and would.BACKGROUND The parties were never married. The parties’ de facto relationship broke down in May 2018. A declaration was made to that effect by another judge under s 90RD of the Act in May 2023, though the mother still insists their de facto relationship did not break down until April 2021.[1][1] Mother’s affidavit at [7], [111] When their de facto relationship broke down in 2018, the mother vacated the family home.[2] The two eldest children, then aged nine and two years, remained in the father’s primary care and thereafter spent time with the mother on weekends and during holidays.[3] The parties acquiesced to that ad hoc arrangement for years.[2] Mother’s affidavit at [68][3] First Family Report at [14], [25], [60]; Mother’s affidavit at [69] The parties persisted with a sexual relationship. The youngest child was not born until 2021.[4] [4] Mother’s affidavit at [80] The father commenced these proceedings in June 2022, as he felt the mother did not allow him sufficient involvement in the youngest child’s life. The parties are still in financial dispute under Pt VIIIAB of the Act, but the two causes were bifurcated in February 2024 by another judge and these reasons deal only with the parenting dispute. The financial cause will be heard in due course. Interim orders were made in August 2022 with the parties’ consent, providing for the parties to have equal shared parental responsibility for the children, for the two eldest children to live with the father, for the youngest child to live with the mother, and for the children to spend time regularly with the non-residential parent. The implementation of those interim orders has not been easy. First, the mother has evidently breached the orders by not facilitating the youngest child’s time with the father, which time was to graduate and culminate in overnight stays in two of every three weeks. The youngest child still only spends several daytime hours with the father on those occasions. The mother has not yet allowed the youngest child to spend a single night with the father. In cross-examination she tried to imply that was the father’s choice, but the implication is rejected. It suited the mother for the youngest child not to spend more time with the father. Secondly, in January 2023, on the father’s application, the Court had to direct the mother to return the two eldest children to the father or otherwise suffer the execution of recovery orders. Additionally, an injunction was made restraining the mother from living too far from the father and the two eldest children, in default of which obligation the youngest child was required to move and live with the father and her siblings. The father and ICL could consent in writing to her living farther away, but she conceded in cross-examination they had not consented.

Evidence

Evidence Before The Court

At the outset, the ICL foreshadowed seeking orders for all children to live with the father, but did not tender any Minute of Orders. Instead, the ICL supported the father’s proposal, subject to some minor variations.EVIDENCE The parties decided to ignore procedural orders requiring their affidavits to be filed by 20 December 2024.[11][11] Order 5 made on 4/9/24 The father relied upon his affidavit filed on 3 February 2025, which was in the mother’s hands for six days ahead of the trial. The mother relied upon her affidavit filed on 9 February 2025, which was not served until the morning the trial was due to start. To overcome the procedural unfairness such late service of process wrought upon both the father and the ICL, the start of the trial was delayed by several hours. The voluminous annexures to the parties’ respective affidavits did not form part of their evidence-in-chief (r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)). The parties and the ICL were invited to tender any documents they regarded as being relevant to and probative of any fact in issue, but few were tendered.[12][12] Exhibit ICL1, Exhibit ICL2 and Exhibit M1 At a procedural hearing conducted on 4 September 2024, five months ahead of the trial, the mother was refused permission to rely upon numerous witnesses she nominated. The refusal was empowered by ss 69ZN(4), 69ZP, 69ZQ(1)(a), 69ZX(1) and 69ZX(2) of the Act.[13] The mother accepted the evidentiary decision and did not renew her application to rely upon any of those witnesses, or any others, at any time up to or during the trial.[13] Notation A made on 4/9/24 To clarify, the procedural orders only stopped the mother from calling her treating psychologist to give opinion evidence beyond the remit of her expertise about the mother’s parenting capacity, any opinions expressed about which were the province of the court child expert. Had the mother wanted to, nothing stopped her from calling her treating medical practitioners to give evidence about her various diagnoses, treatments and prognoses (r 7.01 of the Rules). The parties and the ICL relied upon two family reports, dated 14 February 2023 and 22 September 2024, compiled by the court child expert.LEGAL PRINCIPLES Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation (s 60B). When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA) and the Act specifies the criteria which must be considered when determining the form of orders which meets and promotes the child’s best interests (s 60CC). Parental responsibility for children is vested in their parents (s 61C(1)), regardless of whether they live together or are separated (s 61C(2)), but that situation only applies whilst ever no order is made to change it (s 61C(3) and s 61D). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B).

Decision

Reasons for decision

No other consideration was submitted to be relevant.CONCLUSION While the court child expert carefully explored the advantages and disadvantages for the children living with each party, ultimately, she felt unable to make any recommendations in the family reports about the most desirable parenting orders.[63][63] First Family Report at [124]; Second Family Report at [20] The two eldest children should live with the father. The mother did not contest the eldest child’s residence with the father. Although she formally contested the second child’s residence with the father, her counsel commendably conceded in final submissions that no justification could be reasonably advanced for any change to the second child’s residence. The two eldest children are thriving in the father’s primary care, where they will stay. The youngest child should continue to live with the mother, but only on condition that she relocates her residence closer to the father so the youngest child can then spend much more time with the father and her siblings. Supposing the youngest child spends much more time with the father and her siblings, the reasons for reversing her residence fall away. The mother’s primary care of the youngest child may not be optimal, but it is good enough. The reversal of the youngest child’s residence is liable to cause her emotional stress, as she would then be removed from the mother, to whom she is primarily attached.[64] The father’s residential care of the youngest child would likely be no less competent than that provided by the mother, but it is doubtful he could offer the youngest child any better standard of care than the mother, given his existing responsibilities for the eldest two children and his likely ongoing employment obligations. [64] First Family Report at [117] The mother was squarely confronted in cross-examination with the dilemma posed by her apparent resistance to the youngest child spending more time with the father. She affirmed she understood the problem and was willing to move to City F to overcome it – preferably so she could maintain the youngest child’s residence but, even if all three children were to instead live with the father, so she could be closer to them. Her preference was to remain living in City E with the two youngest children, but she was nevertheless willing to move to City F. She said in relation to the move “I will make it happen”. Since the mother currently maintains two rental homes in Sydney and City E at a total weekly cost of $850, she envisaged she could afford rental accommodation in City F. She did not suggest there were any other impediments to her immediate relocation, though she would need time to find and lease a home. Arrangements will also need to be made to change the youngest child’s therapists, all of whom are presently in City E. However, all the youngest child’s treating specialists are in Sydney, so they can still easily be consulted. Despite her expressed willingness to move to City F, the mother still initially pressed for an order enabling her to live in City E during final submissions.[65] When the inconsistency between her evidence and her application was identified, the mother amended her application to one which would enable her and the two youngest children to live within 150 kilometres of City F, which amended proposal did not cure the inconsistency. Understandably, the father and the ICL doubt the genuineness of the mother’s stated willingness and intention to relocate to City F in the face of her prevarication. Such doubts underpinned the maintenance of their joint application for the youngest child to live with the father.[65] Exhibit M2, proposed Order 12

Ratio Decidendi

Legal Principle Established

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