Beston and Westlaw - [2013] FamCA 207

FAMILY COURT OF AUSTRALIA

BESTON & WESTLAW [2013] FamCA 207

FAMILY LAW – CHILDREN – Interim parenting orders – Trial part heard – Whether father to spend time with the children prior to final determination of the matter

Family Law Act 1975 (Cth) ss 60CC, 60CA, 61DA, 65AA, 121

Chalk & Plasto [2013] FamCAFC 48
Goode and Goode (2006) FLC 93-286; 36 FamLR 422
Marvel & Marvel (NO 2) [2010] FamCAFC 101
MRR v GR (2010) 240 CLR 461

APPLICANT: Ms Beston

RESPONDENT: Mr Westlaw

FILE NUMBER: BRC 562 of 2011

DATE DELIVERED: 5 April 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 25, 26, 27 and 28 March 2013
REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Looney SC

SOLICITOR FOR THE APPLICANT: Cassandra Pullos Lawyers

COUNSEL FOR THE RESPONDENT: Mr Wilson SC

SOLICITOR FOR THE RESPONDENT: Harrington Family Lawyers

Orders
IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER
1.That the Mother be restrained and an injunction issue restraining the Mother from in any way:
a.Suggesting, telling, inferring, ‘validating’ (as that concept is explained by the Mother in evidence) or discussing with the children (by word or act) any matters raised in these proceedings save that the Mother be permitted to tell the children that they are seeing Ms B on 5 April 2013;
b.Suggesting, telling, inferring, ‘validating’ (as that concept is explained by the Mother in evidence), or discussing with the children (by word or act) the orders sought by either party or otherwise proposed in these proceedings.

2.That the Mother deliver the children to Ms B at the Family Court of Australia at 2.30pm on Friday 5 April 2013 for the purpose of Ms B providing an explanation to the children of the interim orders of the Court made as a result of the interim application made 28 March 2013 and that, upon delivering the children to Ms B, the Mother vacate the Court premises immediately.

IT IS ORDERED UNTIL FURTHER ORDER
3.That Order 4 of the Orders dated 1 September 2011 be varied by the terms set out below.
4.That in order to facilitate the explanation of the Order by Ms B to the children, Ms B be provided with a copy of the Outline of Submissions relied on by each party for this interim hearing and a copy of the Reasons for Judgment delivered 5 April 2013.
5.That upon Ms B explaining the terms of the Order to the children, the children commence their time with the Father and they be released into his care.
6.That the children C, born … November 1999 and D (“the children”), born … October 2003 live with the Father:
a. From 3.00pm Friday 5 April 2013 until 5.00pm 7 April 2013;
b.On each alternate weekend, commencing 19 April 2013, from 3pm Friday until 9am on Monday;
c.For the second half of the children’s June/July 2013 and September/October 2013 school holiday periods.

7.That the time the children live with the Father pursuant to clause 6(a) above be…

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.

Continue reading Beston and Westlaw

Details

AGLC: Beston and Westlaw [2013] FamCA 207
Case: [2013] FamCA 207
Decision Date

CaseChat Overview and Summary

In *Beston & Westlaw* [2013] FamCA 207, the Family Court of Australia considered an application for interim parenting orders concerning two children, C (born November 1999) and D (born October 2003). The final hearing of the matter had commenced and was adjourned part-heard, with the father having not yet been cross-examined. The dispute centred on whether the father should spend time with the children prior to the final determination of the proceedings, following a period where the children had ceased spending time with him.

The court was required to determine the children's best interests in the context of interim parenting arrangements, specifically whether the children should recommence spending time with their father, including overnight stays. A key issue was how to facilitate the children's understanding and acceptance of any interim orders, particularly given their previous refusal to spend time with their father. The court also considered the application of the presumption of equal shared parental responsibility under section 61DA of the *Family Law Act 1975* (Cth) in the context of interim proceedings.

Hogan J applied the paramount consideration of the children's best interests, as mandated by section 60CA of the *Family Law Act 1975* (Cth). His Honour noted that both parents sought orders for the children to spend time with the father, including overnight and holiday periods, and that the mother expressed confidence in her ability to manage the children's behaviour to ensure they recommenced spending time with their father. The court found it was in the children's best interests to recommence spending time with their father immediately, as the hiatus was not beneficial and the children were entitled to continue and develop their relationships. The court also referenced *Goode and Goode* and *Marvel & Marvel (No 2)* regarding the presumption of equal shared parental responsibility, noting its application in interim parenting proceedings unless rebutted or inappropriate.

By consent, the court made orders restraining the mother from discussing proceedings with the children and requiring her to deliver the children to a family consultant, Ms B, for an explanation of the interim orders. Following this explanation, the children were to commence spending time with the father, with detailed provisions for interim parenting arrangements, including overnight stays and holiday periods. The court also made orders for the parents to attend family therapy, with the father to meet the initial costs, and granted leave for specific documents to be provided to the therapist under section 121 of the *Family Law Act 1975* (Cth).

Orders