BECKERT & BECKERT

[2019] FamCA 768

FAMILY COURT OF AUSTRALIA

BECKERT & BECKERT [2019] FamCA 768

FAMILY LAW –CHILDREN – Parenting – Best interests – With whom a child spends time – Orders – Variation – Leave to proceed undefended – Oral application – Interim parenting and procedural orders made – Where s 102NA of the Family Law Act 1975 (Cth) applies.

APPLICANT: Ms Beckert

RESPONDENT: Mr Beckert

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 13463 of 2017

DATE DELIVERED: 23 October 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Hartnett J

HEARING DATE:

8 October 2019

9 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Williams on 8 October Ms Jenkins on  9 October

SOLICITOR FOR THE APPLICANT: Will Jones

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT: In Person

COUNSEL FOR THE ICL: Ms Bonney

ORDERS MADE 9 OCTOBER 2019

1. All extant applications are adjourned for final hearing on a date to be fixed in March 2020 (with an estimated hearing time of 5 days).

2. The Respondent father file and serve a Response to the Applicant mother’s Further Amended Application filed 8 October 2019, together with a financial statement, within 21 days hereof.

3. The Respondent father file and serve an affidavit of evidence in chief on or before 20 November 2019 at 4pm.

4. In the event the Respondent father fails to comply with orders 2 and 3 herein then there is liberty to the Applicant mother to proceed undefended on a date to be fixed.

5. In the event the Respondent father complies with orders 2 and 3 herein then:

   (a)the Applicant mother file and serve any further affidavit on which she seeks to rely on or before 28 January 2020;

   (b)The Respondent father file and serve any further affidavit on which he seeks to rely on or before 21 February 2020.

6. The Independent Children’s Lawyer file and serve any material on which the Independent Children’s Lawyer relies at least 7 days before trial.

7. Pursuant to s 102NA of the Family Law Act 1975 (Cth) the Respondent father shall not be at liberty to cross examine the Applicant mother.

8. The costs of the Applicant mother and Independent Children’s Lawyer for 8 October 2019 are to be determined at trial and are reserved.

9. Leave is provided to the Applicant mother and Independent Children’s Lawyer to make an oral application for variation of the orders made 3 September 2018.

10. Order 3 of the orders made 3 September 2018 is varied such that the children, X born … 2013, and Y born … 2013, and Z born … 2013, spend time with the Respondent father each alternate weekend commencing 12 October 2019 from 10am to 6pm on each of Saturday and Sunday.

11. Consequent upon such variation, as provided for in order 10 herein, order 6(b) of 3 September 2018 is discharged.

12. Order 6(a) of the orders made 3 September 2018 is amended pursuant to r.17.02(1)(e) of the Family Law Rules 2004 (Cth) (the slip rule) to delete ‘THE’.

AND THE COURT NOTES THAT:

A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D.If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Beckert & Beckert has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13463 of 2019

MS BECKERT

Applicant

And

MR BECKERT

Respondent

REASONS FOR JUDGMENT

Preliminary

1. The proceeding to which this judgment relates was an Application in a Case filed 23 August 2019 by the Applicant mother. That Application in a Case sought essentially property and enforcement orders, but additionally sought (in paragraph 4) an order that:

   Pursuant to order 19 of the orders of the Federal Circuit Court dated 31 May 2019, the Applicant have liberty to proceed to trial on an undefended basis.

2. The Applicant mother sought a payment of costs on an indemnity basis.

3. The Independent Children’s Lawyer (‘ICL’) also sought liberty to proceed on an undefended basis in respect of the making of final parenting orders in the proceedings. The ICL had emailed to the Applicant mother and Respondent father, in an email dated 3 October 2019, a minute of proposed final orders as sought by the ICL. 

4. Counsel for the Applicant mother indicated to the Court on 8 October 2019 that the Applicant mother would consent to the final parenting orders as sought by the ICL on that day, and to the extent that they differed from those sought by the Applicant mother in the Applicant mother’s Amended Initiating Application filed 14 May 2019, the orders sought by the ICL were to be preferred.

5. The Respondent father opposed the application for leave to proceed undefended.  In addition, he opposed the making of the orders numbered 1, 2 and 3 as sought by the Applicant mother in the Application in a Case. He sought a further adjournment of the proceeding to enable him to put necessary affidavit material before the Court. 

6. As at 8 October 2019, the Respondent father had filed, since the making of orders of Judge Kelly in the Federal Circuit Court of Australia on 31 May 2019 (to which I shall return):

   a.an affidavit filed 23 August 2019 sworn by Ms L on 23 May 2019, wherein Ms deposed, relevantly, that she had been an employee of K Pty Ltd [the business of the Respondent father] since “in or about September 2012”, and as a result, she has known the parties’ children since “early 2014”. She observed the children and their father to have a loving and happy time when together; and

   b.an affidavit filed 23 August 2019 affirmed by the Respondent father on 22 August 2019, wherein he, relevantly, acknowledged non-compliance by him of earlier orders of the Court, in particular of a procedural kind.

7. The Respondent father stated his opposition to the Applicant mother and the ICL proceeding on an undefended basis, that being “a draconian proposition”.  He proposed providing material (he had to that time failed to file) “in accordance with any further order made by this honourable Court”.

8. On 8 October 2019, the Court was ultimately required to adjourn the proceedings to the following day due to the Court’s concern that the Respondent father appeared unable to properly participate in the proceedings, being not competent to do so. Counsel for the Applicant mother and Counsel for the ICL submitted to the Court, respectively, that:

   a)“I believe based on my sense of smell and observation that the Respondent [father] is appearing here at Court today significantly intoxicated”; and

   b)“I have observed the same thing as Mr Williams in terms of the smell of liquor. In terms of capacity I can’t make an assessment as to his neurological capacity…but my observations are that he does smell of alcohol and does appear to be affected [by it]”

9. The submissions were such, and the Respondent father’s presentation such, that the Court determined the Respondent father would be better able to participate in the proceedings in an alcohol-free, or nearly so, state. The Respondent father was requested to, but declined to, attend at a nearby police station for the purpose of the conducting of a breath analysis test. Instead, he indicated to the Court that he was “happy to come back [on the 9 October 2019]” and “happy to use [his] breathalyser and blow zero” in front of the Court. Accordingly, there was an adjournment of proceedings over to the following morning.

10. On 9 October 2019, the Respondent father participated in the proceedings.  His demeanour was improved (by reference to the day before) and before the Court he undertook a self-administered breath analysis test which indicated a blood alcohol concentration of 0.097%. The Respondent father indicated that his reading was attributable to the consumption by him of half a bottle of vodka during the night prior. He declared himself competent to participate.

11. The Respondent father was granted leave to file an affidavit sworn by Ms M on 8 October 2019.  Ms M alleged she is “in a stable relationship” with the Respondent father and has been for over two and a half years. Whilst the contents of this affidavit went to Ms M’s assertions that the Respondent father and children have a good relationship, the Respondent father being a “loving, caring and attentive father”, the affidavit made no mention of the consumption or otherwise of alcohol and/or illicit drugs by the Respondent father, nor the impact of the Respondent father’s ongoing consumption of alcohol on the household and on their relationship.  Whilst the Respondent father relied upon affidavits of his employee, Ms L, and his partner, Ms M, he continued to omit to file an affidavit of evidence-in-chief such that the Court has no evidence of the Respondent father before it, as ordered by Judge Kelly, on 31 May 2019. It is useful at this point to set out those orders together with some of His Honour’s reasoning in respect of them.

12. On 31 May 2019, Judge Kelly, in the Federal Circuit Court of Australia, made the following orders: 

    (1)The trial of the proceeding, fixed for hearing pursuant to paragraph 3 of the Order made on 26 February 2018, be adjourned to a date to be fixed.

    (2)Pursuant to r 8.02 of the Federal Circuit Court Rules 2001, the proceeding be transferred to the Family Court of Australia at Melbourne.

    (3)The Applicant have leave nunc pro tunc to file and serve her Amended Initiating Application dated 14 May 2019.

    (4)On or before 4:00pm on Wednesday, 31 July 2019, the Respondent file and serve:

    (a)a Response to the Amended Initiating Application filed on 14 May 2019, indicating where he agrees or disagrees with the final orders sought by the Applicant and containing any further orders or directions which he seeks by way of final relief;

    (b)an affidavit by which the Respondent shall address, insofar as he proposes to respond, each matter in the Applicant’s affidavit sworn on 14 May 2019, and the Family Report of Mr A dated 9 January 2019;

    (c)each further affidavit on which he proposes to rely;

    (d)an updated Financial Statement; and

    (e)an Outline of Case, not exceeding 20 pages, providing his response to the Outlines of Case filed by the Applicant and the Independent Children’s Lawyer respectively, each filed on 22 May 2019, and any further matter on which he may rely in seeking final relief.

    (5)Direct that by 4:00pm on Monday, 3 June 2019, the Applicant notify the Respondent of the names of two accountants that she proposes should prepare the taxation returns and financial statements for the Beckert Family Trust (the Trust), for the financial years ended 30 June 2017 and 30 June 2018 (taxation returns and financial statements).

    (6)By 4:00pm on Friday, 7 June 2019, the Respondent shall select one of the two accountants nominated by the Applicant pursuant to paragraph 5 of this Order and notify the Applicant of such selection for the purposes of preparation of the Trust’s taxation returns and financial statements (the Accountant).

    (7)In default of compliance with paragraph 6 of this Order, the Applicant be at liberty to nominate the Accountant.

    (8)Direct that forthwith upon the nomination of the Accountant pursuant to paragraph 6 or 7 of this Order, the Applicant:

    (a)request the Accountant to provide a list of all documents and information that the Accountant may require so as to prepare the Trust’s taxation returns and financial statements;

    (b)engage the Accountant to prepare and furnish to the parties the Trust’s taxation returns and financial statements.

    (9)Within 21 days of the receipt of the Accountant’s response to the request made pursuant to paragraph 8(a) of this Order, the parties shall as soon as is reasonably practicable do all acts and things, produce all documents and records which are in their possession, custody and control and sign all documents, whether in their personal capacity or as directors of the trustee of the Trust, Beckert Pty Ltd (ACN …) (Trustee), as may be necessary to enable the Accountant to prepare and lodge the Trust’s taxation returns and financial statements.

    (10)The parties forthwith do all acts and things required to engage the Accountant to furnish advice to the parties as to

    (a)whether the Beckert Self-Managed Superannuation Fund (SMSF) is a compliant self-managed superannuation fund; and

    (b)if it is not, the steps that are required to make the SMSF a compliant self-managed superannuation fund and the consequences of failing to do so, and in default of such engagement by 4:00pm on Friday, 7 June 2019, the Applicant be at liberty to engage the Accountant for that purpose.

    (11)The fees payable to the Accountant for the work undertaken pursuant to paragraphs 8 and 10 of this Order be paid from the monies held by the Applicant’s solicitors, Sayer Jones Pty Ltd, in Westpac Bank BSB … Account Number … on trust for the parties in their capacity as directors of the Trustee (Account …).

    (12)By 4.00pm on Wednesday 31 July 2019, the Respondent shall do all acts and things as may be necessary to:

    (a)lodge his personal taxation return for the financial year ended 30 June 2018;

    (b)lodge the taxation return for K Pty Ltd for the financial year ended 30 June 2018; and

    (c)serve a copy of each such taxation return on the Applicant.

    (13)The parties forthwith do all acts and things as may be necessary to authorise that the monies payable to the Applicant pursuant to paragraph 8(a) of the consent Engrossed Minute annexed to the Order made on 26 February 2018 be paid to the Applicant from the monies held in Account 60-2542.

    (14)The parties forthwith do all acts and things to authorise:

    (a)an interim distribution of monies to the Applicant in the sum of $35,000 with such sum to be characterised at trial;

    (b)payment of the outstanding annual review fee charged by ASIC in the sum of $592 respecting Beckert Investments Pty Ltd, with such payments to be paid from the monies held by LMG Lawyers on trust for the Applicant in Trust Account No ….

    (15)In default of compliance with paragraphs 11, 13 or 14 of this Order the principal of Sayer Jones Pty Ltd, William Henry Jones, be authorised pursuant to section 106A of the Family Law Act 1975 (Cth) to do all acts and things and execute all instruments as may be necessary to enable the respective payments to be made and to give validity and operation to these Orders and each such instrument.

    (16)Forthwith upon the payments to be made pursuant to in paragraphs 11, 13 or 14 of this Order, the balance of monies currently held by LMG Lawyers and Toner & May Legal respectively on behalf of the parties personally or in their capacity as directors of the Trustee or the Trustee be paid to Sayer Jones Pty Ltd, with such monies to be held until further order in interest bearing Controlled Monies Accounts (CMA), as follows:

    (a)as to the monies currently held on behalf of the parties themselves, to be invested in a CMA in the names of the parties;

    (b)the monies currently held on behalf of Beckert Investments Pty Ltd to be paid into the Account ….

    (17)Direct that service of a sealed copy of this Order upon LMG Lawyers and Toner & May Legal respectively shall be sufficient evidence of the parties’ authority for each firm of lawyers to do all acts and things and make such payments as are to be made pursuant to this Order.

    (18)By 4:00pm on Monday, 3 June 2019, each party provide to the other a list of the documents, disclosure and production of which they seek and within 21 days of such request being made, the other party shall respond to that request attaching each of the documents sought or, if unable to be produced, details as to why production is unable to occur.

    (19)In default of compliance with this Order, either party have leave to apply for the proceeding to be heard on an undefended basis.

    (20)The respondent pay the applicant’s costs of the trial vacated on 27 May 2019, fixed in the sum of $15,000.

13. In his comprehensive reasons for judgment, His Honour noted that his reasons for judgment explained: 

    why orders have been made: adjourning a trial; regulating the future conduct of the matter; determining an application for costs, and; transferring the proceeding to the Family Court of Australia.[1]

    [1] Judgment of Judge Kelly in the Federal Circuit Court of Australia on 31 May 2019, paragraph 1.

14. Paragraph 2 of His Honour’s reasons for judgment was as follows:

    “The applicant wife commenced the proceeding by an initiating application filed on 20 December 2017.  In the ensuing 17 months, orders have now been made by the court on thirteen occasions.  It is unnecessary to recount the orders that were made on each occasion”.

15. In the course of His Honour’s judgment, Judge Kelly was required, amongst other matters, to deal with the Respondent father’s then application for an adjournment of the trial, such application involving the exercise of judicial discretion. His Honour’s findings and reasoning was as follows:

    At [47]: “I was far from convinced as to the adequacy of the respondent’s explanation for the proposed adjournment.  While the affidavit evidence such as it was pointed to the lateness of service of the applicant’s trial affidavit and its apparent volume, it was not surprising given the nature of the issues that have bedevilled this litigation since its inception.  The respondent’s belated reply to the compliance check received shortly before the appointed trial date stated that he was ‘taken by surprise’ and noted that it contained 100 lies which he would refute with extensive documentation of his own.  Unlike the respondent, I am not at all surprised that the applicant proceeded on the basis that she would be put to proof on all issues.  While the Response fails to furnish particulars of the orders that the respondent submits to be appropriate on all issues, the failure to address those matters is compounded by the fact that the proceeding was set down for trial in February 2018, the Family Report was released in January 2019 and there is no Outline of Case”.

    At [48]: “There has been continuous failure in complying with orders and the explanations for not having done so are unconvincing.  Since September 2018, the parties were agreed that the net proceeds of the sale of the various properties would be held in controlled monies accounts to be managed by the applicant’s solicitors.  The failure to take the steps that were reasonably required to secure that those monies were so deposited has had the result that the parties are deprived of the opportunity to earn interest on those monies for so long as they remain in a trust account. The more likely reason why those monies have not been deposited into such accounts is explained by the respondent’s resistance to the idea that the accounts will be managed by the applicant’s solicitors.  As discussed in the course of submissions, there may well be a question whether the loss of the interest on those monies represents a form of waste that may properly fall for consideration in identifying the total asset pool”.

    At [49]: “Likewise, there has been the failure to prepare a joint statement of assets and liabilities.  The failure to do so resulted in the making of further orders that had as their object that a joint statement of assets and liabilities would be filed (even if this served to identify those items about which there was agreement or dispute)”.

    At [50]: “I have noted above the respondent’s failure to file any affidavits, a current Financial Statement, an Outline of Case and the complaints respecting the making of full financial disclosure.  The belated disclosure that the respondent intends to call 7 witnesses and that the trial will be of 10 days duration underscores my concern that the respondent has failed to make disclosure of those matters earlier.  Neither of those matters had been revealed by the applicant on any of the previous occasions on which the matter had been listed for mention.  The significant waste of the court’s resources is self-evident”.

    At [52]: Just as it is settled that the conduct of litigation is not merely a matter for the parties but is also one for the court, I have taken account of the need to avoid disruptions in the business of this court and prejudice to the interests of other litigants.  A more immediate question of prejudice in this case arises from the need to consider the best interests of the children.

    At [53]: For the reasons above, I would not have granted the adjournment save that I concluded it to be in the children’s best interests that the respondent be afforded a final opportunity to put on his evidence so that the position of the children might be fully considered.

1. Following his determination to further adjourn the trial of the proceedings, Judge Kelly made orders, in particular, as set out in orders 4 and 19 of the orders of 31 May 2019. The Court notes paragraphs 60 and 61 of His Honour’s reasons in that regard:

   At [60]: The Respondent proposed that he be allowed a period of 21 days in which to file his Response, affidavits, Financial Statement and Outline of Case.  As I have determined that the matter should proceed undefended if orders are not complied with, the Respondent should be allowed until by 4:00pm on Wednesday, 31 July 2019 to file and serve:

   a)a Response to the Amended Initiating Application indicating where he agrees or disagrees with the final orders sought by the Applicant and containing any further orders or directions which he seeks;

   b)an affidavit by which the Respondent shall address, insofar as he may seek to respond, each matter in the Applicant’s Trial Affidavit and the Family Report of Mr A;

   c)each further affidavit on which he proposes to rely;

   d)an updated Financial Statement; and

   e)an Outline of Case, providing his response to the Outlines of Case filed by the Applicant and the Independent Children’s Lawyer and any further matter on which he relies in seeking final relief.

   The respondent was substantially agreed in those orders.

   At [61]: In light of the procedural history to date, I will order that in default of compliance with the filing and service of that material, the applicant be at liberty to apply for the proceeding to be heard undefended.  That order will be expressed more broadly so as to enable such application to be made if there be any default in compliance with the Order as made.

Consideration

1. The Respondent father is a litigant in person. The Respondent husband was born in 1973, and he is 46 years of age. He has conducted work in his own business, on his own evidence, for 20 years.  He operates a business, K Proprietary Limited, and has done so since March 2009. 

2. The Applicant mother is legally represented. The Applicant mother was born in 1975, and she is 44 years of age.  She is a qualified healthcare worker. 

3. Before their marriage in 2007, the parties had cohabitated from some time in 2005. The parties separated, under the one roof, in about May 2016.  Physical separation occurred when the Respondent father was arrested, following a family violence incident, in early April 2017. During the course of the incident, the Respondent father was removed by the police from the home in which the parties resided. Throughout the parties’ cohabitation, as set out in the Applicant mother’s affidavit filed 15 May 2019, a significant and constant issue was the Respondent father’s consumption of alcohol. That significant issue has remained from separation until the present time. It raises the question of how the parties’ children might spend time with their father, without being at risk of harm.

4. The parties have three children, X and Y, who are twins, (born in 2013) and Z (born in 2013) (collectively referred to as “the children”). The children are nearly 6 years of age. The Applicant mother’s evidence as contained in her affidavit filed 15 May 2019 is that each of the children were born in Country N by way of surrogacy using donor eggs together with the Respondent father’s sperm.[2] X and Y are twins born of the same surrogate. Z was born of a separate surrogate. The Applicant mother, Respondent father, and their children, returned from Country N to Melbourne on 8 January 2014. The Respondent father returned to work, and the Applicant mother remained at home to care for the children.

   [2] Applicant mother’s affidavit filed 15 May 2019, paragraph 175.

5. The Applicant mother filed her Initiating Application on 20 December 2017.  Since that time, she has filed an Amended Initiating Application and on 8 October 2019, filed a Further Amended Initiating Application. The final parenting orders as sought by the Applicant mother in that document did not exactly replicate those orders as sought by the ICL on the 8 October 2019.

6. In her Further Amended Initiating Application, the Applicant mother applies for, amongst other things, sole parental responsibility for the children; that the children live with her until demonstration by the Respondent father that he has been abstinent from the consumption of alcohol and illicit substances for a period of at least 12 months; and a regime of daily time spent with between the Respondent father and children to be from 5 pm each Wednesday until 7 pm and during school term from 10 am to 6 pm on each of Saturday and Sunday on each alternate weekend.

7. Further and other times are set out by the Applicant mother in respect of school holidays as set out in her Further Amended Initiating Application filed 8 October 2019.  The Applicant mother also seeks, relevantly, that the father’s time with the children be conditional upon him:

   At [9.1]: ‘Not being affected by alcohol at any time when the children are in his care or he is having any contact with them whether face to face or by phone or other social media;

   At [9.2]: Producing a nil reading for blood alcohol on a breath analysis testing device, at the commencement and conclusion of each period of time he spends with the children;

   At [9.3]: Engaging in an intensive programme of Drug and Alcohol Counselling for no less than 12 months, and complying with all reasonable directions of his treating health professionals, including as to [his] ongoing attendance at therapy;

   At [9.5]: In relation to his time…that his partner Ms M or such other person as agreed be in substantial attendance at all times.

8. Otherwise, the Applicant mother seeks an adjustment of property interests between the parties and the Respondent father’s payment of the Applicant mother’s costs on an indemnity basis.

9. The Respondent father in his response filed the 26 April 2018 sought orders for equal shared parental responsibility and un-particularised orders for spend time arrangements in relation to the children. The Respondent father also sought orders for the adjustment of property interests between the parties, again un-particularised.

10. On 18 February 2019, Judge Kelly in the Federal Circuit Court of Australia ordered, relevantly, as follows:

    (1)Paragraph 2(a) of the Order made on 20 April 2018 and paragraph 3 of the Order made on 3 September 2018 be varied such that, until further Order the Children spend time and communicate with the husband:

    (a)each alternate weekend from 7.00pm on Friday until 7.30am on Monday; and

    (b)as may otherwise be agreed between the parties in writing;

    with the mother to collect the children from the father’s residence upon the conclusion of such time.

    (2)Intentionally omitted

    THE COURT ORDERS BY CONSENT THAT:

    (3)Each parent do all such acts and things required to renew the Passports for the children, X, born on … 2013, Y, born … 2013 and Z, born … 2013 (the Children).

    (4)The mother be permitted to travel to Country P with the Children from 4 – 11 June 2019.

    (5)The father be provided with make-up time with the Children for any time missed with the father as a result of the travel permitted by paragraph 4 of this Order.

    Order 1 above remains operative.

11. On 9 October 2019, the Respondent father sought a further adjournment of the proceedings in circumstances where, save for the affidavit of Ms L, the Respondent father had complied with no part of order (4) of the orders made by Judge Kelly on 31 May 2019, thus triggering the operation of order (19) of those same orders, as referred to earlier in these reasons. The Court indicated that the Applicant mother, and ICL could have leave to proceed on an undefended basis in respect of the orders sought in the Amended Initiating Application filed by the Applicant mother on 14 May 2019. The Court did not ultimately grant leave for the matter to proceed undefended, however, as the orders sought by the Applicant mother on 9 October 2019 differed from those earlier orders sought.  The Applicant mother sought orders as set out in her Further Amended Initiating Application, of which the Respondent father had only recently become aware. Additionally, the Further Amended Initiating Application filed by the Applicant mother did not replicate the orders sought the preceding day by the ICL, thus adding to the procedural unfairness that would have been experienced by the Respondent father if the Court had allowed the matter to proceed on an undefended basis at that time.

12. The Applicant mother also indicated to the Court that the Applicant mother would not proceed with the balance of orders sought in the Application in a Case, given the subsequent filing by her of the further Amended Initiating Application, obviating the need for the orders sought in the Application in a Case.

13. The Applicant mother, however, sought leave to make an oral application for the orders which the Court made on 9 October 2019.  That application was supported by the Independent Children’s Lawyer and the orders sought were consented to by the Independent Children’s Lawyer.  Each of the Applicant mother and the Independent Children’s Lawyer sought such parenting orders on the basis of the Respondent father’s alcohol dependency presenting a risk to the children.  It is clear that the Court can consider an oral application in such circumstances and the Court readily granted leave for that oral application to be made and for submissions to be made in respect of that application. 

14. In respect of those submissions, the Applicant mother relied upon her affidavits of evidence-in-chief affirmed 14 May 2019 and the 23 August 2019 together with the affidavit of expert witness Mr A affirmed 21 May 2019 annexing his family report dated 9 January 2019.

15. In his report, Mr A referred to the affidavit evidence of the mother sworn 31 August 2018, wherein the Applicant mother alleged “in about 2015, in addition to drinking heavily, Mr Beckert began regularly using cannabis” and “from September 2015, I believe Mr Beckert began to use cocaine on a frequent basis.” 

16. The Applicant mother further stated that “in about 2017, Mr Beckert went to rehab for alcoholism.”

17. Mr A noted, in paragraph 2.5 of his report:

    “On 18 June 2018, Mr Beckert recorded his second drink driving offence.  In a letter from Dr Q, dated 31 July 2018, the doctor states his diagnosis of Mr Beckert is, “alcohol dependence in early remission, and other substance dependence in sustained remission,” and that he (Mr Beckert) needs to develop adaptive and healthy strategies for managing anxiety and stress.”

18. Mr Lailder also noted, in paragraphs 4.7 and 5.5 of his report, respectively, (in respect of the respondent father’s insight into his difficulties) that:

    “…he sees abstinence and/or supervisory conditions on his seeing his sons as ‘offensive’, a word he used on just about every occasion we spoke.  I find this quite dissonant; if Mr Beckert does have insight into the nature of this dependence and, perhaps more importantly, into general understandings of relapse prevention”.

    “I would expect him to see these conditions as less targeted at him and more as protective of Y, X and Z’s safety and wellbeing, and his prudent reassurance to others concerned with their care”.

19. Mr A’s relevant conclusions and recommendations were: 

    From the history of their care, and from my interviews and observations, I would conclude that Y, X and Z formed their primary attachments to their mother, Ms Beckert.

    They also have robust, age appropriate and developmentally important father-son bonds with Mr Beckertt.

    The difficulty in doing that here is the face of the record evidence that Mr Beckert suffers from a moderate to severe Alcohol Dependence Disorder that brings into question his capacity to provide constant, safe parenting for Y, X and Z at both practical and emotional levels.

    In July 2018, Dr Q considered that the Alcohol Dependence Disorders was “in early remission”. I have insufficient information to determine whether that remains the same.

    At interview, I thought Mr Beckert showed little insight into either the breadth or depth of the likely impact of the disorder on his own health, behaviour or his relationships, especially those he will have with Y, X and Z as they grow and mature.

    The Orders and Orders by Consent of 3 September 2018 provide for a substantial and significant amount of time for Y, X and Z to spend time with their father and a prudent testing regime to ensure Mr Beckert’s parenting capacity is not diminished by the abuse of alcohol while the boys are actually with him: in my view, these arrangements should remain in the immediate term.

    In the longer term, the only sustainable solution is for Mr Beckert to address his alcohol dependence effectively. He needs to engage consistently with a single treating professional over a minimum period of a year to do this. That professional, informed of the consequences for the boys’ care, will be able after that time to certify whether his Alcohol Dependence Disorder is in “in sustained remission”

    Professionally, I cannot recommend a regime for the boys to spend time with their father without testing or supervision until that time.

20. There is not before the Court any affidavit of evidence in chief or affidavit filed in compliance with the orders of Judge Kelly by the Respondent father. Whilst obviously the allegations made by the Applicant mother in her affidavits are yet to be tested, such material is the only relevant and recent material before the Court as between the Applicant mother and Respondent father. Coupled with the risk presented by the Respondent father’s alcohol dependence is the existence of family violence orders. The Applicant mother alleges, in paragraph 319 of her affidavit of 14 May 2019, the Respondent father has been charged “with about nine breaches of IVO offences in respect of breaching the IVO in place for my protection”. The original IVO that was made for the protection of the Applicant mother and the children on 9 August 2017 remains in place.  It was due to expire on 8 August 2018, but on 27 July 2018 the Applicant mother applied to extend the IVO indefinitely, and that is the current position.

21. From paragraph 248 onward of the Applicant mother’s affidavit affirmed 15 May 2019, the Applicant mother sets out her allegations as to the numerous instances since the making of orders of 3 September 2018, in which the Respondent father has not complied with the requirement to self-administer breath analysis.  Further, as set out in paragraph 255 of that affidavit, the Applicant mother alleges that the videos sent to her by the Respondent father are unclear.  She says: 

    “…by way of example, often I cannot clearly make out the date on which Mr Beckert has made the recording, and he often does not clearly hold up the results to the camera.  One example of this is the video he sent on 20 April 2019.  I am able to produce such videos to the court, if required”.

22. The Respondent father took no issue with the Applicant mother’s assertion that on a recent weekend, the mother had travelled some distance from Blairgowrie to Melbourne to deliver the children to the father only to discover that he had a blood alcohol reading of 0.03% in circumstances where he was to have a 0.00% per cent reading.  She was unable to leave the children with him in those circumstances.

23. In the five months since the orders of 31 May 2019 made by Judge Kelly, the Respondent father has not rectified his non-compliance with the orders of the Court.  The ongoing delay occasioned by his actions and costs incurred by the Applicant mother have been adverse to the Applicant mother.

24. The Respondent father has provided no real explanation for the delay that he has caused in these proceedings and his need for adjournments.  His attendance at court smelling of alcohol on the morning of 8 October, and his refusal that day to undertake a breath test analysis at a nearby police station to establish that he was not alcohol affected led the court to infer, together with his presentation and demeanour, that his consumption of alcohol had impacted his ability to participate in the proceedings on 8 October 2019 to the extent that he was incompetent.

25. The Court determined on 9 October that the husband could have a short time in which to file his documents and comply with earlier Court orders with the matter listed for trial in a period of approximately one month thereafter, given it is now an urgent matter. Although the Respondent father agreed to file his material in a timely way, the difficulty then became that he is a litigant in person and there is an intervention order in existence. Consequently, section 102NA of the Family Law Act 1975 (Cth) became applicable. The Respondent father wishes to apply to the Commonwealth scheme. The proceedings are, as a consequence, again delayed.

26. The parties separated when the children were not yet one, and they have been in the mother’s primary care since that time and before.  The parenting dispute is one of sole or equal shared parental responsibility and the father’s time with the children in light of his alcohol dependency and the need for the existence of intervention orders.  The mother’s allegations in her affidavit material are of a harassing and abusive former partner, and one with whom she can reach no agreement or easy communication. 

27. The Respondent father has not complied with the ICL’s request for a hair follicle test for alcohol. There is no material filed by the Respondent father to refute the risk Mr A contemplated in his family report.  There is no evidence filed by the father that refutes the risk he poses to the children as set out in the allegations contained in the affidavit evidence of the Applicant mother and/or in the report of Mr A, the expert. 

28. This is a high-conflict case, and requires an assessment of the risk to the children of emotional abuse, neglect and/or physical harm in their father’s care if his alcoholism continues. His being adversely affected by alcohol on the 8^th and 9^th days of October, when he knew that he had a Court hearing in respect of the time he would spend with his children, was concerning. There is no evidence before the Court as to the Respondent father’s ongoing consumption of alcohol, treatment, prognosis and attitude toward alcohol, nor is there evidence as to any insight shown by him in his participation in effective therapy and/or other treatment to address his dependence issues and their consequences.  In submissions from the bar table, he indicated that he attends Alcoholics Anonymous each week, but he was clearly heavily affected by alcohol on 8 October and had a reading 0.097% on the 9^th October. He submitted that he sees a psychologist once a month, but there is no evidence in respect of that.

29. The Applicant mother does not oppose the Respondent father spending time with the children.  Rather, she wants the children to be kept safe in the Respondent father’s care.  The onus is on the Respondent father to take the initiative to progress his relationship with the children.  At the present time, on the evidence before the Court, limited daytime only contact between the children and their father can be ordered. It is ordered in the context of the Applicant mother proposing a regime of such contact supported by the Independent Children's Lawyer.  That proposal is put on the basis that the Applicant mother is of the view that the precautions put in place at the commencement of the time spent with will ensure the safety of the children, as will the presence of the Respondent father’s partner.  Were that not the case, the Respondent father’s lack of insight into his alcohol dependency and the other matters as raised in the affidavit material of the Applicant mother could have resulted in the need to move to a supervised regime of care for the children to ensure their safety.  The children’s best interests are in the interim served by the orders made by the Court.

1. The proceedings need to be adjourned for the time period in which they do as a result of the Respondent father’s non-compliance with earlier orders of the Court, and his determination to appear for himself whilst having engaged in behaviours which have necessitated the obtaining of an intervention order by the Applicant mother against him. He now seeks the assistance of the Commonwealth scheme to obtain legal representation to enable cross-examination of the Applicant mother.[3] He shall be afforded that opportunity.

   [3]Family Law Act 1975 (Cth) s 102NA.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 23 October 2019.

Associate: 

Date:  23 October 2019