Beckett and Beckett (No.2)
[2018] FCCA 667
•10 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BECKETT & BECKETT (No.2) | [2018] FCCA 667 |
| Catchwords: FAMILY LAW – Contravention Application – Where contravention without reasonable excuse established – Where order for costs made but suspended if compliance with existing orders and conditions of a bond. |
| Legislation: Family Law Act 1975, ss.65M, 65N, 65NA, 65P, 70NAD , 70NBA, 70NEB, 70NEC, 117. Federal Court and Federal Circuit Court Regulation 2012 Schedule 1 |
| Cases cited: Beckett & Beckett [2017] FCCA 608 Deakin & Howe [2016] FCCA 2605 |
| Applicant: | MR BECKETT |
| Respondent: | MS BECKETT |
| File Number: | WOC 315 of 2014 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 26 February 2018 |
| Date of Last Submission: | 26 February 2018 |
| Delivered at: | Wollongong |
| Delivered on: | 10 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gardiner |
| Solicitors for the Applicant: | Coleman Greig Lawyers |
| The Respondent appeared in person. |
| Counsel for the Independent Children’s Lawyer: | Mr Jackson |
| Solicitors for the Independent Children’s Lawyer: | Maguire & Mcinerney |
ORDERS
THE COURT FINDS THAT:
MS BECKETT has this day been found by the Federal Circuit Court of Australia at Wollongong to have contravened without reasonable excuse an order made by this Court on 28 March 2017.
THE COURT ORDERS THAT:
The Mother is hereby ordered to enter into a bond pursuant to the provisions of s70NEC of the Family Law Act 1975 and upon the conditions set out below:
(a)Strictly adhere to the obligations in respect of the parenting orders currently operative.
(b)For a period of two years be of good behaviour.
The Mother pay the costs of the Father in the sum of $17,099.90.
Order 3 above be stayed for two years on the condition that the Mother complies with all current parenting Orders.
In the event that the Mother complies with all current parenting the Orders for two years, order 3 above is discharged.
IT IS NOTED that publication of this judgment under the pseudonym Beckett & Beckett (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 315 of 2014
| MR BECKETT |
Applicant
And
| MS BECKETT |
Respondent
REASONS FOR JUDGMENT
This case is about two children, [X] born 2007, 10 years old, and her sister [Y] born 2009, eight years old. These reasons for Judgment explain why the Court has found that the children’s Mother has contravened orders that were made on 28 March 2017 without reasonable excuse.
Background
On 28 March 2017 this Court made final orders relating to the children, and published its reasons for judgment as [2017] FCCA 608. The matter was heard over four days in August 2016, the last submission was made on 6 February 2017 and the orders were made on 28 March 2017. No appeal was filed in relation to the orders this Court made.
The orders in question are reproduced in the first schedule to these reasons. In short, the Mother was given sole parental responsibility for the children, who were to live with her. The orders provide for the children to spend time with their Father, subject to a number of limitations that will be discussed below.
By way of a Contravention Application filed 20 June 2017, the Father alleges that the Mother, without reasonable excuse, refused to allow him to spend time with the children on 31 March 2017, 14 April 2017, 5 May 2017 and 26 May 2017. There is no dispute between the parents that, for all practical purposes, the children have spent little, or very limited, time with their Father pursuant to the orders in question.
Mother’s response to contravention
At the hearing, the Mother made a number of concessions, all of which (the Court observes) were appropriate and sensible, having regard to the evidence before the Court. She accepted that she had been served with the Contravention Application, and was aware of the orders in question. The Mother accepted that the order in question required her to do certain things by way of facilitating the children’s time with their Father. The Mother accepted that the things that she was required to do under the orders in question were not, in fact, done. The Mother conceded that she had contravened the orders in question, but submitted that she did so with a reasonable excuse.
The focus of the hearing turned, therefore, to two important issues. The first issue was whether the Mother had established that even though the orders had been contravened, she had a reasonable excuse for doing so. The second issue is, whether or not the Mother establishes reasonable excuse, is it nonetheless in the best interests of the children to vary the orders in question. As it turns out, the Court in fact did vary the orders in question, on an interim basis, after having heard the evidence. The interim orders made are reproduced in the second schedule to these reasons. The effect of the variations, and the reasons for making the orders, will be discussed in the final section of these reasons for Judgment.
The evidence
In support of his Contravention Application the Father relied on two affidavits, one sworn on 2 November 2017 and the second on 8 June 2017. At the hearing the Father was cross-examined by the Mother (who represented herself) and by Counsel for the Independent Children’s Lawyer, Mr Jackson.
The evidence in the Mother’s case consisted of her affidavit sworn 25 July 2017, and 6 November 2017. The Mother was cross-examined by Mr Jackson, as well as by Mr Gardiner, Counsel for the Father.
The applicable law
The applicable law in these cases was summarised by her Honour Judge Obradovic in Deakin & Howe [2016] FCCA 2605 at 26-30, and 42-44, which are reproduced below:
26.The relevant legislative provisions dealing with contraventions of parenting orders are found in Part VII Division 13A Family Law Act 1975 (Cth).
27.Division 13A is organised in a progression from lesser to greater seriousness, as explained in s70NAA. In summary it deals in turn with:
(a)Preliminary matters, including definitions and a provision relating to the standard of proof (s 70NAF): subdivision A;
(b)Varying parenting orders, which can be regarded as the least punitive response to the problem: subdivision B;
(c)Contravention alleged but not established - provision for costs orders against the person bringing the proceedings: subdivision C;
(d)Contravention established, but a reasonable excuse - the court can make orders for compensation for time lost, and costs orders: subdivision D;
(e)Less serious contraventions, and no reasonable excuse - the court has various powers, for example orders for compensation for time lost, orders for post-separation parenting programs, bonds, and costs: subdivision E;
(f)More serious contraventions, and no reasonable excuse - the court has more punitive powers, including fines and imprisonment: subdivision F
28.The meaning of “contravened an order” is set out in s70NAC of the Family Law Act 1975 (Cth):
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order--he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order;
…
(emphasis in original)
29.The Mother admitted the contraventions. Therefore, the onus of proof shifted to the Mother to establish that she had a reasonable excuse for the contraventions.[1]
[1] ss 70NDA(c); 70NEA(1)(c); 70NFA(1)(c).
30.The meaning of “reasonable excuse” is, relevantly, found in s70NAE of the Act, which reads:
(1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
...
(5) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
In Taikato v R[2] the High Court in a different context, considered the meaning of ‘reasonable excuse’. Their Honours said:
[2] (1996) 186 CLR 454 at p464-466 per Brennan CJ, Toohey, McHugh & Gummow JJ
… what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defences of ‘reasonable excuse’ is an exception…
… Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence.
A reasonable excuse in respect of a concern as to the welfare of the child, is limited to a belief, on reasonable grounds, that depriving a person of time with a child pursuant to an order was necessary to protect the health and safety of a person. It is not a question as to whether in the view of the parent with whom a child lives, or in the view of that parent on reasonable grounds, that the carrying out of the order might not be in the best interests of the child. The question is whether it is necessary to protect the health or safety of a person including the child.[3]
Section 70NAE was considered by Warnick J in Childers & Leslie[4] where his Honour said:
… s 70NAE(1) is to the effect that the circumstances described in the following subsections are not the only circumstances in which reasonable excuse may be found. While it is clear that a set of circumstances quite different in character to those set out in any of the subsections could constitute reasonable excuse, a much more difficult question is whether, if the circumstances seem to fit within the character of those set out in a subsection, that subsection describes the limits within which reasonable excuse may be found. For example, could a respondent who genuinely believed that contravention was necessary to protect a child’s health, but who had no reasonable grounds for that belief, nonetheless be found to have had a reasonable excuse for contravention or, might a person who contravened an order to protect a child’s health be found to have had a reasonable excuse for contravention, notwithstanding that the retention was for longer than was necessary to protect the child’s health.
The first example might be addressed by regarding the term “reasonable excuse” in s 70NAE(1) as being an objective test, albeit one that might include “subjective” aspects. Thus, the term “reasonable excuse” in subsection (1) would match the term “on reasonable grounds” in subsection (5). If this approach was taken, the same result would be achieved whether subsection (5) was expressly relied upon or not. While this conclusion does not mean that subsection (5) must be applied whenever it can “fit” the circumstances, it certainly does not support an opposite conclusion.
While subsection (5) describes circumstances in which a reasonable excuse will exist, within its term are qualifications such as “reasonable grounds”, “...necessary to protect the health...” and “...not longer than was necessary”, which if not met will exclude some “excuses”. I incline to the view that where the legislature has specifically installed qualifications on an excuse in a particular set of circumstances, it would not be open to make a finding of excuse where that limit had been exceeded, unless there were some additional circumstances that took the case out of the situation dealt with by the subsection. So, as to the second example given in the preceding paragraph, without such an additional circumstance, it would not be open to find reasonable excuse in respect of a contravention for a period that exceeded that which was necessary to protect a child’s health.
…
… The question is not simply whether, viewed from some ill-defined concept of fairness or reasonableness, the Mother’s actions were excusable. The position with regard to the terms “reasonable grounds” and “reasonable excuse” in s 70NAE is, I think, similar to that of terms of like generality, for example, “any just cause” used elsewhere in the Act. As Lindemayer J said of the term “any just cause” in In the Marriage of Lutzke (1979) 5 FamLR 553 at 559:
... However, the Act is silent as to what may constitute “just cause” for the discharge of an order. In my opinion, however, the words “just cause” are not used in any broad general sense, nor are they intended to import any abstract notions of justice, “Palm tree” or otherwise, into the determination of applications for discharge. In my opinion those words must be interpreted in the context of the Act as a whole and in particular with regard to the other specific provisions of the Act which relate to maintenance. Thus a “cause” for the discharge of an existing maintenance order will be a “just cause” only if, having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said that it is “right” or “proper” that the order should be discharged.
Here, the context in which “reasonable excuse” applied tellingly included the subsections of s 70NAE. It also included that the Father was entitled to spend time with the child pursuant to a court order. Such an order places serious obligations on persons in the position of the Mother in this case.
[3] In the marriage of O’Brien (1993) FLC 92-396
[4] (2008) FLC 93-356
The first alleged contravention
The Father alleges that the Mother contravened order 4(a) made 28 March 2017. That order expresses that the children’s time with the Father be conditional on compliance with orders 5 and 6. Accordingly order 4(a), and orders 5 and 6 will be reproduced below:
(4)Conditional upon the terms set out in Orders 5 and 6 below, the children spend time with the Father as follows:
(a)During school terms 1 and 4, each alternate Friday afternoon commencing at 4:00pm until the following Sunday afternoon at 5:00pm;
(5) The Father’s time during school term weekends with the children as set out in Orders 4(a)-(b) is conditional upon:
b)The Father living for two years from the date of the Orders in the residence of his parents, (being both or if relevant either one), Mr B and Mr S, if his parents both (or if relevant either one) live in the Australian Capital Territory (ACT), and that the Father does all things necessary to ensure that at least one of his parents remain in the ACT during the course of that spend time period with the children.
i)In the event that both of the Father’s parents are not available to remain in the ACT during his spend time period, then where relevant any overnight spend time period shall take place at either the Father’s brother’s Mr M or Mr N‘s residence, if his brothers both (or if relevant either one) live in the Australian Capital Territory (ACT), and that the Father does all things necessary to ensure that at least one brother remain in the ACT during the course of that spend time period.
c)That the Father without admission is to not consume alcohol during the period of spend time and 12 hours before the commencement of the spend time period.
d)That for a further three years from the date of these Orders, the Father shall continue regular and appropriate treatment and/or counselling for his mental health, unless there is a written advice from a treating psychiatrist that such treatment and/or counselling is no longer required with such a condition does not prohibit the Father from continuing such treatment and/or counselling beyond the three year period.
e)That within seven days from the date of these Orders the Father is to provide his treating doctors (including psychiatrists) and psychologists with an authority to ensure that the Mother has access to any records of attendances and medication as prescribed.
f)That the Father is not to take the children on any animal hunting events.
(6) That the Father’s time during school holidays with the children as set out in Order 4(c) is conditional upon:
a)If the time takes place in the ACT, the same conditions as such out in Order 5(a) above.
b)If the time takes place outside the ACT, for the first two years from the date of the Orders any one or more or the Father’s parents or brothers shall accompany the Father and the children on any such interstate (or ‘interterriory’) trips including holidays.
c)That the Father without admission is to not consume alcohol during the period of spend time and 12 hours before the commencement of the spend time period.
d)That the Father is not to take the children on any animal hunting events.
The Mother’s evidence in relation to this first contravention commences at paragraph 10 of her affidavit of 25 July 2017. She points out that the final orders were made on Tuesday, 28 March but she then states:
“I was already rostered to work a night shift from 6pm to 6am on Friday, 31 March 2017.”
The Mother’s contention was clearly wrong. She all but accepted this during her cross-examination, and in closing submissions. She was not already rostered to work a night shift on the day in question.
It is unhelpful in this case to make a conclusion about whether or not the Mother was lying when she contended that she was working. Perhaps her recollection was faulty. Perhaps she genuinely believed that she was working, when forced to account for events that took place four months before she swore her affidavit. She gave the impression of being surprised when confronted with her own leave records indicating that she was not working.
Perhaps what is even more disturbing is all the evidence before the Court about the communications by and on behalf of the parents seeking to, somehow, resurrect the prospect of the children spending time with their Father in accordance with the orders. All the relevant communications were before the Court. The strong impression formed from reviewing this evidence is that no matter what was suggested on behalf of the Father as sensible compromises to attempt to address the Mother’s concern her view was rigid: if there was to be contact, it would be on her terms, and not the Father’s.
The Mother’s contravention on 28 March 2017 is established, and there is no evidence to suggest that it was based on any reasonable excuse as defined in the Act. The first alleged contravention is established, without reasonable excuse.
The second alleged contravention
The Father alleges that the Mother contravened, without reasonable excuse, order 4(c)(ii), made 28 March 2017. That order relates to the school holidays and it provides for the Father to spend time with the children:
“For the second half of each mid-year school holidays in years ending in an odd numbered year to commence at 4 pm on Friday and conclude on the following Friday at 4 pm.”
The Mother’s evidence about the alleged second contravention commences at paragraph 19 of her affidavit sworn 25 July 2017. The basis of the Mother’s reasonable excuse, she contends, is that the Father attended the changeover location on his own, ie, without the supervision that, she contended, was required in accordance with order 6 (reproduced earlier in these reasons).
The Mother contended that order 6(b) mentioned that the Father had to be accompanied at any changeover because that constituted “time spent outside the ACT”. She insisted that he, in effect, be supervised at all times with the children. That is why she did not make the children available.
The Father contended that the Mother’s interpretation of the order was neither reasonable nor rational. The Mother submitted that her interpretation of the order, and thus her action in not facilitating the children’s time with their Father, was a reasonable one having regard to the broader concerns she had about the Father’s mental health. The Independent Children’s Lawyer submitted that the Mother’s actions were, in all the circumstances, reasonable.
The Mother’s assertion of reasonable excuse must be based on her belief (which she contends was held on reasonable grounds) that not allowing the children to spend time with their Father was necessary to protect their health or safety.
The Court does not accept this. When the totality of the Mother’s evidence is reviewed, with the benefit of reflection, what becomes apparent is that the Mother was determined not to comply with the order. In cross-examination, for example, she quite frankly conceded that she did not agree with the orders that the Court made, that she felt that the Court had got it wrong, and that her view was at the hearing, and continues to be, that the Father should be responsible for all travel associated with the children spending time with him.
The arrogance of the Mother’s approach and attitude towards the final orders made permeated her evidence and, regrettably for her, cast a giant shadow of doubt over her contention of the reasonableness of her interpretation with the order in question. In the circumstances, the Mother should not receive the benefit of the doubt as to her interpretation of the meaning of Order 6. There is no other evidence before the Court which would suggest that her admitted contravention was based on a reasonable excuse.
The Court finds that the Mother did in fact contravene Order 4(c)(ii) of orders made 28 March 2017 without reasonable excuse.
The third alleged contravention
The Father contends that on 5 May 2017 the Mother without reasonable excuse refused to allow the Father to spend time with the children, contrary to the terms of order 4(b)(i).
Order 4(b)(i) states:
each third Friday afternoon commencing at 4:00pm until the following Sunday afternoon at 5:00pm, (being the second and fifth and eighth weekend of such school terms)
The Mother’s evidence in relation to this alleged contravention commences from paragraph 32 of her affidavit of 25 July 2017. The Mother contends that the children did not want to spend time with their Father and was resisting contact with him. At paragraph 34 of her affidavit, for example, she explains that on arrival to the changeover venue “both children refused to get out of the car and locked the doors.”
When the Father, who was accompanied by the Paternal Grandmother, approached the car seeking to engage with the children, there was an incident between the Mother and the Paternal Grandmother.
The Mother concedes that the children did not go with their Father.
What is significantly absent from the Mother’s affidavit is any evidence of the attempts that she made to encourage the children to spend time with their Father on this occasion. She agreed in cross-examination that both the Father and Paternal Grandmother tried to encourage the children to go, but failed. It was put to her that she did nothing to encourage the children. Her response was to the effect: “I said nothing”. She went on to say in the clearest terms that: “...I will not force them … I did not discourage them to go … the children had been put through enough…”
The Mother also referred to the report dated 3 July 2017 from Ms S, Clinical Psychologist, in relation to the children which made a number of recommendations about the children’s time with their Father. The Court places no weight on these reports. The Court does not know, for example, what information was given to the psychologist. The reports record what the children allegedly said to her, during the course of a session, or sessions. No context is given. The Court does not know, for example, whether Ms S had access to the Court’s lengthy judgment published 28 March 2017, or any of the psychiatric assessments that were in evidence before the Court. In the present context, where the Mother seeks to establish the reasonable excuse, the Court can place no weight on the reports in question.
Significantly, the Mother admitted that she did nothing to encourage the children to go into their Father’s care.
Section 70NAD specifies that in the context of contravention proceedings, an obligation created by an order in relation to a child, whether specified in the order or not, includes a number of other statutory obligations that are set out in ss.65M, 65N, 65NA, and 65P of the Act. A common theme of these provisions is that when obligations are created by Orders, those bound by the order are prevented from doing anything that might interfere with the exercise or performance of the powers, duties, rights, responsibilities and benefits conferred on other persons by the order. These quite expansive provisions mean, in effect, that Orders need to be complied with not just in a technical sense, or having regard to form, but rather by reference to the intention and purpose of the Orders, and what was sought to be achieved in a substantive sense.
It is clear that the totality of the statutory scheme established under the Act requires a parent to be proactive, and not passive, when it comes to compliance with the orders.
The Court is not satisfied that the Mother acted appropriately, or that reasonable excuse has been established. The third alleged contravention is established without reasonable excuse.
The fourth alleged contravention
The Father alleges that on 26 May 2017 the Mother, without reasonable excuse, again failed to comply with order 4(b)(i) (which has been reproduced above).
The Mother’s evidence in this regard commences from paragraph 40 of her affidavit filed 26 July 2017. In short, she contends that the children resisted going into the Father’s care. Paragraphs 40-47 of the Mother’s affidavit are deeply disconcerting, from the Court’s perspective. It is abundantly clear, even from the Mother’s own evidence, that she involved the children in the issues before the Court, and gave them far too much autonomy to decide about matters of compliance. Moreover, she created a situation in which the children would become aligned with her. At paragraph 46, for example, the Mother reports [X] saying to her Father: “I just want you to know it’s not Mum’s fault. It’s my decision and I want you to stop blaming Mum for everything.” [X] was nine years old when she said this.
Paragraph 44 bears reproduction:
At this point [X] was standing next to my car physically shaking. I put my arms around her and cuddled her and reassured her everything was ok.
Mr Beckett turned to me and said, “Are you going to say anything encouraging or just stand there?”
I said, “Clearly she doesn’t want to go. What do you want me to do. Physically force her?”
[X] said, “Dad, it’s not mums fault. It is my decision. Stop blaming mum”
Mr Beckett turned to [Y] and said, “What about you? Do you want to come to Canberra?”
[Y] put her head down and mumbled “No”
Mr Beckett said, “Well can I have a cuddle at least?”
The Mother’s own evidence confirms that she did nothing to encourage or facilitate [X] spending time with her Father. Even on the Mother’s own evidence, the impression is created that [Y]’s resistance to going into her Father’s care was less than [X]’s. There might have been the opportunity to encourage [Y], but the Mother was quite steadfast in declining to do so. The other significant factor is that the Father walked away, thus de-escalating the situation.
The Mother was not entitled to remain passive, and then to assert a reasonable excuse. No such reasonable excuse is established on the evidence, even the Mother’s own evidence. The fourth alleged contravention is found without reasonable excuse.
Imposition of penalty
The Court’s findings, and the Mother’s concession, activates subdivision E of Division 13A of Part 7 of the Act. The contravention has been established without reasonable excuse, but clearly this case falls within the category of a less serious contravention. The power of the Court is as set out in section 70NEB(1):
(1) If this Subdivision applies, the court may do any or all of the following:
(a) make an order directing:
(i) the person who committed the current contravention; or
(ii) that person and another specified person;
to attend a post-separation parenting program;
(b) if the current contravention is a contravention of a parenting order in relation to a child--make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;
(c) adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;
(d) make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;
(da) if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d)--impose a fine not exceeding 10 penalty units on the person;
(e) if:
(i) the current contravention is a contravention of a parenting order in relation to a child; and
(ii) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii) the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;
make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);
(f) make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and
(g) if the court makes no other orders in relation to the current contravention--order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.
Note 1: The court may also vary the primary order under Subdivision B.
Note 2: paragraph (1)(a)--before making an order under this paragraph the court must consider seeking the advice of a family consultant about the services appropriate to the person's needs (see section 11E).
The Father seeks, and the Court will impose, an order under section 70NEB(1)(d), namely that the Mother enter into a bond in accordance with section 70NEC. The bond will be for two years. The Mother’s attitude towards the orders warrants the imposition of a longer term. The bond will be without surety and without security. The conditions of the bond will be that the Mother be of good behaviour and comply with all orders of the Court in relation to the children.
The Mother must understand that the purpose of the bond is to ensure her compliance with the Court orders, and that if she does not comply with the conditions of the bond, she will be brought to account not just for any contravention, but any future contravention, including a breach of bond conditions. The Mother must understand that the cumulative consequences of a failure to comply with Court orders becomes much more serious.
The Father has also sought an order for costs pursuant to section 70NEB(1)(f). Exhibit A5 sought to quantify the costs. If costs were awarded on an indemnity basis, the Father claims costs in the sum of $54,208.15. If costs were calculated in accordance with schedule 1 of the Federal Circuit Court Rules, the Father submits that his costs would be assessed at $17,099.90.
There is no basis for making an indemnity costs order. It was only lightly suggested that the Court might even consider this.
The Court accepts that the amount claimed under the Federal Circuit Court Rules is a reasonable application of the schedule, and that the disbursements including the hearing fee, process service fees, and Counsel’s fees, are appropriate. The Court is not, of course, bound by the assessment, and has a considerable discretion as to how, exactly, costs should be assessed, if costs are in fact ordered.
The Mother opposed any costs order. Her argument was that if the Father incurred costs, it was unnecessary because it was he who requested her to correspond directly with his solicitors. The inference is that the costs would not have been incurred, if the parents had been able to communicate directly. The Court makes two important observations about this submission. Firstly, it is palpably obvious that the Mother and the Father in this case cannot communicate because of their toxic relationship which is permeated with distrust and which is bogged down in the mires of their past.
It is fallacious to suggest that these parents could have resolved the issues before the Court without the intervention of legal process. In any event, the costs sought by the Father, if granted, relate to the contravention proceedings only and are calculated using the schedule to the Federal Circuit Court Rules which facilitates a lump sum assessment based on Court events.
The real focus must be on section 117 of the Act which informs the exercise of discretion under section 70NEB(1)(f). In this regard, the Court has had regard to the financial circumstances of the parties. The Mother probably cannot afford to suffer a costs order. It is well-established, however, that inability, or lack of capacity, to meet a costs order is but one of many considerations that a Court must take into account.
The Court must take into account the conduct of the parties to the proceedings. The Court has found that the Mother’s attitude towards the orders, and thus towards compliance with the orders, was the main underlying cause of non-compliance. The contravention proceedings were necessitated as a result of that. Moreover, the Court finds that the contravention proceedings were necessitated by her failure to comply with previous orders of the Court, in each case without reasonable excuse. In addition, the Mother was wholly unsuccessful in the proceedings.
The Court finds that an order for costs should be made pursuant to section 117 and section 70NEB(1)(f).
However, the Court believes that there is a great risk that any order for costs will have two potential impacts. Firstly, indirectly impacting on the children who will suffer the financial burden imposed on their Mother who will, no doubt, attribute this additional burden to the children’s Father. Secondly, and perhaps more significantly, an order for costs will harden the Mother’s resolve not to facilitate the children’s ongoing relationship with their Father. In these circumstances, the Court believes that the proper role of the costs sought is, in fact, to secure compliance with the order.
Thus, compliance with the order would actually be facilitated by ordering costs in the sum of $17,099.90, staying the order pending compliance with the same for two years, and then suspending the order at the conclusion of that time. The Court is confident that having regard to the age of the children, if they can spend time with their Father in accordance with the Court’s orders for two years, then it is more likely than not that that will continue into the future. The Court’s power to do so is implied by, and a necessary corollary of section 70NEB. In any event, the Court is satisfied that it has the power to do so under section 117(2), which empowers the Court to “…make such order as to costs … as the Court considers just.”
The incentive on the Mother to comply with orders is thus enhanced significantly.
Variation of the parenting orders
Section 70NBA of the Act provides:
Variation of parenting order
(1) A court having jurisdiction under this Act may make an order varying a primary order if:
(a) proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and
(b) it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i) the court does not find that the person committed a contravention of the primary order; or
(ii) the court finds that the person committed a contravention of the primary order.
(2) If Subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the court, in addition to regarding, under section 60CA, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account:
(a) the person who contravened the primary order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post-separation parenting program or a part of such a program;
(b) there was no post-separation parenting program that the person who contravened the primary order could attend;
(c) because of the behaviour of the person who contravened the primary order, it was not appropriate, in the court's opinion, for the person to attend a post-separation parenting program, or a part of such a program;
(d) the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the person had contravened a previous order under this Act affecting children.
(3) This section does not limit the circumstances in which a court having jurisdiction under this Act may vary a primary order.
The Court notes that section 70NBA(2) does not apply as the contravention without reasonable excuse was of a less serious nature.
The Court made interim parenting orders in accordance with the minute that was proposed by the Independent Children’s Lawyer. The Mother did not oppose the orders. The Father strenuously opposed them on the basis that the Court had already made findings about changeover arrangements, and there was no need to revisit those findings in circumstances where the Mother’s contravention without reasonable excuse had been established.
The effect of the interim orders is quite significant. It means that the Father can collect the children from school on a Friday, and return the children to their Mother’s home at 6pm on a Sunday. Thus, during school terms, one changeover involving the parents potentially coming into contact with each other is avoided. Moreover, the children will be coming from school where, presumably, they will not have been under their Mother’s influence for that day. The Court believes this will greatly enhance the prospects of the children going into the Father’s care. Of course, the order also places the burden, during school terms, on the Father to collect and return the children. The Court acknowledges that this is not what it had originally contemplated, and ordered, in its reasons for judgment dated 28 March 2017.
Order 1(b) deals with Christmas. Order 1(c) clarifies the supervision arrangements when the children spend overnight times with their Father.
Order 2 requires the parents to participate and complete in a Parenting after Separation course within six months of the orders. It is for this reason that it was unnecessary to order the Mother to attend a Parenting after Separation course under section 70NEB.
The Independent Children’s Lawyer’s submissions on the issue were well considered. The substance of these submissions asked the Court to focus on pragmatic reality, rather than principle. The pragmatic reality of this case is that the Mother’s non-compliance hitherto was driven by her roster as (occupation omitted) which, she contends, made compliance with the orders problematic for her. The Court accepts that the Mother’s roster was, in fact, an obstacle to compliance, but the Court does not accept that it was either the only reason or the main reason.
The Mother’s attitude towards the orders and compliance thereof was the more pervasive factor underlying non-compliance. Nonetheless, the Independent Children’s Lawyer quite properly submitted that on the evidence the relationship between the parents has probably deteriorated from the already low state which was found at the time of the hearing and subsequent judgment. The Independent Children’s Lawyer was entirely correct in describing their communication as being appalling, and as their attitude towards one another being one of blame.
Indeed, the Court observes, that the Mother’s cross-examination of the Father was an insightful depiction of their relationship with each other. It was, from the Court’s perspective, a competition between the parents as to who was the more self-focussed and rigid. They both took every opportunity to blame each other for all the problems confronting this family’s past, present and even future.
Counsel for the Independent Children’s Lawyer referred the Court to paragraph 101 of its reasons for judgment, which bears reproduction
At one level, there are issues of practical difficulty and expense in the children spending time and communicating with their father. He lives in the Australian Capital Territory, the Mother and the children presently live in the Town A. The Independent Children’s Lawyer proposes changeover at Town B. So does the Father. Only the Mother proposes that the Father have the sole responsibility for the collection and return of the children from her home. The Court believes that the latter is an unreasonable burden on the Father, in all the circumstances of the case. The parents have managed so far with a Town B changeover, and there is no objective reason to change this arrangement. Matters of inconvenience are only marginally relevant.
Counsel respectfully submitted that the Court would find that the last sentence was proven by subsequent events to be both incorrect, and an inadequate assessment of the complexities of this case.
The Court agrees. With the benefit of hindsight, the general principle that parents should both participate in changeover arrangements should not have applied to a case such as this one. Whether it was the Mother’s roster, or much more complex such as a deeply held resistance to the orders, matters of principle need to be subsumed to more pragmatic considerations of ensuring that these children have a relationship with their Father.
The impact of the interim order is to impose on the Father the burden of doing most of the travel, but it means there is a much greater chance of compliance with the orders, and of the children having a relationship with him. Counsel for the Independent Children’s Lawyer submitted that if the driving was onerous, the Father could always delegate responsibility for some part of it. Indeed, as the Father’s Counsel pointed out, at the substantive hearing there was evidence to suggest that the Father was fatigued as a result of travel. If that was the case, it is probably a factor that the Court took into account, but even that needs to yield to the pragmatic reality, in the Court’s mind, that the greatest chance these children have of spending time with their Father on a regular basis, and in accordance with orders made in this Court, is if the Mother’s compliance can be facilitated.
The Court must record that it found the Father’s resistance to the making of the interim orders somewhat surprising. It is the best chance of the children having an ongoing relationship with their Father, the Court believes. His insistence that the order ought not to be changed, and that the Mother be compelled to comply with an order that she has not complied with hitherto, merely reflects his perception that this case is a power struggle between the parents in which he would ultimately like to win.
This Court is not interested in power struggles between parents. This Court will not adopt an unnecessarily rigid principled approach to the enforcement of its orders, when the evidence indicates that this is impractical. The focus will be on arrangements that facilitate the relationship between the children and their Father, whilst at the same time making the Mother accountable.
The Independent Children’s Lawyer sought costs. The Court declines to make such an order in the circumstances of this case.
I certify that the preceding sixty nine (69) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 10 May 2018
Schedule 1
ORDERS
Parenting
All previous orders in these proceedings are hereby discharged
That the Mother have sole parental responsibility for the children, [X] (born 2007) and [Y] (born 2009).
That the children live with the Mother.
Conditional upon the terms set out in Orders 5 and 6 below, the children spend time with the Father as follows:
(a)During school terms 1 and 4, each alternate Friday afternoon commencing at 4:00pm until the following Sunday afternoon at 5:00pm;
(b)During school terms 2 and 3 for the purpose of participating in weekend sport:
(i)each third Friday afternoon commencing at 4:00pm until the following Sunday afternoon at 5:00pm, (being the second and fifth and eighth weekend of such school terms);
A.to be suspended on any weekend coinciding with Mother’s Day.
B.to be suspended if such a weekend falls on [Y]’s birthday, from 9:00am until 5:00pm on that given day.
(ii)from Friday 4:00pm on the weekend coinciding with Father’s Day until Sunday 5:00pm if not consistent with weekend as set out in Order 4(b)(i).
(iii)for the birthday celebrations of: [Y] if it does not coincide with the period set out in Order 4(b)(i):
A.from 9:00am until 5:00pm if it falls on a weekend;
B.from after school until 7:30pm if it falls on a weekday.
(iv)The parties will aim as best as possible to ensure that the Father’s weekend time will coincide with the Queen’s Birthday weekend and Father’s Day, and will not coincide with Mother’s Day.
(c)During school holidays:
(i)For the first half of each mid-year school holidays in years ending in an even numbered year from the last Friday of the school term at 4:00pm until 4:00pm on the following Friday.
(ii)For the second half of each mid-year school holidays in years ending in an odd numbered year to commence at 4:00pm on Friday and conclude on the following Friday at 4:00pm.
(iii)For the first half of each end of year school holidays in years ending in an even numbered year to from the last Friday of the school term at 4:00pm until 4:00pm on 2 January.
(iv)For the second half of each end of year school holidays in years ending in an odd numbered year to commence at 4:00pm on 2 January and conclude on the Friday at 4:00pm before school is to commence.
(v)Time in Orders 4(c)(iii)-(iv) be suspended for the period from Christmas Eve at 12 noon until Boxing Day at 8:30pm.
(vi)From Christmas Eve at 12 noon until Christmas Day at 5:30pm in years ending in an even number.
(vii)From Christmas Day at 5:30pm until Boxing Day at 8:30pm in years ending in an odd number.
The Father’s time during school term weekends with the children as set out in Orders 4(a)-(b) is conditional upon:
(a)The Father living for two years from the date of the Orders in the residence of his parents, (being both or if relevant either one), Mr B and Mr S, if his parents both (or if relevant either one) live in the Australian Capital Territory (ACT), and that the Father does all things necessary to ensure that at least one of his parents remain in the ACT during the course of that spend time period with the children.
(i)In the event that both of the Father’s parents are not available to remain in the ACT during his spend time period, then where relevant any overnight spend time period shall take place at either the Father’s brother’s Mr M or Mr N‘s residence, if his brothers both (or if relevant either one) live in the Australian Capital Territory (ACT), and that the Father does all things necessary to ensure that at least one brother remain in the ACT during the course of that spend time period.
(b)That the Father without admission is to not consume alcohol during the period of spend time and 12 hours before the commencement of the spend time period.
(c)That for a further three years from the date of these Orders, the Father shall continue regular and appropriate treatment and/or counselling for his mental health, unless there is a written advice from a treating psychiatrist that such treatment and/or counselling is no longer required with such a condition does not prohibit the Father from continuing such treatment and/or counselling beyond the three year period.
(d)That within seven days from the date of these Orders the Father is to provide his treating doctors (including psychiatrists) and psychologists with an authority to ensure that the Mother has access to any records of attendances and medication as prescribed.
(e)That the Father is not to take the children on any animal hunting events.
That the Father’s time during school holidays with the children as set out in Order 4(c) is conditional upon:
(a)If the time takes place in the ACT, the same conditions as such out in Order 5(a) above.
(b)If the time takes place outside the ACT, for the first two years from the date of the Orders any one or more or the Father’s parents or brothers shall accompany the Father and the children on any such interstate (or ‘interterriory’) trips including holidays.
(c)That the Father without admission is to not consume alcohol during the period of spend time and 12 hours before the commencement of the spend time period.
(d)That the Father is not to take the children on any animal hunting events.
That for the purpose of changeover the Father and the Mother will facilitate changeover at Town B Service Station.
The parents are restrained from denigrating the other in the presence of the children.
Both parents are prohibited from publishing any information on social media that refers in any way to the other parent.
That the Mother shall ensure that the Father is kept informed by way of email as soon as it is reasonably practical of:
(a)Any serious medical problems or illnesses suffered by the children;
(b)Any specialist medical appointments;
(c)Any significant social, school or religious functions which the children are to attend to which the Father shall be entitled to attend;
(d)The details of any sporting body(ies) that the children are involved in;
(e)Any other important matter relevant to the welfare of the children.
The Mother shall provide authorities to the children’s school and medical providers to enable the Father to receive any relevant information otherwise provided to parents.
The parents shall keep the other informed of their respective residential addresses, contact telephone numbers and email addresses and is to inform the other of any change to same within 7 days of such change occurring.
The Father is entitled to attend all events involving the children including, but not limited to:
(a)Sporting fixtures;
(b)Extracurricular activities that allow for parent attendance or participation;
(c)School functions and events that allow for parental attendance or participation.
Property
Within 60 days, the Father shall do all acts and sign all documents necessary to transfer to the Mother his entire right title and interest in the parties' former matrimonial home known as and situated at Property A (being the whole of the land contained in Certificate of Title folio identifier (omitted)).
Simultaneously with the Father’s compliance with Order 14 above, the Mother shall do all acts and sign all documents necessary to refinance into her sole name the mortgage loan secured on the property in the parties' joint names with Bank A and thereafter the Mother shall indemnify the Father and forever keep him indemnified against any liability in respect of the home including but not limited to the payment of water and council rates, mortgage repayments and insurance payments.
Within 30 days, any funds held on trust or in a controlled monies account by Slater & Gordon Lawyers in respect of the TPD claim be released to the parties as follows:
(a)$77,380.48 to the Mother; and
(b)remainder to the Father.
The Mother shall be the sole owner of and solely responsible for:
(a)any funds contained in the Mother’s Bank B account (a/c XXXXX );
(b)the Vehicle 1 (registration number xxxxxx).
The Mother is declared to have sole right title and interest in any interest in her name in the (omitted) Superannuation fund.
The Father shall be the sole owner of and solely responsible for:
(a)any funds contained in the Father’s Bank A account (a/c XXXXX X);
(b)the Vehicle 2 (registration number XXXXX );
(c)the Vehicle 3 (registration number XXXXX X).
Any funds held on trust or in a controlled monies account by Slater & Gordon Lawyers in respect of the Father’s superannuation entitlements shall be forthwith released to the Father and retained by him for his sole benefit to the exclusion of the Mother.
The Mother and the Father shall have the sole right title and interest in:
(a)Any chattels goods furnishings and other property which are, at the date hereof, in their possession respectively.
(b)Any moneys, shares, debentures which stand in their sole name respectively at the date hereof.
In the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to s.106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
The Mother’s application for child support pursuant to s.123 of the Child Support (Assessment) Act 1989 be dismissed.
Leave be granted to the parties to approach Chambers to relist the matter on 14 days’ notice as regards the interpretation and implementation of these Orders.
Schedule 2
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1. Final Parenting Orders made on 28 March 2017 be varied as follows:
a. Order 7 be discharged, and that for the purpose of changeover the Father facilitate his time with the children by collecting the children from school at the conclusion of school on a Friday and returning the children to the Mother's home at 6.00pm on Sunday.
b. The Mother and the Father facilitate changeover in accordance with Order 4(c)(vi) and 4(c)(vii) at Town B Service Station.
c. Until 29 March 2019, the Father's time with the children be conditional upon either or both of the Paternal Grandparents Mr B and Mr S being present during all overnight time that the children spend with the Father and if the Paternal Grandparents are not available, then either of the Paternal Uncles, Mr M or Mr N must be present during all overnight time and will notify the Mother in writing of who will supervise that time.
2. Both the Mother and Father will enrol in and ensure their completion of a Parenting After Separation Course within six months of the Orders.
3. The matter be adjourned to a date to be advised for delivery of reserved Judgment regarding the Contravention Application
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