FEDERAL CIRCUIT COURT OF AUSTRALIA
Beckett & Beckett (No 3) [2021] FCCA 1759
File number(s): WOC 315 of 2014 Judgment of: JUDGE BECKHOUSE Date of judgment: 6 August 2021 Catchwords: FAMILY LAW – contravention – where father seeking 4 counts of contravention against mother – where 3 counts not established by father – where 1 contravention committed whilst on good behaviour bond – where contravention sanctioned under Sub-div F of Div 13A of the Family Law Act 1975 (Cth) – purpose of contravention proceedings is to ensure future compliance not to punish- order for compensatory time – costs order from previous contravention proceedings to determine whether it can be treated as a direct child support payment – where order for costs found not in the best interest of the children Legislation: Family Law Act 1975 (Cth), ss 70NAF, 70NEA, 70NEB, 70NEB(1)(d), 70NECA(3)(a), 70NFA, 70NFB(1)(a), 70NFB(2), 70NFB(2)(g), 70NFB(2)(h), 117(2A)
Federal Circuit Court Rules 2001 (Cth)
Cases cited: Beckett & Beckett [2017] FCCA 608
Beckett & Beckett(No.2) [2018] FCCA 667
Deakin & Howe [2016] FCCA 2605
Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655
Garrety v Steyn [2021] FamCA 67
Kalant & Jordain (No.3) [2021] FamCA 191
Oswin & Oswin [2019] FamCAFC 164
McClintock & Levier [2009] FamCAFC 62
Vaughton & Randle (No.3) [2013] FamCA 467
Number of paragraphs: 118 Date of hearing: 21 May 2021 Place: Wollongong Counsel for the Applicant: Mr Gardiner Solicitor for the Applicant: Coleman Greig Lawyer Solicitor for the Respondent: The Respondent in person ORDERS
WOC 315 of 2014 BETWEEN: MR BECKETT
Applicant
AND: MS BECKETT
Respondent
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
6 AUGUST 2021
ON A FINAL BASIS THE COURT ORDERS THAT:
1.The execution of Order 3 made on 10 May 2018 will be stayed for a period of 6 months from the date of these Orders.
2.By way of compensatory time pursuant to s 70NFB(2)(c) for December 2021 only, Order 4(c)(vii) of the Orders of 28 March 2017 are varied so that the children X born in 2007, and Y born in 2009, spend time with their Father from 5:30pm on Christmas Day until 8:30pm on 28 December 2021.
3.In the event that either party seeks to vary the current parenting orders, or a dispute arises about the interpretation, implementation, or enforcement of the current parenting orders, before making any further application to the Court, the parties will participate in a child inclusive or child focussed Family Dispute Resolution process.
4.All outstanding applications are dismissed and the proceedings are removed from the list of matters awaiting finalisation.
THE COURT NOTES THAT:
A.Order 1 has been stayed for six months to allow the Mother to approach the Department of Human Services (Child Support) and seek that the payment of $17,099.90 be treated as a direct child support payment from the Father to her, and credited towards any future child support assessments between the parties.
B.If the Department of Human Services (Child Support) are unwilling or unable to…
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CaseChat Overview and Summary
This matter concerned an application by Mr Beckett (the Applicant Father) against Ms Beckett (the Respondent Mother) in the Federal Circuit Court of Australia. The dispute revolved around alleged contraventions by the Mother of existing final parenting orders made on 28 March 2017, and subsequent orders made on 10 May 2018. The proceedings involved a contravention application by the Father concerning the Mother's failure to facilitate the children's time with him on Christmas Day 2019.
The court was required to determine whether the Mother had contravened the final and varied parenting orders by failing to deliver the children to the Father on 25 December 2019. If a contravention was established, the court needed to consider whether the Mother had a reasonable excuse for her actions and, if not, what consequences and penalties should flow from such a contravention, including whether she had breached a bond previously imposed.
In reaching its decision, the court applied the principles of the *Family Law Act 1975* (Cth), particularly Division 13A concerning contraventions of parenting orders. The court noted that the standard of proof for establishing a contravention is generally on the balance of probabilities, but certain orders require proof beyond reasonable doubt. The court found that the Mother had not established a reasonable excuse for her failure to comply with the orders on 25 December 2019. This conclusion was based on her late disclosure of work commitments, her lack of proactive steps to arrange alternative compliance, her failure to provide supporting evidence for her inability to swap shifts or secure alternative arrangements, and her passive approach to communication with the Father. The court also referenced previous findings in *Beckett & Beckett (No.2)*, highlighting the Mother's previous difficulties with compliance and the court's expectations regarding proactive adherence to orders.
On 6 August 2021, the court made several orders. The execution of a previous order was stayed for six months to allow the Mother to seek treatment of a payment as a direct child support payment. The court varied specific parenting orders to allow the children to spend time with their Father from Christmas Day until 28 December 2021, by way of compensatory time. The parties were ordered to participate in child-inclusive or child-focused Family Dispute Resolution before making further applications to the court regarding parenting orders. All outstanding applications were dismissed, and the proceedings were removed from the list of matters awaiting finalisation.
The court was required to determine whether the Mother had contravened the final and varied parenting orders by failing to deliver the children to the Father on 25 December 2019. If a contravention was established, the court needed to consider whether the Mother had a reasonable excuse for her actions and, if not, what consequences and penalties should flow from such a contravention, including whether she had breached a bond previously imposed.
In reaching its decision, the court applied the principles of the *Family Law Act 1975* (Cth), particularly Division 13A concerning contraventions of parenting orders. The court noted that the standard of proof for establishing a contravention is generally on the balance of probabilities, but certain orders require proof beyond reasonable doubt. The court found that the Mother had not established a reasonable excuse for her failure to comply with the orders on 25 December 2019. This conclusion was based on her late disclosure of work commitments, her lack of proactive steps to arrange alternative compliance, her failure to provide supporting evidence for her inability to swap shifts or secure alternative arrangements, and her passive approach to communication with the Father. The court also referenced previous findings in *Beckett & Beckett (No.2)*, highlighting the Mother's previous difficulties with compliance and the court's expectations regarding proactive adherence to orders.
On 6 August 2021, the court made several orders. The execution of a previous order was stayed for six months to allow the Mother to seek treatment of a payment as a direct child support payment. The court varied specific parenting orders to allow the children to spend time with their Father from Christmas Day until 28 December 2021, by way of compensatory time. The parties were ordered to participate in child-inclusive or child-focused Family Dispute Resolution before making further applications to the court regarding parenting orders. All outstanding applications were dismissed, and the proceedings were removed from the list of matters awaiting finalisation.
Orders
Orders of the court
WOC 315 of 2014
BETWEEN:
MR BECKETT
Applicant
AND:
MS BECKETT
Respondent
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
6 AUGUST 2021
ON A FINAL BASIS THE COURT ORDERS THAT:
1. The execution of Order 3 made on 10 May 2018 will be stayed for a period of 6 months from the date of these Orders.
2. By way of compensatory time pursuant to s 70NFB(2)(c) for December 2021 only, Order 4(c)(vii) of the Orders of 28 March 2017 are varied so that the children X born in 2007, and Y born in 2009, spend time with their Father from 5:30pm on Christmas Day until 8:30pm on 28 December 2021.
3. In the event that either party seeks to vary the current parenting orders, or a dispute arises about the interpretation, implementation, or enforcement of the current parenting orders, before making any further application to the Court, the parties will participate in a child inclusive or child focussed Family Dispute Resolution process.
4. All outstanding applications are dismissed and the proceedings are removed from the list of matters awaiting finalisation.
THE COURT NOTES THAT:
A. Order 1 has been stayed for six months to allow the Mother to approach the Department of Human Services (Child Support) and seek that the payment of $17,099.90 be treated as a direct child support payment from the Father to her, and credited towards any future child support assessments between the parties.
B. If the Department of Human Services (Child Support) are unwilling or unable to carry out Notation A, it is not intended that this will or should give rise to an application to vary these Orders.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Y is in year 6 at H School. The Family Consultant described her as “quiet and considered” in her responses.[2] Y said she liked both the academic and social aspects of school. She also said she loved her father but complained that he did not listen to her. She told the Family Consultant that she would prefer to see her father at her discretion.[2] Ibid.BACKGROUND In the first set of proceedings, the Court heard evidence over four days in August 2016. On 28 March 2017 the Court made the Final Orders and published its reasons for judgment as Beckett & Beckett [2017] FCCA 608. The Final Orders are reproduced in Schedule One. In short, the Mother was given sole parental responsibility for the children, who were to live with her. The Final Orders provide for the children to spend time with their Father. The Father filed a Contravention Application on 20 June 2017 (“the first contravention proceedings”). In it he alleged that the Mother, without reasonable excuse, refused to allow him to spend time with the children on a number of occasions after the Final Orders came into effect. On 10 May 2018 the Court found that the Mother had, without reasonable excuse, contravened the Final Orders. The Court published its reasons for judgment as Beckett & Beckett(No.2) [2018] FCCA 667 (“Beckett (No.2)”) and made the following orders (“the May 2018 Orders”):2. 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.3. The Mother pay the costs of the father in the sum of $17,099.90.4. Order 3 above be stayed for two years on the condition that the Mother complies with all current parenting Orders.5. In the event that the Mother complies with all current parenting [sic] Orders for two years, Order 3 above is discharged. In August 2019 the parties had a disagreement about whether the Father would facilitate Y participating in a sporting event during his scheduled time pursuant to the Final Orders. In response to his refusal the Mother sent him an SMS saying “[y]ou actually are a cunt of a human”.[3] [3]Affidavit of Ms Beckett sworn 24 June 2020, p.2. The Father described feeling “upset and anxiety” at her message and immediately reported the incident to the Region J Police District. Days later he provided a three page statement to the Town D Police Station, made a formal complaint, and sought an ADVO to protect him from any further “offensive remarks or intimidation”.[4] On 16 September 2019 the Mother consented to the ADVO for a 12 month period. It has now expired. [4]Affidavit of Ms Beckett sworn 24 June 2020, Annexure B, p.21. On 5 February 2020 the Father filed a Contravention Application alleging that the Mother, without reasonable excuse, refused to allow him to spend time with the children on 25 December 2019 (“the first alleged contravention”).
Evidence
Evidence Before The Court
The issues for determination are whether the Mother breached the Final and Varied Orders and if so:(d)Did she breach the bond; and(e)What consequences flow from this including what penalty should be imposed?THE EVIDENCE In support of his Contravention Applications the Father relied on:(a)Affidavit of Mr Beckett filed 5 February 2020;(b)Affidavit of Mr Beckett filed 26 February 2020;(c)Child Inclusive Conference Memorandum dated 16 March 2020; and (d)Outline of Case document filed 20 May 2021. The Mother relied on the Affidavit of Ms Beckett sworn 24 June 2020. The following material was tendered and marked as exhibits:(a)Exhibit 1 - Affidavit of Ms Beckett sworn 24 June 2020; (b)Exhibit 2 - Subpoena material produced by the Department of Education; and (c)Exhibit 3 – Costs Notice dated 20 May 2021. At the request of the Court and with the consent of the parties, after the hearing had concluded, the legal representatives for the Father provided to Chambers an outline of the Father’s costs calculated pursuant to the Federal Circuit Court Rules 2001 (Cth) and dated 4 June 2021. Cross-examination occurred.THE LAW The consequences of failing to comply with orders and other obligations that affect children are contained in Div 13A of the Act. It is relevant to this case that Div 13A differentiates between less serious contraventions dealt with in Sub-Div E, and more serious contraventions in Sub-Div F. This is important because of the severity, and broader range of penalties available where a serious contravention is found. The importance of this will be discussed later. In contravention proceedings the standard of proof required depends upon the order to be made. Section 70NAF of the Act provides:(1) Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.(2)Without limiting subsection (1) that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.(3) The court may only make an order under:(aa) paragraph 70NEB(1)(da); or(ab) paragraph 70NECA(3)(a); or(a)paragraph 70NFB(2)(a), (d) or (e) or(b)paragraph 70NFF(3)(a);if the court is satisfied beyond reasonable doubt that the ground for making the order exist. Judge Altobelli in Beckett (No.2) at [9] provided a statement of the applicable law, as summarised by Judge Obradovic in Deakin & Howe [2016] FCCA 2605. The law on contravention proceedings has not changed, and I reproduce the passage: [5][5]Beckett & Beckett(No.2) [2018] FCCA 667 at [9] (Judge Altobelli), quoting Deakin & Howe [2016] FCCA 2605 (Judge Obradovic) at [27]-[30], [42]-[44].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 havecontravened 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…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.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 the High Court in a different context, considered the meaning of ‘reasonable excuse’. Their Honours said:… 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.Section 70NAE was considered by Warnick J in Childers & Leslie 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. (Emphasis in original)(Footnotes omitted) THE FIRST ALLEGED CONTRAVENTION
Decision
Reasons for decision
The Mother gave the following reasons for her failure to comply with the Final and Varied Orders on 25 December 2019:(a)She was required to work on 25 December 2019 and was unable to swap her shift or arrange for family members or friends to assist her with the changeover arrangements. She says her failure to attend work would have jeopardised her employment, which she could not afford because she is the sole provider for the children. She attached to her affidavit a timesheet which indicated she commenced work at 6:30am and finished work at 7:00pm on 25 December 2019.[14](b)She had reasonably offered the Father extra time with the children on Christmas Day to make up for her inability to deliver the children to Town K Service Station in accordance with the Final and Varied Orders.(c)The Father’s decision to file a Contravention Application was an act of vindictiveness, initiated as a form of power and control, and in her words initiated to “get me in trouble”.(d)Notwithstanding the bushfires and the uncertainty they caused, the Mother did not rely on them as a reason for her failure to comply with the Final and Varied Orders.[14]Affidavit of Ms Beckett sworn 24 June 2020, annexure F, p.39.Conclusion on the first alleged contravention The Mother did not establish a reasonable excuse for her failure to deliver the children to the Father at Town K Service Station at 5:30pm on 25 December 2019. I have reached this conclusion for the following reasons:(a)She did not disclose to the Father her work commitment until three days prior to Christmas. She was unable to recall when she had received the roster but conceded the rosters are issued for “six week blocks”.(b)On disclosure of her work commitment, the Father made it clear that he expected the girls to be delivered to him in accordance with the Final and Varied Orders.(c)The Mother did offer to have the girls available for collection from her home and at an earlier time. However, when this offer was rejected by the Father, she took no other steps to come up with an alternative arrangement with him. (d)The onus was on the Mother to establish a reasonable excuse. She did not call evidence from friends, family, or her employer to demonstrate her inability to comply with the Final and Varied Orders. Indeed she gave evidence that:The Christmas period roster does change-or does tend to change-quite a lot over the time, people wanting to take time off and people swapping shifts and all that sort of stuff, so it does tend to change quite a bit.(e)The onus was on the Mother to lead evidence that would demonstrate that she had taken steps to swap shifts, take time off, or arrange for somebody else to take the children to the changeover location. She did not do this.(f)The onus was also on the Mother to prove that if she did not attend work on that day, her employment would be jeopardised. She did not do this.(g)The Mother was asked on two occasions by the Father to confirm that the children would be brought to Town K Service Station in accordance with the Final and Varied orders. She was silent on the issue to the Father. When giving evidence she said “I had no control over him turning up. I told him I was working”. I do not accept this. As a result of her passivity, the Father went to the time and expense of driving to the changeover location to collect the children in accordance with the Final and Varied Orders.(h)The Mother was critical of the Father for the lack of flexibility that he demonstrated. She also failed to demonstrate flexibility. She only made one offer to the Father to overcome her difficulty, and he refused her proposal. She did not enter into any further communication with him. I can reasonably expect more proactivity by the Mother when it was she who could not comply with the Final and Varied Orders, but none was demonstrated.(i)The Mother is a public servant who should well understand what compliance with court orders requires. She has already been through one set of contravention proceedings, where she was placed on a bond with serious ramifications in the event of her non-compliance. I note that in Beckett (No.2) the Court commented: [15]14 …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.22. 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…33. 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 orders39. The Mother was not entitled to remain passive, and then to assert a reasonable excuse…(j)These extracts are not reproduced to suggest that the Mother has a tendency to breach orders, or as evidence of her character. They highlight that in the individual circumstances of this case, a by-stander would assume that the Mother should by then have been aware of the approach taken by this Court to contraventions, and the Court’s expectations on compliance with court orders. By the time of this incident, the Mother had 18 months to reflect on the findings made in the first contravention proceedings, and to consider what changes she might take in her dealings with the Father to satisfy a court of the reasonableness of her actions. [15]Beckett & Beckett(No.2) [2018] FCCA 667 at [14], [22], [33], [39].
Ratio Decidendi
Legal Principle Established
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