Beckett & Beckett (No 3)
[2021] FCCA 1759
•6 August 2021
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 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.
IT IS NOTED that publication of this judgment under the pseudonym Beckett & Beckett (No 3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
This case is about two children, X born in 2007, aged 14 and Y born in 2009, aged 12.
On 28 March 2017 in the first set of proceedings, Judge Altobelli (as his Honour was then known) made final parenting orders about X and Y (“the Final Orders”). The final orders were varied on 26 February 2018 (“the Varied Orders”).
These reasons for judgment explain the Court’s decision on whether the Mother has contravened the Final and Varied Orders without reasonable excuse.
THE PARTIES
The Applicant Father (“the Father”) was born in 1974 and is 47 years old.
He lives with his new partner, Ms C in a rural community southwest of Town D, NSW. The Father is not currently employed due to his ongoing Post-Traumatic Stress Disorder, for which he receives treatment. As a result he does not currently pay child support.
The Respondent Mother (“the Mother”) was born in 1979 and is aged 42. She is a public servant.
The Mother recently remarried Mr E. Together they purchased a home in the Region F area. The two children live with the Mother and Mr E. He has three children from his previous marriage who live with their mother.
X attends G School where she is in year 8. The Child Inclusive Conference Memorandum of 16 March 2020 (“the Memorandum”) described X as “confident, talkative and keen to have her views heard”.[1] At that time X was placing high regard on her friendships and socialising. She told the Family Consultant that while she loves her father, she would prefer to spend time with him when she wanted to.
[1] Child Inclusive Conference Memorandum dated 16 March 2020 (“CIC Memorandum”).
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”).
By way of a further Contravention Application filed 26 February 2020, the Father alleged a further three contraventions namely that the Mother:
(a)failed to ensure that the children were made available to spend time with him on 21 February 2020 (“the second alleged contravention”);
(b)failed to advise him of the details of the High School attended by X (“the third alleged contravention”); and
(c)failed to provide the High School with the authority to enable him to receive information about X’s schooling (“the fourth alleged contravention”).
On 12 March 2020, the parties and children were ordered to attend a Child Inclusive Conference. On 16 March 2020 they met with a Family Consultant who prepared a Memorandum.
Due to the COVID-19 pandemic, the hearing on 24 July 2020 was vacated and stood over until 21 May 2021 to enable the matter to proceed in person.
THE FATHER’S POSITION
The Father argues that if the Court finds that the Mother has contravened the Final and Varied Orders, it constitutes a breach of the bond imposed by the May 2018 Orders under s 70NEC of the Family Law Act 1975 (Cth) (“the Act”).
The Father argues if the Court finds the Mother breached the bond, Order 3 of the May 2018 orders (“the stayed cost order”) is self-executing, and the Mother is required to pay the Father’s costs of $17,099.90 for the first contravention proceedings.
The Father submitted that the alleged contraventions should be classified as more serious contraventions pursuant to s 70NFA of the Act.
He says it is open for the Court to make a range of orders by way of penalty including a bond with surety, the imposition of a fine, the imposition of a sentence of imprisonment, an order for make-up time and compensation. In addition he seeks an order that the Mother pay his costs on an indemnity basis.
THE MOTHER’S RESPONSE
The Mother was unrepresented at the hearing. The procedure for determining the matter was explained to her, and she was given the opportunity to consult with the duty lawyer.
The Mother made a number of concessions. She accepted that she had been served with the Contravention Applications, and that she was aware of and understood the Final and Varied Orders.
She admitted the first alleged contravention but said she had a reasonable excuse for contravening it. She denied the remaining three alleged contraventions.
ISSUES
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
The Father alleges that the Mother contravened Order 4(c)(vii) of the Final Orders and Order 1(b) of the Varied Orders by failing to deliver the children to the Father at Town K Service Station on 25 December 2019 at 5:30pm. Those Orders are reproduced below:
(4) The children spend time with the father as follows:
…
…
(vii) from Christmas Day at 5:30pm until Boxing Day at 8:30pm in years ending in an odd number.
1. …
…
b. The Mother and the Father facilitate changeover in accordance with Order 4(c)(vi) and 4(c)(vii) at Town K Service Station.
The Mother admitted she had contravened these Orders but submitted that she did so with a reasonable excuse. She said she was required to work and had offered the Father the option of collecting the children from her home on Christmas Day.
The parties began communicating about the Christmas Day arrangements on around 13 December 2019. On that occasion the Mother asked the Father whether he would agree to collect the girls from Town L McDonald’s on Christmas Day and return them to Town L McDonald’s on Boxing Day.
The messages were sent in the context of bushfires that were ravaging New South Wales. Those fires directly impacted the children and the parties. The Mother says that she had planned for the children to spend Christmas Day in Town M. The Father, who lives in a rural location south of Town D New South Wales, would no doubt have had to plan his travel arrangements carefully. On 14 December 2019 the Father indicated that he would agree to meet at Town L McDonald’s at 5:30pm on Christmas Day with the caveat that it “depends on fires”.[6]
[6]Affidavit of Ms Beckett sworn 24 June 2020, Annexure D, p.32.
Further negotiations regarding the children’s return time were exchanged between the parties on 16 December 2019. Again the Father noted that his agreement was dependent upon “fires and road closure”.[7]
[7]Ibid.
The Mother’s affidavit sworn 24 June 2020 deposes further messaging between the parties on 19 December 2019. The Mother annexes them to her affidavit. They indicate the vitriol and high conflict between the parties. The momentary cooperation between the parties displayed on 16 December 2019 was brought to an end on 19 December 2019, when a disagreement arose about the school holiday arrangements. This culminated in the Father sending the Mother the following message at 5:51pm:
Due to the current bushfire situation I will not be able to collect the girls from Town L McDonald’s as roads are closed in the area. I will collect the girls from Town K at 5:30pm on Christmas Day. And return them at 8:30pm to Town K Boxing Day as per the orders. Thank you.[8]
[8]Affidavit Mr Beckett filed 26 February 2020, Annexure D, p.43.
On Sunday 22 December 2019 at 6:04pm the Mother sent the following text message to the Father:
Just letting you know that I am working dayshift on Christmas Day. I am unable to take the girls to Town K McDonald’s at 5:30pm. The girls will be available for you to collect from my house. I am happy for you to pick them up earlier so you can spend more time with them on Christmas Day. You can pick them up at a time that suits you. Please let me know what time so I can make sure they are ready. I will collect them from Town K McDonald’s at 8:30pm on Boxing Day.[9]
[9]Ibid.
This was the first time she had advised the Father of her work commitments. The Father responded at 6:09pm “[a]s per the family law court orders. I will pick the girls up from Town K at 5:30pm on Christmas Day”.[10] The Mother did not respond.
[10]Ibid p.43.
The following day at 6:15pm the Father sent the following follow-up text message to the Mother stating “[a]s per the family law court orders. I will pick the girls up from Town K at 5:30pm on Christmas Day”.[11] Again, the Mother did not respond.
[11]Ibid.
On Wednesday 25 December 2019 the Father and his partner travelled for around two hours to Town K Service Station to collect the children in accordance with the Final and Varied Orders. Unable to locate the children, at 5:44pm he sent a text message to the Mother enquiring as to the estimated time of arrival of the girls. At 5:57pm the Mother responded:
I am currently at work at a job. You were notified I was working dayshift today and given the opportunity to collect the girls from my house at a time suitable for you. You chose to decline this reasonable offer. I don’t finish work till 6:30pm. I won’t be able to get the girls to Town K until 8pm if you want to wait for them.[12]
[12]Ibid.
The Father responded at 6:04pm:
No, I’m sorry. We are here in accordance with the court orders of which, you have again failed to comply with. I will be making an application to the Court for contravention to the orders. Please have the children contact me so that we can speak to them on Christmas. We will be collecting the children on 2 January 2020 as per the family law court orders.[13]
[13]Ibid Annexure E, p.47.
At the hearing on 21 May 2021 having heard cross-examination, I found the Father established a prima facie case. The Mother must establish a reasonable excuse for the contravention on the balance of probabilities pursuant to s 70NAF(2) of the Act. The Mother was invited to make submissions on this.
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 orders
39. 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].
For the reasons set out above, I find that the Mother made no reasonable attempt to comply with Order 4(c)(vii) of the Final Orders and Order 1(b) of the Varied Orders. Accordingly the first contravention is established on the balance of probabilities, without reasonable excuse.
THE SECOND ALLEGED CONTRAVENTION
The Father alleges that the Mother contravened Order 4(a) of the Final Orders, and Order 1(a) of the Varied Orders by failing to ensure that the children were made available to spend time with their Father on 21 February 2020 after school. The Orders are reproduced below:
(4)… 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.
1. …
a. … 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.
The Mother denied the second alleged contravention. Following cross-examination I found that the Father had established a prima facie case.
The Father says that due to a swap of weekends, he was spending time with the children for the first time during the new school term. It seems that he had not seen the children since at least early December 2019 due to their sporting commitments, bushfire interruption and parental disputes more generally.
The Father alleges that he arrived at Town H Public School to collect Y at 2:45pm. He waited at the usual meeting point. When she had failed to arrive at 3:10pm he went to the school office. He spoke to the school principal who he says advised him that Y had been collected from school and had returned home with the maternal grandparents, Mr N & Ms O. The Mother disagrees with this version and alleges that “Y ran home after school as she apparently did not want to go with Mr Beckett for the weekend”.[16]
[16]Affidavit of Ms Beckett sworn 24 June 2020, p.10, paragraph 17.
In any event the Father drove to their home, parked outside and sounded his horn. He did not leave the car. He then had his legal representative communicate with the Mother by email.
What happened with X is not as clear. The Father said he had planned to collect X after collecting Y. X was by then attending high school. The Mother alleges X was waiting to be collected and that she eventually asked her grandfather to collect her from school when the Father did not arrive.
The Mother was in Country P on her honeymoon. She had not advised the Father that the children were in the care of their grandparents, partly because they were not required to facilitate the changeover which should have happened at the children’s schools.
Fortunately at the time of the changeover the Mother was in email communication with her parents and the Father’s legal representative. At 4:23pm she wrote:
The children are currently not in my care. I am out of the country with limited wifi access. I have advised them that your client will collect them at 4:30pm.[17]
[17]Affidavit Mr Beckett filed 26 February 2020, Annexure N, p.80.
The Mother was advised by the Father’s legal representative that:
My client will be at your residence at 4:30pm to collect the children. He will remain in his vehicle and wait for the children to come outside.[18]
[18]Ibid.
Evidently the grandparents and the Father had a confrontation outside of the house that was recorded. The children did not leave with the Father.
The Mother pleaded reasonable excuse and was invited to make submissions on this.
The Mother gave the following reasons for her failure to comply with the Final and Varied Orders on 21 February 2020:
(a)She was overseas when the alleged contravention took place, but prior to her departure had made her parents and the children aware that the Father would be collecting the children from school on 21 February 2020.
(b)She had limited communication with the children and her parents since she departed for her honeymoon in 2020.
(c)When the problem was brought to her attention she acted appropriately and did all that she could to facilitate compliance with the Final and Varied Orders. She said:
I am not sure what more I actually could have done to make that happen considering I was not physically in the country. When I left for Country P on the Monday, my impression was the children were going to be collected from school on the Friday.
Conclusion on the second alleged contravention
On the balance of probabilities, the Mother did establish a reasonable excuse. I have reached this conclusion for the following reasons:
(a)She demonstrated that she took all reasonable steps in advance of her departure to ensure that the children would spend time with the Father on 21 February 2020.
(b)It would appear that Y took it upon herself to leave the school grounds and return home. When this was brought to the Mother’s attention she took steps within her control, by making new arrangements for the children’s collection from home. I am not sure what more she could have done in those circumstances.
(c)The apparent refusal or reluctance of Y to spend the weekend with her Father was consistent with the views she expressed to the Family Consultant who said “she mostly hates” the travel to the Father’s home, explaining that she often feels nauseous from the trip. She said that she “‘does not really’ want to go to her father’s home at all”.[19] She later added “Y said that her mother tells her to spend time with her father and says that ‘it will be good to spend time with your Dad’”.[20]
(d)I am also mindful that the children had not spent time with the Father for several months. Over that period the children had navigated their way through bushfires that ravaged their local area and interfered with their holiday time with the Father. X had been negotiating the time she spent with the Father and the impact of this on her sports commitments. She had also started high school and the Mother had remarried. Without the Mother’s physical presence on 21 February 2020, it is perhaps not surprising that the Father was met with resistance from the children about leaving with him for the weekend. I cannot hold the Mother responsible for the children’s failure to attend.
[19] CIC Memorandum.
[20]Ibid.
Accordingly the second alleged contravention is not established.
THE THIRD ALLEGED CONTRAVENTION
The Father contends that the Mother contravened Order 10(e) of the Final Orders by failing to advise the Father of the details of the high school that X was attending. Order 10(e) expresses:
(10) The Mother shall ensure that the Father is kept informed by way of email as soon as it is reasonably practical of:
…
(e) Any other important matter relevant to the welfare of the children.
While the Mother has sole parental responsibility for the children, Order 10(e) requires her to keep the Father informed of matters relevant to the welfare of the children. The Father argues that enrolment at a new school is a “matter relevant to the welfare” of a child.
The Mother denied the third alleged contravention. Following cross-examination I found that the Father had established a prima facie case.
The Mother argues that her reasonable excuse was:
(a)Upon enrolling X at G High School she completed the enrolment form and provided the Father’s contact details. She also provided the school with a copy of all court orders. Documentation was tendered to support this.
(b)The Mother says in her affidavit:
Mr Beckett was aware that X was enrolled at G High School, as X had advised me on several occasions that during their visits with Mr Beckett towards the latter part of 2019, Mr Beckett would often make mention of her starting high school at G High. X has also told me that she has notified Mr Beckett that she is enrolled at G High School as she was extremely excited about starting High School. At no stage have I ever received a text message or email from Mr Beckett clarifying that X was in fact attending G High School if he was unsure, which would have been a much simpler and more logical and reasonable approach to take rather than lodging a contravention.[21]
[21]Affidavit of Ms Beckett sworn 24 June 2020, p.11, paragraph 22.
Conclusion on the third alleged contravention
The Mother did establish a reasonable excuse. I have reached this conclusion for the following reasons:
(a)The Father was cross examined on this matter and I did not find his evidence credible.
(b)The enrolment process commenced 10 months before X commenced year 7, and during that time she was spending regular time with the Father. The Mother made the expression of interest for X’s attendance at the school in March 2019. She received confirmation of her expression of interest in May 2019. The Application forms were completed in July 2019 and signed by both the Mother and X. No doubt X would have attended an orientation in 2019. The Father in his affidavit and under cross-examination conceded that X had mentioned to him the possibility of going to G High School, but emphasised it was a possibility. I cannot accept that X’s high school enrolment was not within the Father’s knowledge.
(c)Before at least 21 February 2020 the Father must have been aware of the school X was attending because he was intending to collect X from school on that day, after he had collected Y.
(d)The Father argues that there is no evidence to show that the Mother took steps to provide the enrolment information to him. Arguably though, the Mother could have assumed that upon providing the school with his details, and relying on her conversations with X, it was not a matter that required further communication. There was no evidence to show it was ever an issue of contention. Under cross-examination when asked whether at any time he thought to text the Mother to confirm what X had told him about her high school enrolment. He responded “no…firstly, domestic violence…and secondly it’s not my obligation. It’s your obligation to notify me, in accordance with the orders, as to the schools at which the children attend”.
(e)I do not accept the Father’s reliance on domestic violence. The parties have each annexed to their affidavits text messages that they have exchanged when they felt it was necessary. Their SMS exchanges continued in 2019 notwithstanding the ADVO for the Father’s protection.
(f)Earlier in these reasons I set out some of the Court’s observations in Beckett (No.2). They equally apply to the Father, particularly the observation that “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”.[22]
(g)The Final Orders did not specifically require the Mother to advise the Father of the enrolment plans for X. It required her to communicate to the Father important matters relevant to the welfare of the child. The Father reasonably believes that school enrolment falls into this category. I accept this, however the Father had not communicated with the Mother on the issue at all, until he raised it in the Contravention Application filed 26 February 2020. No evidence was put before the Court to indicate that the Father considered this information important and relevant to the welfare of X and that it was being withheld. If he had, and had been met with silence or a refusal to provide the information, the conclusion reached might be different. The Father was not entitled to remain passive and then file a Contravention Application to remedy his apparent concern.
[22]Beckett & Beckett(No.2) [2018] FCCA 667 at [33].
Accordingly the third alleged contravention is not established.
THE FOURTH ALLEGED CONTRAVENTION
The Father contends that the Mother contravened Order 11 of the Final Orders by failing to provide X’s high school with authority to enable the Father to receive information about X. Order 11 states:
(11) 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 Mother denied the alleged contravention. Following cross-examination I found that the Father had not established a prima facie case.
Accordingly the fourth alleged contravention is not established.
IS THE MOTHER IN BREACH OF THE BOND IMPOSED ON 10 MAY 2018?
What flows from the Court’s finding in relation to contravention one is that the Mother is in breach of the bond.
While the bond has now expired, the breach occurred during the period of the bond.
No surety or security was required when the Mother entered into the bond. Order 3 of the May 2018 Orders requiring the Mother to pay the Father’s costs of $17,099.90 was stayed for two years, provided the Mother complied with the Final and Varied Orders. I have found that she failed to comply with the Final and Varied Orders without a reasonable excuse.
On the making of that finding, Order 3 of the May 2018 Orders becomes self-executing. It would not be appropriate or necessary in my view to then deal separately with the Mother for breaching the bond.
In Garrety v Steyn [2021] FamCA 67 at [61] Austin J said:
Remedial action under s 70NECA(3) is discretionary; not obligatory. In imposing the sanctions upon the mother for counts 2 and 4 in these proceedings, I have taken into account her breach of the existing good behaviour bonds as aggravating circumstances. It would be tantamount to double-dipping or double jeopardy for any further sanction to fall upon her in respect of the former bonds under s 70NECA(3) of the Act.
The execution of Order 3 of the May 2018 Orders, imposes a significant penalty on the Mother, and it would be “double dipping” to impose an additional penalty for her breach of the bond.[23] This however does not relieve her from the imposition of penalties arising from the contravention proceedings.
[23]Garrety v Steyn [2021] FamCA 67 at [61].
IMPOSITION OF PENALTY
The power of the Court to impose penalties arising from contravention proceedings is set out in s 70NEB of the Act. The Court’s finding in relation to contravention one also activates Sub-Div E of Div 13A of Pt 7 of the Act. The contravention has been established without reasonable excuse, but as this is the Mother’s second contravention it is argued by the Father that it should fall into a category of a serious contravention under Sub-Div F of the Act.
Section 70NEA of the Act prescribes the circumstances in which the provisions in Sub-Div E apply. Relevant to these proceedings s 70NEA provides as follows:
(1) Subject to subsection (4), this Subdivision applies if:
(a) a primary order has been made, whether before or after the commencement of this Division; and
(b) a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention) of the primary order; and
(c) the person does not prove that he or she had a reasonable excuse for the current contravention; and
(d) either subsection (2) or (3) applies;
and, if the primary order is an order for the maintenance of a child, this Subdivision applies irrespective of the period since the current contravention occurred.
(2) For the purposes of paragraph (1)(d), this subsection applies if no court has previously:
(a) made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(b) under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.
(3) For the purposes of paragraph(1)(d), this subsection applies if:
(a) a court has previously:
(i) made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(ii) under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and
(b) the court, in dealing with the current contravention, is satisfied that it is more appropriate for that contravention to be dealt with under this Subdivision.
(4) This Subdivision does not apply if, in circumstances mentioned in subsection (2), the court dealing with the current contravention is satisfied that the person who contravened the primary order has behaved in a way that showed a serious disregard for his or her obligations under the primary order.
(Emphasis in original)
Section 70NFA of the Act details when Sub-Div F will apply:
(1) Subject to subsection (2), this Subdivision applies if:
(a) a primary order has been made, whether before or after the commencement of this Division; and
(b) a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention) of the primary order; and
(c) the person does not prove that he or she had a reasonable excuse for the current contravention; and
(d) either subsection (2) or (3) applies.
(2) For the purposes of paragraph (1)(d), this subsection applies if:
(a) no court has previously:
(i) made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(ii) under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and
(b) the court dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order.
(3) For the purposes of paragraph (1)(d), this subsection applies if a court has previously:
(a) made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(b) under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.
(4) This Subdivision does not apply if the court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under Subdivision E.
(5) This Subdivision applies whether the primary order was made, and whether the current contravention occurred, before or after the commencement of this Division.
Under s 70NFA(3) of the Act this matter automatically falls within Sub-Div F because this Court has already made an order imposing a sanction or taking an action in respect of a contravention by the Mother of the Final and Varied Orders.
There is a discretion under s 70NFA(4) to deal with the contravention under Sub-Div E if I am satisfied that it is more appropriate to do so. Dawe J observed in Vaughton & Randle (No 3) [2013] FamCA 467 at [50] that “the subsection has also thus far evaded any extensive judicial treatment”. Notwithstanding this observation, it is appropriate in my view to treat this as a serious contravention under Sub-Div F.
It now remains to decide what penalty is an appropriate one.
The Full Court in Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655 at [50] said:
… Given the consequences that potentially flow from treating the matter under subdivision F rather than subdivision E, we think it was incumbent upon the trial judge to spell out clearly what considerations enliven the extra powers available under that section.
Section 70NFB sets out the orders that are available to be made by the Court. In particular, s 70NFB(1)(a) provides that the Court must make an order that the person who committed the contravention pay all of the costs of the other party to the proceedings unless satisfied that it would not be in the best interests of the children to make that order. Whether or not an order is made in relation to costs, the Court must consider making at least one order under s 70NFB(2). Section 70NFB(2) sets out the orders that are available to be made and in summary are as follows:
(a)A community service order;
(b)A bond;
(c)A further parenting order that compensates a person for time;
(d)A fine of not more than 60 penalty units;
(e)Imprisonment;
(f)An order compensating a parent for expenses incurred in relation to the contravention; or
(g)A costs order.
The Father asked me to enforce the stayed cost order of $17,099.90 from the first contravention proceedings, make an order that the Mother pay his costs of $44,721.74 on an indemnity basis and a surety to the Court of an amount not less than $20,000.00. He also submitted on the appropriateness of a custodial sentence.
On financial penalties the Mother said “I am the sole provider for the children, financially. I get no assistance from their father”...[24] She said she earns approximately $110,000 per annum and has received no child support from the Father for at least two years. She has bought a house jointly with her husband and there is a mortgage of $680,000 attached to the home.
[24]Affidavit of Ms Beckett sworn 24 June 2020, p.13, paragraph 25.
As observed by Gill J in Kalant & Jordain (No 3) [2021] FamCA 191 at [5] “it is not the purpose of contravention proceedings to punish, or to deter others, or to salve the irritation of the other parties to the litigation, or to denounce the non-compliant conduct”. There are a range of authorities that confirm the purpose of contravention proceedings is directed to future compliance.[25]
[25]Oswin & Oswin [2019] FamCAFC 164; McClintock & Levier [2009] FamCAFC 62.
As I indicated at the hearing, I am not inclined to make a community service order or to impose a sentence of imprisonment. These outcomes would be entirely disproportionate to the offence.
There are financial penalties that can be imposed. As I have already outlined, I am of the view that the Mother’s contravention enlivens the stayed cost order and requires her to pay the Father’s costs from the first contravention proceedings of $17,099.90.
The impact that this will have on the Mother and by virtue of this, the children indirectly, weighs heavily on me. Ultimately, she was aware when the Court made the May 2018 orders that this would be an outcome in the event of her non-compliance with the Final and Varied Orders. The impact on the Mother was considered by Judge Altobelli when he made the stayed costs order. Perhaps, the imposition of this penalty is consistent with the broader purposes of Div 13A which empowers the Court to make orders that will secure future compliance with orders.[26]
[26]McClintock & Levier [2009] FamCAFC 62 at [233] (Cronin J).
I must then consider the Father’s submission that the Mother’s contravention is so serious that further penalties should also be imposed. Section 70NFB(2)(d) empowers the court to impose a fine. Given that she provides the sole financial support for the children, I am not inclined to impose a fine or any further financial penalty.
Any additional penalty imposed on the Mother must be focussed on future compliance. Therefore, I will make a further parenting order that compensates the Father for the time he lost with the children by giving him the option of extending his Christmas Day time in 2021 by 48 hours so it concludes at 8:30pm on 28 December 2021. Such compensatory time will at least assist in counteracting the effects of the children not having spent time with him on Christmas Day in 2019.
The Mother was already subject to a bond made under s 70NEB(1)(d) and comes before the Court in circumstances where she has not been of good behaviour. A further bond could be imposed given the history of the matter. At this point I wish to make some reflections on the way both the parties have conducted themselves.
While the Mother’s blatant disregard for her obligation under the Final and Varied Orders on Christmas Day in 2019 was disappointing, I am pleased to see that since early 2020 the children seem to be spending regular time with their Father.
The Mother argued that the Contravention Applications were lodged by the Father “purely to use the system to be vindictive and spiteful”. In Beckett (No.2) at [67] Judge Altobelli observed that the Father perceived that “this case is a power struggle between the parents in which he would ultimately like to win”.
Ultimately whilst the Father alleged four contraventions, I was only satisfied of the first contravention. His behaviour towards the Mother and her compliance with the Final and Varied Orders remains inflexible, rigid and punitive. The time and energy he expended in pursuing and conducting these proceedings and the ADVO, and the legal fees he incurred, would arguably have been much better directed towards his children in other ways.
I am mindful that requiring the Mother to enter into a good behaviour bond with or without surety or security may secure her future compliance with the Final and Varied Orders. However, I am more concerned that it will encourage the Father to look for opportunities to bring the Mother back before this Court with a view to inflicting maximum punishment. That is not the purpose of the enforcement regime.
The Mother flagged that she would like the Final Orders amended to allow the children to exercise their discretion as to the time they spend with the Father. This request was consistent with the future directions proposed by the Family Consultant in her Memorandum. There she said:
…the current orders do not appear to be in line with the children’s views. …there are concerns about the children’s reported views and feelings being at odds with ordered parenting arrangements…given that the children have expressed views about their parenting arrangement, the Court is encouraged to consider them.[27]
[27]CIC Memorandum dated 16 March 2020.
I hope that the Father has read and considered the views expressed by the children and the Family Consultant in the Memorandum carefully. I also hope he can consider the impact that ongoing litigation will have on the psychological wellbeing of the Mother, and how that may indirectly impact the children.
Given the history of litigation between the parties and the level of acrimony I am not confident that either party has the capacity to let go of this dispute. For these reasons I am not prepared to place the children at the centre of the conflict and hand over the decision making to them. Therefore, I will not vary the Final Orders in the manner sought by the Mother.
However, I will make an order requiring the parties to attempt to resolve all future disputes about the implementation and compliance with these parenting orders via mediation, and where appropriate that such process be a child inclusive or focussed one. This is consistent with the recommendations of the Family Consultant.
COSTS
The Father has also sought an order for costs pursuant to s 70NFB(2)(g). Exhibit 3 sought to quantify the costs. If costs were awarded on an indemnity basis, the Father claims costs in the sum of $44,721.74. If costs were calculated in accordance with Sch 1 of Federal Circuit Court Rules 2001 (Cth) the Father submits that his costs would be assessed at $16,235.00.
Section 70NFB(1)(a) of the Act obliges the Court to make a costs order against the Mother, unless satisfied it would not be in the children’s best interests to do so, in which case, one of the alternative orders prescribed under s 70NFB(2) must be made. If I were minded to make such a costs order I would also need to consider the proportion of the Father’s costs that the Mother should pay, given only one of the four alleged contraventions was established.
As noted above an order for compensatory time will be made as I am satisfied it would not be in the children’s best interests to make a costs order against the Mother because of her financial circumstances.
I have considered the matters set out in s 117(2A) of the Act which informs the exercise of discretion under s 70NFB(2)(g) and s 70NFB(2)(h). Firstly, to impose a costs order on the Mother would have the potential to cause her financial difficulties, 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. However, the Mother’s lack of capacity to meet a costs order is only one of the considerations that the Court must take into account.
The Court must consider the conduct of the parties to the proceedings. While the Mother’s attitude towards the Father and her need to comply with the Final Orders was the main underlying cause of non-compliance, the Father did not attempt to resolve matters in any other way. Moreover the costs that he incurred in pursuing his contravention application are arguably disproportionate to the outcome.
For these reasons I am not satisfied that there are circumstances that justify the making of any costs order and I therefore dismiss the application for costs.
Conclusions as to orders
There is something possibly perverse about requiring the Mother to pay the Father $17,099.90 when she has received only minimal child support from him for several years and has met, and continues to meet, all of the children’s expenses.
While the cost award would not likely be treated as a prescribed non-agency payment by the Department of Human Services (“the Department”), I will allow the Mother six months to approach the Department and seek that the payment be treated as a direct child support payment from the Father to her and credited towards any future child support assessments between the parties. I would hope that the Father supports this as a gesture of goodwill and support for the care of his children.
To be clear, in the event that the $17,099.90 is not treated as a direct child support payment and credited towards any future child support assessments within six months of the date of these orders, the sum falls payable and due.
Order 1 has been stayed for six months for this purpose.
An order for compensatory time between the children and the Father will be made.
A further order will be made requiring the parties to participate in a child inclusive or child focussed Family Dispute Resolution process before seeking further relief in relation to the parenting orders.
Accordingly, I make the orders as set out at the start of these reasons.
I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse. Associate:
Dated: 6 August 2021
SCHEDULE ONE
(Final Orders)
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA FILE NO: (P)WOC315/2014 BETWEEN:
MS BECKETT (Applicant)AND:
MR BECKETT (Respondent)AND:
INDEPENDENT CHILDREN’S LAWYERBEFORE: JUDGE ALTOBELLI
DATE: 28 March 2017
MADE AT: WOLLONGONG
UPON APPLICATION MADE TO THE COURT by Ms Thakur for the Applicant, Mr Smith by telephone for the Respondent, and Ms Pearson as the Independent Children’s Lawyer.
THE COURT ORDERS THAT:
Parenting
(1)All previous orders in these proceedings are hereby discharged
(2)The Mother have sole parental responsibility for the children, X (born in 2007) and Y (born in 2009).
(3)The children live with the Mother.
(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;
(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.
(5)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 Q and Ms R, 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 S or Mr T‘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.
(6)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.
(7)For the purpose of changeover the Father and the Mother will facilitate changeover at Town K Service Station.
(8)The parents are restrained from denigrating the other in the presence of the children.
(9)Both parents are prohibited from publishing any information on social media that refers in any way to the other parent.
(10)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.
(11)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.
(12)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.
(13)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
(14)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 U Street, Town H NSW (being the whole of the land contained in Certificate of Title folio identifier …).
(15)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 Westpac Bank Corporation 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.
(16)Within 30 days, any funds held on trust or in a controlled monies account by V 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.
(17)The Mother shall be the sole owner of and solely responsible for:
(a)any funds contained in the Mother’s Bank W account (a/c XX55);
(b)the Motor Vehicle 1 (registration number …).
(18)The Mother is declared to have sole right title and interest in any interest in her name in the Super Fund Z.
(19)The Father shall be the sole owner of and solely responsible for:
(a)any funds contained in the Father’s Westpac Bank account (a/c XX63);
(b)the Motor Vehicle 2 (registration number …);
(c)the Boat (registration number …).
(20)Any funds held on trust or in a controlled monies account by V 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.
(21)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.
(22)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.
(23)The Mother’s application for child support pursuant to s.123 of the Child Support (Assessment) Act 1989 be dismissed.
(24)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.
THE COURT FURTHER ORDERS THAT:
(25)The Mother’s Application in a Case filed 20 December 2016 be dismissed.
SCHEDULE TWO
(Varied Orders)
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA FILE NO: (P)WOC315/2014 BETWEEN:
MR BECKETT (Applicant)AND:
MS BECKETT (Respondent)AND:
INDEPENDENT CHILDREN’S LAWYERBEFORE: JUDGE ALTOBELLI
DATE: 26 February 2018
MADE AT: WOLLONGONG
UPON APPLICATION MADE TO THE COURT by Mr Gardner of Counsel for the Applicant, and the Respondent in person, and Mr Jackson of Counsel for the Independent Children’s Lawyer.
THE COURT ORDERS PENDING FURTHER ORDER THAT:
- Final Parenting Orders made on 28 March 2017 be varied as follows:
- 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.
- The Mother and the Father facilitate changeover in accordance with Order 4(c)(vi) and 4(c)(vii) at Town K Service Station.
- Until 29 March 2019, the Father's time with the children be conditional upon either or both of the Paternal Grandparents Mr Q and Ms R 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 S or Mr T must be present during all overnight time and will notify the Mother in writing of who will supervise that time.
- Both the Mother and Father will enrol in and ensure their completion of a Parenting After Separation Course within six months of the Orders.
- The matter be adjourned to a date to be advised for delivery of reserved Judgment regarding the Contravention Application.
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