BICKERTON & SEASTROM - [2021] FCCA 192

FEDERAL CIRCUIT COURT OF AUSTRALIA

BICKERTON & SEASTROM

[2021] FCCA 192

Catchwords:
FAMILY LAW – Application – contravention – reasonable excuse established.

Legislation:

Family Law Act 1975 (Cth), ss.70NAA, 70NAC, 70NAE, 70NAF, 70NBA,

70NDA, 70NEA, 70NFA

Cases cited:

Childers & Leslie [2008] FamCAFC 5

In the marriage of O’Brien [1992] FamCA 52

Taikato v R [1996] HCA 28

Applicant:

MR BICKERTON

Respondent:

MS SEASTROM

File Number:

PAC 920 of 2018

Judgment of:

Judge Obradovic

Hearing date:

4 February 2021

Date of Last Submission:

4 February 2021

Delivered at:

Parramatta

Delivered on:

5 February 2021

REPRESENTATION

Appearing for the Applicant:

Ms Rysiok

Solicitors for the Applicant:

As Family Lawyers

Counsel for the Respondent:

Ms Conti-Mills

Solicitors for the Respondent:

Makdo Family Lawyers & Associates

ORDERS

A finding be recorded that the Respondent contravened the orders of the Federal Circuit Court made on 1 May 2020 in that:
(a)On 27 June 2020 at B Park, the Respondent with reasonable excuse refused to allow the Applicant to spend time with the children X and Y.
Each party pay his or her own costs of and incidental to the contravention proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Bickerton & Seastrom is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

PAC 920 of 2018

MR BICKERTON

Applicant

And

MS SEASTROM

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to the proceedings are the parents of X who was born in 2008 and is 12 years old, and Y who was born in 2017. On 1 May 2020, the Court made interim parenting orders by consent. By those orders, the children were to spend supervised time with the father for no less than two hours each fortnight for a period of three months.
By way of Application-Contravention filed 17 July 2020, the father alleges as follows:
a)In contravention of Order 2 of Orders made on 1 May 2020, it is alleged that on 16 May 2020 at 1pm at B Park, the Respondent without reasonable excuse refused to allow the Applicant to spend time with the Children X and Y.
b)In contravention of Order 2 of Orders made on 1 May 2020, it is alleged that on 30 May 2020 at 1pm at B Park, the Respondent without reasonable excuse refused to allow the Applicant to spend time with the Children X and Y.
c)In contravention of Order 2 of Orders made on 1 May 2020, it is alleged that on 13 June 2020 at 1pm at Park B, the Respondent without reasonable excuse refused to allow the Applicant to spend time with the Children X and Y.
d)In contravention of Order 2 of Orders made on 1 May 2020, it is alleged that on 27 June 2020 at 1pm at B Park, the Respondent without reasonable excuse refused to allow the Applicant to spend time with the Children X and Y.
On 14 September 2020, the Court dismissed charges 1, 2…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BICKERTON & SEASTROM

Details

AGLC: BICKERTON & SEASTROM [2021] FCCA 192
Case: [2021] FCCA 192
Decision Date: 5 February 2021

CaseChat Overview and Summary

In the matter of Bickerton & Seastrom, heard by Judge Obradovic, the applicant sought to establish that the respondent had contravened parenting orders made on 1 May 2020. The specific contravention alleged was that on 27 June 2020, the respondent, at B Park, refused to allow the applicant to spend time with the children, X and Y.

The central legal issue before the court was whether the respondent had a reasonable excuse for refusing the applicant time with the children on the specified date.

Judge Obradovic found that the respondent did establish a reasonable excuse for the contravention. Consequently, the court recorded a finding that the respondent had contravened the orders, but that this contravention was committed with a reasonable excuse. The court ordered that each party bear their own costs of and incidental to the contravention proceedings.

Orders

Orders of the court

A finding be recorded that the Respondent contravened the orders of the Federal Circuit Court made on 1 May 2020 in that:

(a) On 27 June 2020 at B Park, the Respondent with reasonable excuse refused to allow the Applicant to spend time with the children X and Y.

Each party pay his or her own costs of and incidental to the contravention proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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