Ericsson and Beesley (No.3)

Case [2016] FCCA 2111


FEDERAL CIRCUIT COURT OF AUSTRALIA

ERICSSON & BEESLEY (No.3) [2016] FCCA 2111
Catchwords:
FAMILY LAW – Contravention application – alleged contraventions of final parenting orders – whether contraventions proven – whether reasonable excuse for contraventions established – makeup time and order under s.70NBA.

Legislation:

Family Law Act 1975 (Cth) ss.70NAC, 70NAE, 70NAF, 70NBA
Federal Circuit Court Rules 2001 (Cth) r. 25B.04

Cases cited:

Childers & Leslie [2008] FamCAFC 5
Oxley & Inglis [2007] FamCA 1606
Ericsson & Ericsson [2014] FCCA 2953
Ericsson & Ericsson (No.2) [2015] FCCA 3146
In the Marriage of O’Brien (1992) 16 FamLR 723
Gaunt & Gaunt (1978) FLC 90-468
C & J [2004] FMCAfam 598
TVT & TLM [2006] FMCAfam 20
In the Marriage of Stevenson and Hughes (1993) 16 Fam LR 443
Stamp & Stamp [2014] FCCA 1269
Jets & Maker [2010] FamCAFC 55
Spencer & Verity [2012] FamCAFC 210

Applicant: MR ERICSSON
Respondent: MS BEESLEY
File Number: DGC 1317 of 2013
Judgment of: Judge O'Sullivan
Hearing date: 21 July 2016
Date of Last Submission: 21 July 2016
Delivered at: Dandenong
Delivered on: 24 August 2016

REPRESENTATION

The Applicant: Appeared in person
Counsel for the Respondent: Ms Jenkins
Solicitors for the Respondent: Rockman & Rockman

ORDERS

UPON THE COURT FINDING THAT:

  1. The respondent mother contravened order 8(b) of the orders of 18 December 2014 on 21 December 2015 without reasonable excuse.

  2. The respondent mother contravened order 4(a) of the orders of 18 December 2014 on 27 November 2015 without reasonable excuse.

  3. The respondent mother contravened order 8(b) of the orders of 18 December 2014 on 28 December 2014 but had a reasonable excuse.

  4. The respondent mother contravened order 4(a) of the orders of 18 December 2014 on 5 February 2016 but had a reasonable excuse.

THE COURT ORDERS THAT:

  1. Pursuant to s.70NBA the orders of 18 December 2014 be varied as follows:

    (a)The school holiday time in order 8 commences (and the school term time in order 4 concludes) on the last day of school in each school term.

    (b)Unless otherwise agreed or provided for in these orders, changeover where not otherwise at the children’s school be with the father to collect from the mother at the start and return to the mother at the end.

  2. Pursuant to s.70NEB make up time be provided (in addition to the time with the father under the orders of 18 December 2014) for one weekend per month from after school Friday to 5:00pm Sunday for the next 2 calendar months and on the third such weekend of each month, unless agreed otherwise.

  3. The contravention applications filed 21 December 2015 and 26 February 2016 be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Ericsson & Beesley (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1317 of 2013

MR ERICSSON

Applicant

And

MS BEESLEY

Respondent

REASONS FOR JUDGMENT

Introduction

  1. Before the Court are two contravention applications filed by Mr Ericsson (“the father”).…

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AGLC
Ericsson and Beesley (No.3) [2016] FCCA 2111
Case
[2016] FCCA 2111
Decision Date

CaseChat Overview and Summary

In *Ericsson and Beesley (No.3)*, Judge O'Sullivan of the Family Court of Australia considered applications concerning contraventions of existing parenting orders and sought to vary those orders. The proceedings involved a father and a mother, with the core dispute revolving around the mother's alleged breaches of orders made on 18 December 2014, specifically relating to school holiday and school term time arrangements for the children.

The court was required to determine whether the respondent mother had contravened specific provisions of the 18 December 2014 orders on various dates, and if so, whether she had a reasonable excuse for those contraventions. The applications before the court concerned alleged breaches on 21 December 2015, 27 November 2015, 28 December 2014, and 5 February 2016.

The court found that the mother had contravened order 8(b) on 21 December 2015 and order 4(a) on 27 November 2015 without reasonable excuse. However, it also found that she had contravened order 8(b) on 28 December 2014 and order 4(a) on 5 February 2016, but with a reasonable excuse in each instance. Consequently, the court varied the original orders pursuant to s.70NBA of the relevant legislation, clarifying the commencement of school holiday time and the method of changeover for the children. Further, the court ordered make-up time for the father under s.70NEB, providing for additional weekend time over the subsequent two months. The contravention applications filed on 21 December 2015 and 26 February 2016 were otherwise dismissed.

Orders

Orders of the court

UPON THE COURT FINDING THAT:

1.

The respondent mother contravened order 8(b) of the orders of 18 December 2014 on 21 December 2015 without reasonable excuse.

2.

The respondent mother contravened order 4(a) of the orders of 18 December 2014 on 27 November 2015 without reasonable excuse.

3.

The respondent mother contravened order 8(b) of the orders of 18 December 2014 on 28 December 2014 but had a reasonable excuse.

4.

The respondent mother contravened order 4(a) of the orders of 18 December 2014 on 5 February 2016 but had a reasonable excuse.

THE COURT ORDERS THAT:

5.

Pursuant to s.70NBA the orders of 18 December 2014 be varied as follows:

(a) The school holiday time in order 8 commences (and the school term time in order 4 concludes) on the last day of school in each school term.

(b) Unless otherwise agreed or provided for in these orders, changeover where not otherwise at the children’s school be with the father to collect from the mother at the start and return to the mother at the end.

6.

Pursuant to s.70NEB make up time be provided (in addition to the time with the father under the orders of 18 December 2014) for one weekend per month from after school Friday to 5:00pm Sunday for the next 2 calendar months and on the third such weekend of each month, unless agreed otherwise.

7.

The contravention applications filed 21 December 2015 and 26 February 2016 be otherwise dismissed.

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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