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Father Filed Contravention Application Against the Mother

Beckett & Beckett (No 3) [2021] FCCA 1759 (6 August 2021)

Final orders provided for the Mother to have sole parental responsibility for X and Y who shall spend time with their Father.  The Father filed a Contravention Application on 20 June 2017 alleging 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. The Court in adjudicating whether or not the Mother has contravened the Final and Varied Orders without reasonable excuse, relied upon the Family Law Act 1975 and relevant jurisprudence. 

Facts:

On 28 March 2017 in the first set of proceedings, Judge Altobelli made final parenting orders about X and Y.  The final orders were varied on 26 February 2018.  The Applicant Father lives with his new partner, Ms C in a rural community southwest of Town D, NSW.  He is currently unemployed due to his Post-Traumatic Stress Disorder, as a result he does not currently pay child support. 

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.

Y is in year 6 at H School.  Both X and Y preferred to see their father at their discretion.  The Father filed a Contravention Application on 20 June 2017 after the final orders providing for the Mother to have sole parental responsibility for the children who shall spend time with their Father.  He alleges 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 and thus ordered her to strictly adhere to the obligations in respect of the parenting orders currently operative.  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.  The father then 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”.  On 16 September 2019 the Mother consented to the ADVO for a 12 month period.  

On 5 February 2020 the Father filed the first alleged contravention 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”).  The Father alleged a further three contraventions providing that the mother failed to ensure that the children were made available to spend time with him on 21 February 2020, failed to advise him of the details of the High School attended by X, and failed to provide the High School with the authority to enable him to receive information about X’s schooling. 

Issues:

I. Whether the Mother has contravened the Final and Varied Orders without reasonable excuse.

II. Whether or not the order for costs is in the best interests of the children.

Applicable law:

Family Law Act 1975 (Cth) s 70NAC - defines "contravened an order" as having intentionally failed to comply with an order or made no reasonable attempt to comply with an order despite being bound by the order. 

Family Law Act 1975 (Cth) s 70NAE - defines "reasonable excuse" as 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).

Family Law Act 1975 (Cth) s  70NEB - sets out the power of the Court to impose penalties arising from contravention proceedings. 

Federal Circuit Court Rules 2001 (Cth) - basis for which the Father's costs were calculated.

Beckett & Beckett [2017] FCCA 608 - where 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. 

Beckett & Beckett (No.2) [2018] FCCA 667 - where the Mother was ordered to  enter into a bond pursuant to the provisions of s70NEC of the Family Law Act 1975 and upon the conditions set out.
 
Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655 - where the Full Court stated that 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.
 
Garrety v Steyn [2021] FamCA 67 - Austin J said that remedial action under s 70NECA(3) is discretionary; not obligatory.
 
Kalant & Jordain (No.3) [2021] FamCA 191 - where it was held that “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”. 
 
Oswin & Oswin [2019] FamCAFC 164 - confirms that the purpose of contravention proceedings is directed to future compliance.
 
McClintock & Levier [2009] FamCAFC 62 - provides that the purpose of Div 13A of the Family Law Act 1975 which empowers the Court to make orders that will secure future compliance with orders.
 
Vaughton & Randle (No.3) [2013] FamCA 467 - Dawe J observed that “the subsection has also thus far evaded any extensive judicial treatment”. 

Analysis:

The first alleged contravention was based on the father's allegation that the Mother failed to deliver the children to the Father at Town K Service Station on 25 December 2019 at 5:30pm contrary to the Varied Orders.  The Mother did not establish a reasonable excuse for her failure to deliver the children because she did not disclose to the Father her work commitment until three days prior to Christmas.  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

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.  However, the Mother was in Country P on her honeymoon.  At the time of the changeover the Mother was in email communication with her parents and the Father’s legal representative.  She informed them that the children were advised that the Father's client will collect them at the agreed time.

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.  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.  However, upon enrolling X at G High School the mother completed the enrolment form and provided the Father’s contact details.  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.  However, this was denied by the Mother and the Father had not established a prima facie case.

Conclusion:

The Court concluded that the first contravention is established on the balance of probabilities, without reasonable excuse.  The three other contravention orders were not established.  The Court ordered for Order 1 to be 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.  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.

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