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Children and custody

Reasonable excuse for contravention of parenting orders?

By October 25, 2018October 28th, 2021No Comments

What is a reasonable excuse? In the case of Snell & Snell [court appointed pseudonyms], heard recently in the family court in Brisbane, a mother was alleged to have contravened several parenting orders relating to her 12 year old boy who had been previously ordered to live with her. But the mother was able to demonstrate “reasonable excuse” with regard to several orders relating to the father’s physical time with the boy and telephone contact with him.

There had already been a long history of litigation between the parents, with the father having alleged parental alienation while the mother alleged family violence perpetrated by the father. At a certain point, the mother took the child to a doctor where the boy was found to be presenting with self-harming and disobedience issues which were said to have occurred “since becoming aware that his father is wanting custody according to his mother”. The mother then failed to facilitate further court-ordered contact with the father.

Rather than seek to discharge the existing parenting orders when she made the decision that further contact with the father should stop, the mother didn’t take any legal action but simply withheld the boy. The court noted her reason for this was likely “a combination of not having legal representation at times and just wanting everything to go away”.

The father eventually made a contravention application. The court noted its concern that the father only did this 29 months after the contact with the child had stopped, which the father explained as due to the fact he could not afford to pay the filing fee; “but when he became aware a contravention application did not impose a filing fee, he then filed one”.

When parents breach parenting orders, the other parent can bring a contravention application, which the contravening parent can attempt to defend by demonstrating a “reasonable excuse” for the breach.  The onus to prove reasonable excuse rests with the contravening parent. The reason needs to be objectively reasonable, not subjective.

“Reasonable excuse” for non-compliance is dealt with in the Family Law Act 1975 in section 70NAE. The section gives a non-exhaustive list of reasons for a reasonable excuse, to include “believing on reasonable grounds that the actions were necessary to protect the health or safety of the child”.

In this case the judge said:

“I find it is likely that the child reported to his mother incidents that he either exaggerated or embellished – and he did so because he found it too hard to have both his parents in his life at that stage. The mother sought appropriate medical support at the time. That evidence supports the conclusion that the visits caused the child some anxiety – not because anything happened at the visits – but for the other contextual reasons”.

“In my view, the mother felt a need to protect, as she saw it, [the child] and I am satisfied that she had discharged the onus that at the time, she had a reasonable excuse for doing so”.

However, the judge said the mother had no “reasonable excuse” for not providing the father with school and medical reports: “The father, in my view, is still entitled to be informed of [the child’s] progress.” Nonetheless, the court did not impose a sanction in relation to the orders which had been breached, nor was any costs order made (as the parties were both self-represented).

While the mother in this case was successful in arguing she had a reasonable excuse for failing to comply with parenting orders, in other similar cases parents have been unable to prove they had a reasonable excuse and have been penalised.

We stress to our clients the importance of complying with all parenting orders. If for any reason such orders become unworkable, please call us to discuss the situation immediately so that all your options can be considered without risking the serious consequences of a breach.

You can read the Snell & Snell case here.

You may also like to read our blog regarding contravention applications and costs.

Do you need assistance with a parenting or other family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.


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