Ah “contravention applications”, I wish I had a dollar for every time a client wanted to file one due to their former spouse or partner’s failure to follow even the simplest of consent orders. The problem is you need to be careful in filing these applications because in a world where the courts are seemingly always time poor, if the contraventions you’re flagging aren’t serious ones, you may end up being the one who has to cough up the dollars.

Recently, in Adam & Tan (December 2019), Family Court Justice Carew heard an application from a father who was rather miffed that his former wife had breached consent orders that allowed him to have scheduled phone time with his kids. He also put in another application stating the wife had contravened consent orders by failing to provide the required notice of a forthcoming holiday that involved international travel. In this particular case, the mother and child lived outside of Australia so the phone contact was important to the dad. And while her Honour was happy to note the contraventions by the mother, she wasn’t going to push her and instead turned her hand to castigating the father for his contravention applications.
Her honour noted in the judgement:
“I have found that the mother contravened paragraph 34(b) of the primary order without reasonable excuse by failing to provide the required notice prior to travel. However, I do not intend to impose any sanction … The application by the father was, in my view, petty and unwarranted.”

And additionally Her Honour said of the missed telephone contact:

“I have found that the mother contravened paragraph 25 of the primary order without reasonable excuse on 2 June 2019 by failing to ensure the child was made available for the father’s communication. However, I do not intend to impose any sanction. The mother was told by the child that the father had not called her (although she was mistaken) and, upon becoming aware of the father’s difficulties with contacting the child, the mother has taken steps since 16 June 2019 to remedy the situation. The child now calls the father on Sundays … In my view this application was also petty and unwarranted.”

And here’s the kicker…
Her Honour then finished with:
“I consider that an order for costs against the father is warranted in the circumstances of this case. …The father has been at least substantially and arguably wholly unsuccessful in that not only were most of the alleged contraventions dismissed, the two that were established did not attract any sanction against the mother nor variation to the March 2019 order.
I have found the father’s conduct in relation to the proceedings to have been petty and unwarranted.

To rub salt into the wound, Her Honour ordered that the father pay $2,750.
Ouch!
So a couple of contraventions are proven but the person who flagged them cops the penalty. What could be going on here?
Maybe the law can give us a little guidance.

REASONABLE EXCUSES
When it comes to breaching consent orders the Family Law Act guides Judges as to which contraventions should be given more weight and which ones can be passed over because of what are called “reasonable excuses”.
Section 70NAE of the Act provides that guidance. Here, the following are considered reasonable excuses and with them the court must be satisfied that you should be excused because of your breach.

• The parent didn’t at the time of the contravention, understand the obligations imposed by the order.
• If a child didn’t stay with a non primary care parent during their agreed time because it was necessary to protect their or the respondent’s health or safety and that the time was not longer than necessary to ensure that protection.
• The above also can be used where it involves not delivering the child to the primary carer.
• Similarly, a reasonable excuse can also involve the child avoiding telephone or FaceTime contact with the non custodial parent if it is to protect the health and safety of the child.

But none of these seem to relate to our dad in Adam and Tan so I’ll take a little liberty here and imagine her Honour simply did not think his complaint about contraventions was significant enough to affect the best interests of the child. It is also important to note that the mother had gone to some effort to recompense dad for his lost phone contact.

EXAMPLES OF REASONABLE EXCUSES
Here’s a guide to what would be reasonable:

1. The parents have orders that their daughter lives with them for equal amounts of time. If she is ill for several weeks and her mother obtains medical certificates, the Court may still find there has been a contravention especially if the child is looked after by other people such as her grandparents while her mother is at work.
   
2. Where a car has broken down or there has been a car accident delaying a child being handed over to the other parent, the Court will accept this as a one off reasonable excuse as long as it is not used for delaying children spending time with the other parent for longer than necessary.
   
   

MEDIATE BEFORE YOU FILE – IT’S MANDATORY
The process is clear, if you have a complaint about your former better half about breaching consent orders, you need to seek out a good mediator and try and find solutions to your dilemmas BEFORE you file a contravention application.

Involving the court with borderline contraventions could result in you being the one punished while the one who contravenes gets off with a warning. That is an expensive day out in court!

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With people being encouraged to observe social distancing and isolation during the coronavirus outbreak, family lawyers are being asked how best to manage shared custody arrangements.

Key points:

• Family lawyers say parents still need to follow court orders amid the outbreak
• But they can still agree to vary them amid social distancing and isolation
• Parents are urged to put emotions aside and keep their children safe

Legal Aid NSW family law director Kylie Beckhouse said common questions included whether people needed to comply with court orders during the pandemic and how to manage changeovers if schools were to close.

She said people would still need to comply with court orders.

“Talk to the other party, and if you cannot talk to them, try and communicate via a third party to work out a sensible resolution,” Ms Beckhouse said.

“These are really stressful, unusual times and children are under enormous stress, and the best thing people can do right now is keep things as conflict-free as possible.

“Try and work it out with each other, or if they can’t work it out with each other, use a third party or a mediator.”

Family lawyer Rebecca Bunney said people might feel torn between breaching parenting orders and wanting to limit their children’s movements.

She said parents should try to have a combined approach to keeping the children away from crowds and older people.

Outbreak ‘not an excuse’ to cut another parent out

Ms Bunney said even if there were court orders in place, parents could still agree to vary the orders while social distancing and isolation was being encouraged.

“It is possible that people might use this opportunistically to deprive the other parent of time with their children,” she said.

“This is a public health emergency, this is not an excuse to start messing around with your parenting orders just because that is what you want to do.

“The advice to clients would be make sure the other parent is not missing out on time and they get make-up time, so if they miss two nights this week then say to them: ‘It is a credit, you will get to spend that time with them once this self-isolation is over.’

“They [should] get telephone calls with the children — FaceTime is a great option.

“It is not about cutting that other parent out, it is about keeping everyone safe.”

Parents self-isolating children may be shown sympathy

Ms Bunney said she believed in the event a parent contravened court orders, the court may take a sympathetic approach to those that wanted to isolate their children during the pandemic

“Any parent that is isolating their children due to health concerns should be making every effort possible to continue to allow the child to have a relationship with the other parent, even if it is not face to face,” she said.

“What I would be recommending to people is to put everything in an email, have everything in writing, set out your concerns really clearly and do your very best to have a sensible, practical discussion about this.

“If the matter then came before the court, you need to be able to show what you were thinking at the time and that you did your very best to communicate that to the other parent.”

Ms Bunney also urged people to put their emotions to one side.

“Do your very best to put all of your past hurt and concerns about your former partner to one side and really just focus on where is the best place for your children to be to have their movements limited as much as possible,” she said.

No increase in applications, WA Chief Judge says

In a statement, the Chief Judge of the Family Court of Western Australia said the court had not seen an increase in applications for parenting orders arising from concerns about COVID-19.

Chief Judge Gail Sutherland said it would be wrong and potentially confusing for the public if the Family Court were to produce general guidelines about any impact of concerns about COVID-19 on parenting cases.

“When the court is deciding a parenting dispute, the best interests of the child are the paramount consideration,” she said.

“In any case, the determination of those best interests can be multifaceted and complex and will depend on the individual circumstances of the particular family.

“Like all members of the public, parents with cases before the Family Court should pay careful attention to information and guidance provided by Government and the health authorities.”

The Family Court of Australia has responded to the COVID-19 pandemic by making changes to court operations to accommodate social distancing.

Urgent and priority trials including child-related and family violence matters will remain listed and will be conducted “in the safest manner possible”.
Non-urgent property-only trials may be adjourned, and non-urgent parenting trials will be given similar consideration at the discretion of the judge, while trials or hearings that can be done by telephone will be.

With thanks and acknowledgement to ABC.net.au

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Do you have an ex whose favorite pastime is bad-mouthing you? Take the high road!

Although most divorced people occasionally say something less than kind about their former spouse, some turn ex-bashing into an Olympic event. These are usually high-conflict individuals (HCIs) who defend against the pain of divorce by blaming their ex for everything. HCIs have distorted ways of thinking, and cannot see their part in problems. They need a target, and if you’re their ex, that’s you! Don’t expect them to ever change their behavior, and do develop strategies for deflecting their drama.

Dealing with the bad mouther

• Don’t defend yourself. When someone twists reality to spin outrageous, inflammatory tales about you, it’s natural to want to defend yourself. Resist the urge! You will just give your ex another opportunity to climb onto his or her self-righteous pedestal and tell you 97 more terrible things about yourself. Yes, your ex’s slanderous statements are hurtful, but they are distortions. The next time you’re tempted to defend yourself, repeat this mantra: “What my ex thinks about me is none of my business.”
• Use disarming statements. Politely decline your ex’s invitation to a verbal or email/text bloodbath by using disarming statements: “you may be right;” “I’ll think about that;” “I’m sorry you feel that way.” Your ex is expecting you to get upset. Responding in a calm, non-reactive fashion may seem like you’re “giving in,” but the opposite is true. You’re not agreeing with your ex; you’re taking your power back by ending a fight.
• Don’t match your ex’s intensity. Imagine that your ex is a toddler having a tantrum. What’s the best way to handle that situation? By having your own tantrum? Or remaining calm and setting limits? You don’t have to respond to every hostile text, email, or voice mail. Or, you can choose to respond by stating: “It sounds like you’re upset. I don’t think we’re going to have a productive conversation right now. When you’re done being angry, I’ll be happy to discuss this.” If your ex counters by slinging more barbs, hold your boundaries and don’t respond.
  
  

There are some situations where you may need to confront the bad-mouthing: your child’s school staff or doctors have been told you don’t have custody, and other parents are declining playdate invitations because they’ve been told you’re evil. Here are some sane ways to address the crazy.

• Don’t counter-attack your ex. Launching into an emotionally charged, detailed explanation of why your ex is actually the crazy one will confuse people, confirm their misguided notions about you, or make them feel pressured into choosing sides. Don’t do this!
• Present your side of the story calmly and factually. Pretend you’re a reporter; address the bad-mouthing by delivering facts to the contrary. If your ex has told school staff that you’re an unfit parent who lost child custody, show them the custody agreement. Give your contact info to medical staff so they know you exist and are an involved parent. Without going into a lot of details, tell parents of your child’s friends that your ex’s allegations are distorted or untrue and you’re sorry they’re being exposed to drama. Urge people to contact you directly if they have a question or concerns.
• Don’t get emotional. It’s natural to feel angry and upset when people say bad things about us. But if you comer across as volatile or capable of whatever your ex is saying about you, then people may believe what they’ve heard. You can’t control what others think, but you can control your own behaviors.
• Detach. Your ex’s comments and others’ faulty beliefs have nothing to do with your worth. They may not even have much to do with reality. Hitching your self-esteem to other people’s transient opinions will just make you miserable. Focus on being the best person you can be and let go of the need for approval.

Talking To Your Kids

If your children have bought into your ex’s propaganda, you need to address it. Pretending everything is fine is like pretending the elephant in the room isn’t really there. Your ex is attempting to damage your children’s relationship with you, and their ability to think critically. While you cannot stop your ex, you can do things to present your side of the story.

• Acknowledge the bad-mouthing. Name bad-mouthing as a problem but don’t respond with your own bad-mouthing, i.e., “your father’s a nightmare and is out for revenge.” Instead, acknowledge that your ex says bad things about you and focus on the impact on your kids: “What you’ve heard may have scared you, or made you angry.”
• Confront distortions with facts. Contrary to popular divorce wisdom, saying nothing won’t make the problem go away. Your ex is emotionally abusing your children by trying to damage their bond with you. The antidote to gas-lighting is presenting facts. For instance: “I arrived for visitation, but you weren’t there. I texted and called your mother, but she didn’t respond. If there’s an emergency and I’m not able to see you, I will always let you know and tell you when the next visit will be.”
• Teach your children self-agency. Your ex is trying to control what your kids think, so give them permission to think for themselves. Tell them to talk to you directly if they have concerns about you. Don’t pressure them to believe your side of the story; instead, let them know they have a right to their own feelings and opinions. Not only are you teaching your kids how to think independently, but you are also showing them that you’re safe to talk to.
  

Remember: what your ex says is a reflection of them, not you. You can choose not to take it personally. The best way to respond to bad-mouthing is to behave in ways that make you feel good about yourself.

NEED HELP WITH YOUR LEGAL MATTER?
Our team at The Legal Eagle love helping people who don’t need an expensive lawyer and want to get all their documents right for court. Whether it’s a parenting application, a divorce or a property matter we can assist with all your paperwork so that you only use a lawyer when it is absolutely necessary.
Our low cost service has helped hundreds of people Australia wide over the past 6 years.
We take the fee stress out of your matter!
For more information drop a line to our fabulous paralegal Abbey: