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:
- 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.
- 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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