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!

NEED HELP WITH YOUR LEGAL MATTER?

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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.We will also guide you through the court process so you can be a confident self representer.

Our low cost service has helped hundreds of people Australia wide over the past 6 years.
Led by our experienced family lawyer, you can be sure your matter will receive the very best help. 

With our low costs… we take the fee stress out of your matter!

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WHAT IS SHARED PARENTAL RESPONSIBILITY?

There’s a lot of confusion out there when it comes to understanding what all the different expressions about parenting mean. The one that confuses people the most is shared parental responsibility.
Firstly, it does not necessarily mean shared time parenting… like when dad gets the kids for week 1 and mum gets them in week 2.
Shared parental responsibility relates to something completely different.

Under the Family Law Act 1975, there is a presumption that both parents will have an equal parental responsibility—that is, they will both have a role in making decisions about major long-term issues such as where a child goes to school or major health issues such as potential surgery. It can also cover things like overseas travel. Shared parental means that parents need to communicate with each other and where one parent has concerns, to work through those before a joint decision is made about something important to the child’s future.
The important thing to note is shared parental isn’t a ‘give in’ for all parents. For example, the presumption does NOT apply if the parent engaged in abuse of the child or family violence. The presumption also does not apply if it is not in “the best interests of the child”.
And what does that mean? I often tell self representers to try and understand what the law says about the best interests of a child by going to the famous section of the Family Law Act known as 60CC.
Here you will find all the things that the court takes into consideration when needing to make a decision about what is in the best interests of the child. I encourage you to read it …and assure you it won’t put you to sleep!

BUT DOESN’T SHARED PARENTAL RESPONSIBILITY MEAN EQUAL TIME?

Shared parental responsibility is not the same as equal time parenting. Parents will spend equal time with a child only where they can agree to that arrangement or where a court finds that equal time is in the best interests of the child and is the most suitable arrangement.
If parents don’t agree to equal time parenting, and it’s not uncommon, the court might need to ask for some help in making a decision by asking for what is known as a family consultant report. This involves a social worker or more often a psychologist over the course of a half day, interviewing both parents alone and with the child or children. The children are also interviewed alone depending on their age. The consultant then writes a report based on those rather quick observations and that is where the recommendations about co-parenting sometimes go pear shaped.

These reports can be really hit and miss, with one parent feeling they have been portrayed by the family consultant as an inferior parent. Problem is they carry a lot of weight as they are court appointed reports. Where these reports are messy or unfair I often assist self-representers with applications to the court to redress this.

SO WHAT IS A PRIMARY CARER?

Post separation, it is not uncommon for one parent to do more “hands on” parenting than the other. By this I mean the child or children may spend the bulk of the week at one parent’s home and maybe spend weekends with the other parent. (Many variations on this folks.) So the parent who is doing more of that hands on parenting is called the primary carer. In the bulk of cases it is the mother although things are changing guys. Here the parent who isn’t the primary carer is sometimes referred to as the non custodial parent.

However, don’t forget that a primary carer parent still needs to follow the assumption of shared parental responsibility. Time and time again we find some primary carer parents forget that and if left unaddressed can lead to the other parent feeling excluded and alienated. It can also lead that parent to seek orders from the court to address that imbalance. We are often putting together these applications with much success.

NEED LOW COST HELP?
If you’re needing help with getting the parenting balance right and you don’t want to go down the pathway of selling your kidney to pay for a lawyer, we would be happy to assist with any application you might wish to make to the court. Drop our fantastic paralegal a line at and find out how easy it can be to self represent with low cost legal assistance from our lawyers on your documents, and preparation for court.
It’s something we’ve become very good at over the last 10 years.

2019 FAMILY COURT HIGHLIGHTS – PARENTING

Each year the Federal Circuit Court and the Family Court of Australia express opinions and even change their minds on how key decisions are made about family law issues before the court. How the Judges interpret the Family Law Act with these new or changes positions is called “common law” and it can be just as powerful as the legislation.

 Our resident legal eagle Elroy has been attending courts all over the country (no airfares needed as he already has wings) to bring you this update on some of the major decisions relating to children this year. In our follow up he report on major decisions relating to property and spousal maintenance.
Over to you Elroy…

Hey Eaglets, here are the big things in Fed circuit and Family court that the Judges made decisions that broke new ground in 2019.
 Now listen I had to sit through hours of court boredom without one squawk to get these little gems so I hopes ya enjoy them!
Off we go…


JUNE 2019

Taking time to make the best decision!
Court grants adjournment of trial for 12 months to permit assessment of children’s time with father away from “artificial environment” of contact centre –
Judge Harman considered an application by the parents of children of 7 and 4 years (supported by the ICL) to adjourn a two day trial and make interim, instead of final parenting orders, despite the fact that the case had been before the Court for three years.
 As I say – finality is good but justice is better!

JULY 2019

When you ain’t daddy
Husband discovered that he was not child’s biological father after separation when child was 13 months of age – His “friendly relationship” (which child enjoyed) allowed to continue despite mother’s strong opposition – Order for husband to spend four hours with the child every six weeks.
Now that’s a dad with commitment!

Overseas travel
Suspension of interim injunction against overseas travel and of watch list order was erroneous as the parties’ subsequent final consent order had the effect of discharging all interim orders – Leave to travel overseas would require fresh proceedings as consent order was silent as to overseas travel

AUGUST 2019
Camera Recordings
Mother’s secretly taken video recordings of interaction with father at hand overs were admissible as mother had a lawful interest in her personal safety – Her secretly taken audio recordings of private conversations between father and the children held to be inadmissible

In Coulter & Coulter, Judge Heffernan heard the father’s application to exclude video recordings made secretly by the mother of his attendance at her home for hand overs and two audio recordings of conversations between him and the children, taken via a KIK messenger app on the children’s iPods. 
Threshold hearing on Rice & Asplund – Mother’s evidence of improvement in her mental health failed to justify reconsideration of a parenting order which had turned not on whether or not the mother had a mental illness, but on a finding that her fixed beliefs posed a risk of harm to the child.

When granny is crook

Interim order permitting relocation with children from Melbourne to Sydney to enable mother to be with terminally ill maternal grandmother.

SEPTEMBER 2019
Paying child support…from when?
Declaration of paternity under s 106A of the Child Support (Assessment) Act granted to mother four years after refusal of her application for child support assessment – Judged erred by leaving commencement of liability to the child support registrar – Act provides that such a declaration operates retrospectively to when the assessment application was made
In Calafiore & Netia the Full Court (Judges Kent, Tree & Hogan) considered a case where the parties’ only child was born after separation. The mother had lodged an application for child support assessment in May 2013 but the father was not named on the birth certificate. He disputed paternity so the child support registrar refused the mother’s application.

Watch lists
Judge erred by restraining international travel and placing children’s names on airport watch list without considering relevant matters as set out by the Full Court in Line & Line [1996].

OCTOBER 2019
Relocation without consent?

Unilateral relocation of mother to a town 2 and a half hours’ drive away – Review of registrar’s refusal to exempt father’s filing of a family dispute resolution certificate on the ground of urgency – No evidence of a genuine attempt to resolve dispute – Discussion of when a unilateral relocation is “urgent” for the purpose of s 60I(9).

NOVEMBER 2019
Daddy didn’t get a 60i certificate – oops!
Father applied for parenting order without complying with s 60I (family dispute resolution) – No exception applicable under subsection (9) – On appeal by mother the FCC’s orders including order for parties to attend conference with family consultant pursuant to s 11F were set aside – Father’s application dismissed

In Ellwood & Ravenhill [2019] FamCAFC 153 (6 September 2019) Kent J (sitting in the appellate jurisdiction of the Family Court of Australia) heard the mother’s appeal from orders made on the application of the father in respect of the parties’ daughter (17) and son (nearly 16). In her response, the mother applied for dismissal of application as s 60I had not been complied with, arguing that the Court lacked jurisdiction.`

Fighting limited supervised time
Father diagnosed with delusional disorder by court-appointed single expert – Leave granted for father to adduce evidence from adversarial expert – Father’s wish to adduce other expert evidence to counter evidence that would otherwise lead to his having limited supervised time or no time with the children amounted to a “special reason” for leave pursuant to FLR 15.49(2)(c)

DECEMBER 2019
A history of parental conflict
Father’s contravention application was met by mother’s application for variation of parenting order – Adjournment of contravention application for 16 weeks – “Widely held view” that contravention applications must be heard before any other proceedings has not applied since introduction of Division 13A of Part VII –
Best interests of children paramount – and don’t we know it!

In Maddax & Danner [2019] Judge Murphy J (sitting in the appellate jurisdiction of the Family Court of Australia) heard the father’s appeal against Judge Turner’s adjournment of his contravention application where a family report was ordered in respect of the parties’ child now aged nine, the mother having cross-applied for variation of a parenting order made in 2016.

So that’s a wrap for parenting eaglets.
I’ll be feathering my nest and serving up the highlights of the property fights next week but till then this eagle has landed!