Reasonable Excuse? Prove it

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In parenting cases where Orders have been made about the time children spend with a parent (or other person), great care needs to be taken in drafting the Orders to ensure that each party understands what they are agreeing to. Parenting Orders create obligations upon each party and there are serious consequences if a person is found to have contravened the terms of a parenting Order (and third parties who obstruct or assist in the breach of Parenting Orders can also face a Contravention application and serious penalties if the breach is established).

One of the benefits of a Parenting Order over a Parenting Plan is the enforceability of the Orders: an aggrieved person can bring a Contravention Application and assert that the other party has contravened the Order without reasonable excuse.

The person claiming they had a reasonable excuse must establish that in Court. It is not always straight forward or easy. In a recent decision in the Federal Circuit Court (Cartland vs Cartland [2014]) Judge Terry found that Ms Cartland had breached certain Parenting Orders and that she did not have a reasonable excuse for doing so.

The father’s evidence was that his children had begun spending time with him in accordance with the Orders and that the children’s visits with him between early March and late April 2014 had been happy and they engaged readily with him at changeovers and during their time together.

However, from the beginning of May 2014 the children did not spend time with the father in accordance with the Orders, as the children (aged 11 & 12) had said at changeover, in their mother’s presence, that they did not want to spend time with him. The children’s comment’s were usually delivered from the backseat of the mother’s parked car, through a partly wound down passenger window. The comments included:

“We don’t feel like seeing you.”
“We’re not going.”
“We’re not coming tomorrow.”
“We are not going to come.”
“We don’t want to come!”

The children did not leave the car. The mother, on each occasion, then closed the window (or permitted the children to do so) and drove off without any comment or engagement herself either, to the children or with their father.

The Judge was very critical of the mother and her conduct. The Judge found that the mother made no reasonable attempt to comply with the Orders. Her conduct in not speaking with or engaging the father and her silent acceptance (and tacit encouragement) of the children’s refusal and conduct was criticised by the Judge. The Judge said “the mother’s behaviour at changeover… sent a clear message to the children that it was all right for them to remain in the car and refuse to go with the father. It was the absolute reverse of what was required to do to ensure compliance with the Orders.”

The Judge considered relevant Full Court decisions about such matters and endorsed the view that there is an obligation upon the “custodial parent” to take reasonable steps to make the child available for “access”. It is not enough to take the child to the point of changeover and do no more, then argue that if the child doesn’t go, then all his or her obligations are met by merely “standing by”.

The mother in this case could have and should have done something, “by words and actions”, to have encouraged the children to go with their father. The Judge was critical of the mother for what she considered to be her failure to “take on the role of a parent and tell them that there were orders in place and that they would be going”. The Judge also expressed some disquiet that the mother “was behind” what was happening between the children and their attitude to their father.

The mother was placed on a bond of $1000 on condition that she be of good behaviour for 12 months.

Di Simpson is a Partner of DDCS Lawyers, 18 Kendall Lane, NewActon, Canberra ACT 2601 and can be contacted on (02) 6212 7600.

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