A breach of parenting orders is considered a very serious contravention in the Federal Circuit and Family Court of Australia (FCFCOA). The objects of the family law and its underlying principles are to ensure that a parent who is entitled to spend time with their child ought to be able to do so.
Failing to Comply with a Parenting Order
To succeed in a contravention application, section 70NAC of the Family Law Act 1975 (Cth.) provides that the applicant must prove the respondent has:
- intentionally failed to comply with the order; or
- made no reasonable attempt to comply with the order.
There are also provisions which catch third parties who intentionally prevent compliance with an order, or aid or abet a person to contravene an order.
Reasonable Excuse
Section 70NAC provides a defence of a “reasonable excuse” for failing to comply with a parenting order. The term “reasonable excuse” is defined in s 70NAE of the Act. The legislation however does not provide sufficient guidance as to what is a reasonable excuse and therefore case law must be reviewed to see how courts apply this in practice.
One of the leading cases on what is a “reasonable excuse” is Childers & Leslie [2008] FamCAFC 5. In that case a mother withheld a child as the child was ill and the father filed for a contravention a few days later. The Court ruled that for a person to have a reasonable excuse to withhold a child two conditions must be met in law:
- the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
- the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to.
Essentially, there is no list of circumstances in which a “reasonable excuse for contravening” an order may apply. The term “reasonable excuse” depends on the circumstances of the individual case in question, and the purpose to which the defence of “reasonable excuse” is to be applied as an exception. As is the case with so much of the family law, the matter will largely rely on the exercise of judicial discretion as to whether the defence will be successful or not. Significantly whether the parent believes that they are acting in the best interests of the child is irrelevant to such a finding because a party’s subjective view of the rights and wrongs of a decision cannot be relied on as a “reasonable excuse”.
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