Case Note: Contravention Parenting Order

Summary of Facts: contravention of parenting orders, whether there was a reasonable excuse for withholding the child, whether it was necessary to protect the safety of the child and there was evidence of risk of harm

Carrington & Gunby [2020] FamCAFC 117

In this case, there was a parenting order for the child to reside with the mother and spend every alternate weekend with the father. The father failed to return the child as he stated the child was abused by the step-father in the care of the mother. On a contravention application for breaching the court order, the court determined that the father did not show that the child was at risk in the care of the mother and was given a bond to be of good behaviour and comply with the order.

Contravention Parenting Order

The father then appealed this decision to the higher court on the basis that the judge made the wrong decision in finding that he did not present evidence which would cause the Court to find that he had a reasonable excuse for breaching the order. He also argued that the judge gave more weight to removing the child from school than to the risk of harm.

The mother gave evidence that the police had investigated the matter and that there were no charges laid. The father gave evidence that the child had disclosed the abuse to him but did not provide great detail in relation to that. These allegations were contained in the father's Notice of Child Abuse, Family Violence or Risk of Family Violence however the court determined that this was only evidence of allegations, not the actual act itself.

A Child Inclusive Conference was conducted and the child stated that the step-father threatened him, grabbed him and pushed him. The report also noted that the father was prepared to return the child if the mother did not leave the child alone with her partner and made the assertion that it was not consistent with the need to withhold the child. The report writer did not note any concerns for risks to the child. The court ruled that this report was evidence of an assault.

Despite this, the court ultimately determined that there was no evidence that the father withheld the child as a result of a disclosure from the child at that time. The determined that the father needed to demonstrate that there was enough evidence to justify the period of time which the child was retained (being from June until the hearing in September) however he did not do that. The court also determined that placing weight on the decision to withhold the child from school did not effect the primary decision and was therefore irrelevant.

The Lesson To Learn: the court takes a contravention of parenting orders very seriously and requires significant evidence to show that there was reasonable excuse in not complying with the order. When there is a disclosure of abuse, the party breaching the order needs to ensure that they only contravene as long as necessary and that they are taking that action as a direct result of evidence provided to them.

We are experienced in defending and prosecuting contravention of court orders. Contact us for a obligation-free discussion about your case.

This information does not constitute legal advice. You should consult with a lawyer to obtain independent legal advice relevant to your situation.

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