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“Petty and Unwarranted" not all contraventions of Orders should be taken to court

Wednesday 15th July 2020

By: Helen Mulvaney

This Judgment was in relation to a Contravention Application brought by a Father against the Mother, alleging a number of breaches of Final Parenting Orders made in March 2019.

The circumstances of this case were that the Mother and the 11 year old child of the relationship lived overseas. The Father lived in Australia. The Father's Application was that the Mother contravened the Orders by failing to facilitate telephone contact with the Father without any reasonable excuse and also failed to give 60 days' notice of child's proposed international travel from the country where they lived and to another country for a weekend. The notification of travel was only provided by the Mother two hours before departure despite having obtained a visa for travel two weeks earlier and Orders providing that the Father be notified. In this instance the Court found that the Mother had contravened that Orders in relation to not providing the requisite notice of travel without a reasonable excuse and had also contravened the Orders not ensuring the child was available for telephone contact.

There were other Contravention Applications made by the Father but they were dismissed.

Under the Family Law Act, the parent who it is alleged contravened the Orders, need to demonstrate a reasonable excuse for having contravened the Orders, and the Court is entitled to impose a sanction on the parent contravening the Orders if its proved that there was no reasonable excuse. A reasonable excuse is where there is a concern for the child's safety and wellbeing. In this instance, the Judge found that the Mother had contravened the Orders without reasonable excuse in failing to provide required notice for travel. However, the Judge decided not to impose the sanction as the Application by the Father was "petty and unwarranted".  As with any family law matters the Judge has a wide discretion in the determination made. The Judge also found that the Mother had contravened the Orders without reasonable excuse by failing to ensure the child was made available to communicate with the Father on one occasion pursuant to the Orders however, again the Judge decided not to impose a sanction in circumstances where the child told the Mother that the Father had not called her and she took steps to remedy that. The Judge ordered costs against the Father because in her view the Father was unsuccessful in his case in that not only were most of the other alleged contraventions dismissed but the two that were established did not attract a sanction against the Mother or variation of the original Orders.

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