September 25, 2023

Contraventions: when is there a reasonable excuse?

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By Georgia Bishop, Lawyer

A justice of Division 1 of the Federal Circuit and Family Court of Australia recently found that a mother did not have a reasonable excuse for contravening final orders.

The background

The parties to the proceeding had two children, aged nine and six.

Initial proceedings commenced in the Federal Circuit Court of Australia (as it was formerly known as) in October 2017 before being transferred to the Family Court of Australia (as it was then) in February 2018.

Final orders were made on 4 August 2020 providing for the children to spend time with the father each alternate weekend during school term and for half of the school holidays commencing in 2021 in addition to provisions regarding Christmas and special occasions such as Father’s Day. In addition, the final orders set out an injunction restraining the parents from taking the children to any counsellor regarding sexual abuse allegations (which had been alleged during the proceedings at first instance by the mother) and from coaxing any disclosure of abuse from the children.

Between 27 June 2021 and 2 April 2022 (being the date the father filed the contravention application), the mother refused the children’s spend time with the father on 19 occasions and did not facilitate communication in any capacity. No spend time or communication continued until the hearing on 22 November 2022.

On 28 June 2021, it was alleged that the mother took one of the children to a counsellor in relation to the allegations of sexual abuse and for the purpose of coaxing the children to disclose that the father had sexually abused them.

In August 2022, the Department of Communities and Justice attended the mother’s house and stated the allegations of sexual abuse were not substantiated.

The rationale

The mother argued reasonable excuse pursuant to s 70NAE of the Family Law Act 1975 (Cth).

The Court at [53] referred to the Full Court of the Family Court of Australia’s decision of Guant and Guant (1978) FLC 90-468 at 77,398 (“Guant“) as follows:

The essential question is this- can a party who does not agree with a Court’s decision about access defy the order and then plead that in preventing access his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child? The question of the child’s welfare is, of course, the paramount consideration for the Court in determining the access question in the first place. To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the Court’s order or from the consequences of non-compliance would undermine the purpose and intentions of the Act.

……A party’s subjective view of the rights and wrongs of a decision cannot be relied on as “just cause or excuse” or “reasonable cause”.

In relation to allegations of sexual abuse, Her Honour observed at [94] that the authorities of Seller & Appleby [2017] FamCA 1142, Guant, and Fulton and Packer [2015] FamCA 286 “highlight that merely contravening orders because of a child disclosing alleged sexual abuse by the other parent is not a reasonable excuse. Further, having a genuine belief of the disclosure of sexual abuse made by a child is not reasonable excuse per se. The belief must be genuinely held and the belief is based on reasonable grounds.”

The Court cited the relevant law and determined the following two factor go towards establishing whether a belief is on reasonable grounds are:

  1. Has the alleging parent accepted the Court’s findings or the outcome of any investigation (at [95]); and
  2. Is the contravening party seeking to change the contravened order (at [96]).

The decision

Whilst the mother had not accepted the outcome of the Court nor department investigations (at [97]) but held a genuine belief that the father had sexually abused the children, the Court held such belief was not established by the allegations (at [103]).

The Court held that the mother had breached the final orders on 22 occasions by failing to facilitate the children’s spend time and audio-visual communication with the father and by failing to inform the father about matters pertaining to the children’s welfare.

Her Honour found, however, in relation to the counsellor appointment that, whilst the mother had made the appointment in relation to the allegations of sexual abuse without the father’s consent, there was no evidence that she took the child to see the counsellor.

The penalty

The question the Court asked was whether the mother had “behaved in a way that showed a serious disregard” of her obligations pursuant to the final orders.

While the mother had breached the orders for a lengthy period and was aware that investigations had ceased with no allegation of sexual abuse substantiated, the Court found the contravention was not a more serious breach as envisaged by the Act.

The Court ordered a good behaviour bond without surety and did not order make-up time due to the substantive lapse in spend time between the children and the father. The matter was otherwise adjourned for determination of whether the final orders should be varied.

Take away points
  • To avoid a similar situation, parties should endeavour to comply with Court orders. Lawyers should otherwise inform their clients of the potential consequences of non-compliance with Court orders.
  • The Court may consider non-compliance with the final orders because of a child disclosing alleged sexual abuse as insufficient to satisfy the requirements of reasonable excuse without other evidence to support non-compliance.
  • Following the making of final orders, any allegations of sexual abuse should be new, not related to finalised investigations, and significant in nature.

Peluso & Karle [2023] FedCFamC1F 87 (24 February 2023)