Contravention Series - Part 2 - Reasonable Excuse

What is reasonable excuse?

I am going to talk about it from through the lens of parenting Orders. That is the threshold that parties will need to satisfy to defend an contravention application being brought against them for alleged non compliance with a Federal Circuit and Family Court Order.

When an Order is made in parenting matters, the Court expects you to uphold your obligation as a parent to facilitate and encourage the relationship between the child and the other parent. If there are Orders made for a child to spend time with a parent, then the Court expects that you will not only ensure the child is available to spend the time but that you actively encourage them to do so. This applies even if the child is saying they don’t want to go. That is your obligation as a parent under time Orders.

A parent is taken to have contravene an Order, which has not been altered in some way by a parenting plan, if they:

1. Intentionally prevent compliance with the Order by a person who is bound by it;
2. Makes no reasonable attempt at all to comply with the Order;
3. Intentionally fails to comply with the Order;
4. Or aids and abets (or helps if you may) someone who is bound by the Order to contravene it.

Section 70NAC of the Family Law Act provide the defence of “reasonable excuse”. While the definition of reasonable excuse can be found at section 70NAE, it is the case law that is the most helpful in figuring out what might be considered reasonable excuse.

A Court Order can be contravened if there is a reasonable excuse for not complying with the Order. Now that is not, little Eddy who is 5 said he didn’t want to go. Some of the examples of what be deemed to be reasonable excuse are:

1. The person did not understand the obligations imposed by the Order;
2. The person believed that the actions which gave rise to the contravention were necessary to protect a child from harm;
3. The contravention was necessary to protect a person (for example the parent contravening the orders);
4. BUT in the above two reasons the contravention must not have lasted longer than necessary to protect the safety of the person or child.

Protecting a child from harm, might be determined a reasonable excuse for contravention.

So for example in the 2017 case of Osman & Bellis [2017] FCCA 1152 the Court held at the hearing of the contravention application brought by the Father, that the Mother in that case’s decision to withhold the children from the Father was reasonable in the circumstances. The Circumstances were that the Father had made threats against the child and had anger issues. In this case in particular the Father had threatened to drown the child, he referred to them in vulgar terms and he had uncontrolled anger outbursts. So although the Mother was technically in breach of the Orders, she demonstrated through actual evidence at the contravention hearing that she only did so because she had reasonable excuse.

No longer liking the Orders that have been made is not a reasonable excuse to contravene the Orders. Letting the children decide, is not reasonable excuse.

Another example is in the 2014 case of Cartland v Cartland. The Judge in that matter found that a Mother had breached Orders and she did not have a reasonable excuse to do so. This case involved children who were 11 & 12 at the time spending time with the Father in accordance with Orders that were made for about 2 months following the Orders. Then in the third month the Mother said that the children said to her at changeover that they did not want to go and spend time with the Father. It appeared in that case the Mother drove to the changeover but then the children, from the back seat of the Mother’s car through a window would say to the Father things such as “we are not coming tomorrow”, “we don’t want to come”, “we don’t feel like seeing you” etc. As you can imagine the Judge was very critical in that case of the Mother. The Judge in that case 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 Mother in that matter was placed on a bond of $1,000 on condition she be of good behaviour for 12 months.

I don’t intend to go through all the case law on reasonable excuse, there is an abundance of case all of which reiterate that what is reasonable excuse is always at the discretion of the Judicial Officer determining the matter. 

Some “reasonable excuse” cases are clear, usually the ones where there is an evidenced risk established to the safety of a child (be careful though even then, breaches can be found without reasonable excuse). Some cases are not so clear.

If you need advice about compliance with Orders then seek qualified legal advice. The consequences can be serious.

Want to know more about what a contrvention is and how to apply? Head back to my last article on that topic or head over to the The Divorce Collective Podcast and find it there!

Next week will be the last of the 3 part series where I will cover the consequences for contravening a Court Order.