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Family Law

Contravention of parenting orders sees mother face penalties

By February 29, 2016No Comments

By Gianna Huesch

Sending an abusive text message to her former partner, as well as failing to comply with contact requirements relating to a 10 year old child, have landed an Adelaide mother in trouble with the law. Disputes over parenting issues, including the administration of ADHD medication, also led to alleged contraventions of the parenting orders made between the former couple. However, the mother was not found to have contravened the orders in relation to these issues as they were either unproven or the mother was found to have “reasonable excuses” for the breaches.

The recent judgment handed down in the Family Court dealt with a situation where the mother and father had equal shared parental responsibility, while the child lived with the mother and spent significant and substantial time with the father. The father had filed Applications for Contravention with the Court listing numerous contraventions. In the end, the judge found three counts were proven without the mother having reasonable excuse for the breaches.

In the case, the mother had refused to comply with access arrangements that had been agreed in final parenting orders—both in relation to physical time with the child and telephone communications. She had further been accused of breaching orders in failing to communicate with her ex-partner in a courteous and respectful manner, thanks to her sending the father an abusive text message, in which she said she “prayed every night that he would die a horrible death”. The mother had also listed the father’s phone number in her phone under the contact name “robbed my life”, which it was argued the child could potentially have seen, given the mother’s phone was used for the child’s calls with the father. While the court found that the mother had breached the requirement to be courteous and respectful, on the latter count the judge was unable to find that the child did in fact see the mother’s phone contact name and as such, that count was not proven, though the judge noted the mother’s “immature conduct” in this regard.

Also in dispute were a number of medical issues. One of the major conflicts between the parents was the extent to which the child should be medicated for Attention Deficit Hyperactivity Disorder (ADHD). The mother considered that administering the medicine methylphenidate (known under the brand names Ritalin and Concerta) was necessary to stabilise the child’s oppositional behaviour. The father did not agree and felt the child’s behavioural issues were a result of differing parenting styles between the parents.

The alleged contravention in regard to the ADHD medication resulted from the mother having obtained a prescription from the child’s paediatrician for ADHD medicine at an “increased dosage” without informing the father. In court, however, it was shown that the new prescription had changed the brand of the medication from Ritalin (a fast acting form of the drug) to Concerta (a slow-release form). Arguments over levels of the active ingredient were dismissed due to lack of expert evidence provided by the father, however the judge agreed that there had essentially been a change in type of medication administered to the child—from fast-acting to slow-release–and as such a breach had occurred. However, he found that the mothers belief that the active ingredient was the same in effect meant she had shown “reasonable excuse” as defined under the Family Law Act.

The father had also claimed the mother had breached orders in not informing him of all of the child’s appointments with the paediatrician but the judge found the order had not been breached.

At issue also was the fact that the mother took the child for dental work at hospital without informing the father that the child was to have a general anaesthetic. While the judge decided that joint responsibility for major decisions could include such out of the ordinary dental treatment, he said the mother had the “reasonable excuse” that she wasn’t aware at the time she arrived at hospital that a general anaesthetic would be necessary, and the father had not proven that she had had such advance knowledge.

It was ultimately the mother’s non-compliance with access and communication orders which was most damaging. The mother was unable to convince the court that she had “reasonable excuse” for not following the parenting orders arrangements. The judge found the mother’s evidence on these issues unimpressive and found her to be resistant to ongoing compliance.

The mother now faces penalties which, depending on the sentencing submissions, may include: the court orders being varied, compensating the father for time lost with the child, being ordered to attend a post-separation parenting program, having to pay the father’s legal costs, having to pay a fine, being required to enter into a bond, participating in community service, and even imprisonment.

Please bear in mind the potential penalties for even the sending of a single abusive text message! We also cannot stress enough the importance of complying with all parenting orders. If for any reason such orders become unworkable, please discuss the situation with us immediately so that all your options can be considered, without risking the serious consequences of a breach. Contact Cristina Huesch or one of our solicitors here at Alliance Family Law on (02) 6223 2400.

(Source: http://www.austlii.edu.au/au/cases/cth/FamCA/2015/40.html)

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