Breach of orders: The recently heard appeal case of Carrington & Gunby (court-appointed pseudonyms) dealt with whether a judge had erred in finding that a father did not have a reasonable excuse for withholding a child in contravention of parenting orders. Under the Family Law Act provisions relating to reasonable excuse, in defending against a contravention allegation using the grounds of protecting a child from harm, a person has to prove both that they had reasonable grounds for retaining the child (in breach of orders) and also that the retention period wasn’t longer than was “necessary” to protect the child. In this case the appeal court found no errors by the primary judge and the case was dismissed. Let’s take a closer look at this case.
The case contained allegations of family violence, namely that a mother’s new partner had harmed a 12 year old child. This was the basis of the child’s father refusing to return the child to the mother’s household, in breach of orders.
The parents had made the final parenting orders by consent back in 2013, with the child living with the mother and the parents equally sharing parental responsibility. The father had been due to return the child to the mother in June last year, but did not do so after he “alleged that the mother’s partner had assaulted the child by throwing him onto the kitchen floor and had verbally assaulted and belittled the child”.
The mother filed a contravention application in early July and the case was heard at the end of September, with the father retaining the child up until the time of the hearing.
But at the hearing, the primary judge did not accept that the father had proven he had a reasonable excuse. The judge found the contravention to fall into the “more serious” category and the father was then required to enter into a 12 month good behaviour bond. The child was returned to the mother.
In this case the father had kept the child for a period of three months, including after a police investigation had concluded and found no evidence of abuse. After the complaint was made to police about possible risk to the child in the home, the police duly investigated. No charges were laid and there was no further investigation or police involvement.
The father however raised two issues in his affidavit, saying the child had reported physical and psychological abuse by both the mother and mother’s partner, and that the mother was using “coercive techniques to silence the child”.
However, crucially, the father did not give the court any evidence in regard to these allegations, despite being “urged by the court” to do so and “invited to expand” by providing evidence from any source he had. Despite the father claiming the child had made the allegations, the father was apparently unable to report or repeat those matters or set out any complaints the child ostensibly made to him.
“When given an opportunity to expand upon…matters in evidence, the father declined to do so. The reports suggest that [Police] may have conducted an interview. No evidence was presented in that regard. The report suggested that the police have had some other involvement or engagement and may have taken a statement and/or sought evidence from other parties other than the child. The father did not present that evidence.”
“The father did not take up the offer to give evidence as to his belief on 30 June 2019 that he needed to act to protect the child’s safety and how he arrived at that belief. For example, his belief could have been based on things that the child told him or the Police but, if so, what were those things? The father did not say.”
Ultimately, the primary judge’s finding was that the father’s evidence “did not proceed beyond the general observation and assertion that the child was at risk”. The court also looked to evidence from a Family Consultant:
“The Family Consultant recorded…that both the mother and the father “seemed open” to the child returning to the mother on 11 August 2019 and to an injunction being made restraining the mother from leaving the child alone with her partner. That is hardly consistent with the father holding the view that there was such a risk of harm to the child that Court orders should not be complied with and that the child should continue to be retained by him indefinitely without being able to see the mother.”
It’s obviously concerning that the father’s beliefs in the child being at risk come from what he alleges are statements made by the child. However, one must have faith that the police do their job and that their investigations did not find abuse had occurred.
How long could the father claim to have reasonable grounds?
The problem with the father’s case was also in the timing. He claimed to have a reasonable excuse to hold the child for the length of time he did, in breach of orders, but this didn’t match up with evidence regarding when alleged events occurred, investigations were conducted or the court proceedings took place.
So while he could have been justified in claiming he retained the child up to the time the police had investigated the matter, it was hard for him to justify retaining the child right up until the contravention hearing three months later. This was especially so since he did not use that time to apply to vary the parenting orders, or to “garner the evidence necessary to support the allegation that he makes and the basis upon which he says the child is at risk….It is not simply a matter where the father is able to do nothing.”
“The father had continued to retain the child up to the time of the hearing before the primary judge, despite the outcome of the Police investigation, the outcome of the Child Inclusive Conference and without bringing any application to vary the existing parenting orders.”
He also did not subpoena police records of interview. In other words, he did nothing other than wait for the contravention hearing, and when that occurred, he supplied no evidence in support of his allegations.
The appeal judges agreed that the primary judge had not erred in arriving at that conclusion.
The appeal judges also did not find any error in the primary judge’s reasoning that the contravention fell into the category of “more serious breach”, as it had been a continued breach for more than 90 days duration.
The transcript issue
There’s another aspect to this case that is worth mentioning. When the father filed his appeal, he was directed by the court to obtain and file a digital copy of those parts of the original hearing that he considered relevant to his appeal. However, he did not obtain a copy and instead informed the Appeals Registrar that he would no longer be relying on the transcript.
This meant the appeal judges had to consider the appeal without the benefit of a transcript of the original proceedings. As a result they noted they were limited to relying on the primary judge’s description of the proceedings that were set out in the primary judge’s reasons for judgment.
It’s unknown whether this would have made any material difference to the father’s appeal, but it would seem that it would always be a better choice to go back to a transcript of proceedings than to rely on a summarised version of events contained in written reasons for judgment.
You may like to read our previous blog on the subject of court transcripts.
What are the takeaways?
- If you intend to use “reasonable excuse” to defend a contravention of orders, make sure you can prove that you had a reasonable excuse with solid evidence, not just assertions or beliefs.
- If you allege there is abuse occurring in the other parent’s home, try to think of alternative ways that the child or children can still spend time with that other parent in a way that would protect them from the risk of abuse.
- If you are appealing a matter and are directed to provide a transcript of your hearing, it’s in your best interests to do so.
You can read this case in full here.
If you would like assistance with a parenting matter or require any other family law advice, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
