Children – Contravention – Mother’s “tit-for-tat” withholding of child to make-up for father’s earlier non-compliance is not a “reasonable excuse”
In Bircher [2022] FedCFamC1A 59 (11 May 2022) the Full Court (Aldridge, Bennett & Howard JJ) considered a decision of Hogan J where the Court found that the mother had contravened parenting orders in relation to a 13 year old child “C” on three occasions without reasonable excuse.
The mother contravened by not providing the child to the father during the school holidays; not making the child available for another period; and taking the child to the dentist and optometrist where the orders restrained her from taking the children to medical and allied health appointments without the consent of the father.
The mother appealed, arguing that:
i) the father had withheld the child during her holiday time, such that she was entitled to make up time;
ii) the father was not attending to his responsibility for the children’s health, therefore the mother attended to the health concerns ([9]).
The Full Court said (from [22]):
“Whilst it may have been the intention of the parenting orders, in a general sense, to provide for the parties to share the school holiday period, it is necessary to consider the actual wording of the parenting orders when considering a contravention application. Order 4 of the parenting orders provided for C to spend the entirety of the second half of the December 2020/January 2021 holidays with the father. …
[23] It was agreed between the mother and the father in writing that the first half of the school holidays ended, and the second half of the school holidays began, on 1 January 2021. It is clear that the mother breached the terms of this order.
[24] The mother’s defence is that the father nonetheless had C reside with him for an aggregate period equivalent to one half of the holidays even if he did not have the precise days provided for in the parenting order. At [11], the primary judge discusses whether the mother’s allegation that the father withholding C from her for the first week of the first half of school holidays, was a reasonable excuse for the mother contravening the parenting order. The primary judge concluded that it was not.
[25] Whether the father’s retention of C for the first week of the … school holidays was appropriate is attended with some doubt ( … )
[26] Section 70NAE(1) of the Act provides an inclusive definition of the phrase ‘reasonable excuse’. In Childers and Leslie [2008] FamCAFC 5, Warnick J confirmed that the circumstances described in s 70NAE(1) of the Act are not the only circumstances in which reasonable excuse may be found. However, even if the father contravened Order 4 of the parenting orders, by retaining C … that lack of compliance and potential contravention of the orders does not entitle the mother, on the facts of this case, to over-hold C as she did … If the mother alleges non-compliance with, or contravention of, an order, by the father she may invoke the court’s powers under Pt VII Div 13A of the Act … by making an application … It is not for one party to take these matters into their own hands and engage in self-help.
[27] It is conceivable that a reasonable excuse may involve a reasonable belief held by one party concerning the effect of the other party’s failure to comply with an order. However, on the facts of this case, we are not persuaded that it was open to the mother to over-hold C and then claim that time as compensation for a previous wrongdoing on the part of the father. To accept such an argument would lose sight of the fact that parenting orders regulate the actions of parents for the benefit, protection and security of children. Viewed from the perspective of the child, the father’s actions deprived C of the company of her brothers and spending the first week of school holidays in the mother’s household. Then, as if that was not unfortunate enough, the consequence of the mother’s action was to replicate that situation in relation to the first week of the holiday period to which the father was entitled to have the children reside with him. Superficially, it was a tit-for-tat exercise as between the parents. In substance, however, the disruption and deprivation was doubled for C and would also have impacted her and her brothers, the three people whose interests the parenting orders are designed to protect and who are innocent of wrongdoing including non-compliance with, or contravention of, orders. On a more general level, self-help is not open to citizens when they believe another citizen has breached a court order or legal rule: the remedy always lies in an application to the courts who adjudicate upon such issues according to law.”
The Full Court continued (from [58]):
“It is difficult to accept that any reasonable person would not see a dentist as within the category of at least an ‘allied health professional’, if not a ‘medical practitioner’. …
( … )
[62] The case Gaunt and Gaunt [1978] FamCA 97 in the Full Court of the Family Court of Australia (as it was then known) considered whether a parent, who does not agree with the court’s decision about access, can defy the access order based on his or her genuine belief that to allow the order to operate would be contrary to the welfare of the child. The Full Court stated …
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.”
The appeal was dismissed.