Sunday, 20 July 2008

Federal Magistrates Court case- when not to bring a contravention application, travel overseas

In the recent Federal Magistrates Court case of Ryde and Raymond, there were two issues before the court- the father's contravention application because the mother had not allowed the 7 year old daughter A to go with the father during his time, and the mother's application to take A to Greece for a family wedding in which the mother was a bridesmaid and the child a flower girl.

When not to bring a contravention application

When things go off the rails, so that, typically, dad is not seeing his kids, often the instinctive reaction is to bring a contravention application, to set matters straight, possibly punish mum and ensure that time between dad and the kids starts again.

When matters get ugly, sometimes contravention applications are NOT the way to go and other options ought to be thought of first:
- counselling/therapy for all concerned. In the hands of a good therapist this can be very stressful and challenging, but a lot less so than going to court, and hopefully deals with the underlying issues, so that everyone can move into "the sunlit uplands of freedom" to quote Churchill
- variation on a theme- go for a family report. This is assuming both parties are able to pay for one- but a good family report writer can see what is wrong and what is right and recommend outcomes.
-bring an application to vary the existing orders. This may also mean the appointment of a family report writer and/or the appointment of an independent children's lawyer.

The father in this case did none of those, but brought his contravention application. Some of the counts were dismissed and on others the mother was found to have a reasonable excuse. What is clear is that the parties were at war with each other and that the father on one intended changeover grabbed the mother's sunglasses off her head, and on other occasions sent the mother a series of what can only be described as abusive SMS's.

On various occasions the mother brought A to changeover, when it did not happen, but an argument between the parents in front of A did. Federal Magistrate Riley was critical of the mother for exposing A to that conflict.

Of course the difficulty for the mother was that if she did not turn up, then that in itself might be the basis of a contravention application.

The other standout was what the mother had not done- she had not obtained a domestic violence order or equivalent. From the contents of the text messages she would have had ample grounds. This may in turn have allowed her to obtain a 21 day freeze of the then order at the time of obtaining a temporary protection order, under s.68R of the Family Law Act, giving her time for a break for A, and allowing her time to get before the Federal Magistrates Court.

Trip to Greece

The father, in a petty way, refused to agree to the trip because he wanted to impose on the mother the same conditions she had imposed when he had planned to go to Fiji some years before. Riley FM allowed the trip, but on the usual conditions of money being put up as security and A's passport being held securely on return.

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