Tuesday, 8 September 2009

Contravention of children's orders: Federal Magistrates Court

Federal Magistrate Altobelli recently summarised the postion of "reasonable excuse" in the Federal Magistrates Court case of Chilton and Chilton for those who breach children's orders.

The child lived with the mother and had been ordered to have time with the father. The issue was whether the mother had a reasonable excuse in contravening the orders.

Altobelli FM held that the mother did not have a reasonable excuse, stating:

The authorities make it quite clear that there was a clear obligation cast on
the mother to take reasonable steps to deliver the child in accordance with the
order: Stavros & Stavros (1984) FLC 91-562. The orders created positive obligations on her, requiring a genuine commitment to compliance, which is inconsistent with allowing the child to make his own decision about whether or not to have contact with his father: O'Brien & O'Brien [1992] FamCA 52; (1993) FLC 92-396. The respondent mother cannot claim that she sincerely believes that the order was contrary to the welfare of [X] as a reasonable excuse for contravening the order: Gaunt & Gaunt (1978) FLC 90-468.


Anonymous said...

After 8 years of contact with his two children my husband's ex-wife has decided not to bring the children for contact or allow them telephone contact,even though a court order stipulates 2 out of 3 weekends and half the school holidays. My husband's only option is to jump through the hoops of mediation first before he can file contravention orders with the family court. Because of the ongoing mediation it has now been four months where he has not seen or heard from his children. The next mediation is set for February 2010. Therefore at least 6 months without contact. This new system of mediation is ludicrous.

Matt in WA said...

After 5 years of not seeing my children on a regular basis the Family Court in WA has finally allowed a contravention hearing to proceed. Yes, there are many hoops to jump through and if it's that hard to get a trial, I wonder how hard it will be to get a guilty finding? We'll see...

Anonymous said...

$25K 12 months no contact with child daughter, all advise RE affidavits to be specific according to actions taken by mother on day in question, removing child from fathers car, calling police making false and misleading statements, mention day Magistrate chastises mother for not being fair. Hearing day Magistrate accepts as evidence 38 page deposition from mother full of so called "Child comment" court says not hearsay is admissible due to state of mind. 38 pages of irrelevant vexatious deposition, then Magistrate asks of respondent mother who contravened, "Is ther any question of child abuse?" ONLY asking the mother? Father, the applicant who had previously had child taken O/Seas wrongfully and this contravention is not asked anything at all. Learned person after interjection by applicant counsel says NO. Applicant father attempts to speak and is told to be quiet. $25K and walks out with altered orders almost same as what he paid $25K for 3 years previous.
At NO time was the DOCS certificate for "NO reasonable effort by a party (Mother) taken as evidence. Mediation is ludicrous and Magistrates are discriminatory.

Anonymous said...

Exactly. Divorce is a one sided argument if kids are involved. A woman asks for equal rights in a ll aspects of life ,except for family law. All a mother has to suggest is that she has reasonable fear and that is domestic violence. Once she claims that then the man has no rights and is guilty until proven innocent. And to prove yourself innocent is impossible if your former spouse is hell bent on making life hard for you. Sad reality is if no kids where involved then would the women keep making these false claims.i think not

Anonymous said...

I am a father of two children who I have live with me. In the 18 months since the original consent order was made my ex-wife absconded with the children within 8 weeks of the order. I initiated a recovery order and have the children back in my care. Between Feb 2012 and Aug 2012 we battled out an agreed consent order during which she relocated on three occassions from Tarago to Junee to Kings Canyon NT to her current location in Ayers Rock.
With reluctance I agreed to the Order the 1st contact eventually occurred in the September after a number of issues. The second contact was to be this Dec for 3 weeks. However the mother and Solicitor are advocating for a period of two weeks because the mother wishes to travel overseas in the 3rd week. The Solicitor wrote again yesterday stating her client had booked tickets and that I should reconsider for the sake of the children. This despite advising I have made arrangements in consideration of the current order. What do you do????????
I note legal aid are funding my ex-wife who has a full time job with no dependants living with her and has subsidised housing. Whilst I cant afford a solicitor. There is so much more but I desist.

Anonymous said...

I took my ex-wife to court thinking interim orders might calm things down e.g. whilst the children were in my care my 9 year old was being texted up to 25 times each day as well as being called my ex's sister and mother.

Unfortunately the interim orders have not worked and contact continues unabated hence a contravention application is required. Final orders currently being negotiated but the application is required so as to set bar going forward.

Daryl D. said...

Good morning, my son has had the Court Ordered contact with his daughter stopped several times by his ex and is looking to pursue the issue of costs in relation to the continual use of the courts to get access to his daughter. Can you please advise if there are any case profiles where costs have been awarded to either party under the FLA. Thank you