Court Dismisses Mother’s Contravention Claims: Teenage Resistance and Reasonable Attempts Key in Humphrey v Humphrey (No 5)

🧾 Introduction

In Humphrey & Humphrey (No 5) [2025] FedCFamC1F 73, the Federal Circuit and Family Court of Australia grappled with a deeply contentious parenting dispute. A mother alleged ten contraventions by the father for failing to comply with parenting orders regarding their son. At the heart of the case was the son’s resistance to spending time with his mother, prompting a judicial balancing act between enforcing orders and recognising practical impossibilities. Ultimately, Justice Howard dismissed the mother’s application, finding the father had made reasonable attempts to comply under challenging circumstances.

🧾 Facts and Issues

🔹 Facts:

• The parties have two children: X (born 2007) and Z (born 2011).
• Orders made in 2022, 2024 and interim orders in September 2024 required the children to spend specific times with the mother.
• The mother alleged ten counts of contraventions, claiming the father failed to comply with these orders.
• The father consistently argued that the children, especially Z, refused to attend changeovers or stay with the mother.
• Strong influence from older sibling X and allegations of past mistreatment by the mother contributed to Z’s resistance.

🔹 Key Legal Issues:

1. Did the father intentionally fail to comply with the parenting orders?
2. Did the father make no reasonable attempt to comply?
3. If a contravention occurred, did the father have a “reasonable excuse” under section 70NAD of the Family Law Act 1975 (Cth)?

⚖️ IRAC Analysis

Issue:

Whether the father contravened court orders by failing to ensure the child spent time with the mother, and if so, whether he had a reasonable excuse.

Rule:

• Section 70NAC(1)(a) of the Family Law Act 1975 (Cth) provides that a person contravenes a parenting order if they intentionally fail to comply or make no reasonable attempt to comply.
• Section 70NAD allows for “reasonable excuses,” even beyond those explicitly listed.
• The court must consider the best interests of the child (Part VII of the Family Law Act).
• Stevenson & Hughes (1993) FLC 92-363: Passive non-compliance is insufficient; positive steps must be taken.
• Stamp v Stamp [2014] FCCA 1269: Sets out the two-stage approach to contravention – first, prove the breach, then assess reasonable excuse.
• Childers v Leslie (2008) 39 Fam LR 379: Warned against heavy-handed responses to technical breaches in high-conflict cases.

Application:

Justice Howard thoroughly examined all ten counts:

• For Counts 1–3 (Sept 2024 orders): The father was found to have taken reasonable steps, even amidst the child’s repeated absconding and distress.
• For Counts 4–5 (holiday time): The Court accepted the children's unwillingness and noted X’s significant influence over Z.
• For Count 6–7: Despite a partial stay and return by Z, the judge found the father encouraged compliance under extremely difficult emotional circumstances.
• Counts 8–10: Even when lateness or non-attendance occurred, the Court accepted evidence of distress, illness, or resistance, qualifying as a “reasonable excuse.”

Justice Howard also considered that interim orders made on 12 December 2024 were being successfully complied with by the father, highlighting that shorter, non-overnight visits were more manageable and in Z’s best interests (paras [116]–[119]).

Conclusion:

• No contraventions were proven on the balance of probabilities.
• Even if they had been, reasonable excuse existed for all ten counts.
• Application was dismissed.

📚 Judgment Reasoning

Justice Howard’s reasoning was anchored in practical reality, the statutory framework, and the welfare of the child:

• The Judge relied significantly on Z's demonstrated and consistent resistance to contact with the mother, corroborated by the evidence of Mr PP, a child expert (paras [64]–[66], [85]).
• The influence of sibling X over Z was critical to many conclusions (e.g., paras [33], [44], [48], [50]).
• The Court found credible efforts by the father to comply (e.g., para [39], [60], [96]).
• Cited Stevenson & Hughes (1993) to emphasise the need for more than passive facilitation of contact but found this standard was met under the circumstances (para [26]).
• Highlighted Justice Warnick’s commentary in Childers v Leslie on the limited utility of punishment-driven contravention proceedings in high-conflict parenting cases (para [123]).

🎓 Take-Home Lesson

In high-conflict parenting cases, especially involving older children with strong views, courts will scrutinise efforts to comply with parenting orders pragmatically. Passive compliance is not enough—but when a parent makes genuine, persistent efforts and the child is resistant, contravention may not be found. Importantly, reasonable excuse provisions allow the court to weigh context and child welfare over rigid enforcement.