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FATHER LOST HIS APPEAL FOR FAILURE TO PROVE REASONABLE EXCUSE OF CONTRAVENING THE PARENTING ORDERS
CARRINGTON & GUNBY
FAMILY COURT OF AUSTRALIA
[2020] FamCAFC 117
FACTS:
Mr. Carrington (the father) appeals from a finding made by a judge of the Family Court of Australia that he contravened parenting orders by failing to return B (the child) to Ms. Gunby (the mother) on 30 June 2019. The final parenting orders provides that the mother and the father were to have equal shared parental responsibility for the child who was to live with the mother. Relevantly, the child was to spend time with the father each alternate weekend from 6.00 pm on Friday until 6.00 pm on Sunday.
On Sunday, 30 June 2019, the father failed to return the child at 6:00 p.m. to his mother. The father’s case was that he had a reasonable excuse for not complying with the obligation to return the child to the mother because the child was at an unacceptable risk of harm in the mother’s care. The father 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 father asserts that the primary judge erred in finding that the father has not presented evidence at all which would enable the Court to find that the father has breached the order but has a reasonable excuse for doing so.
ISSUE:
Did the father demonstrate that he had a reasonable excuse for retaining the child?
HELD:
The father accepted that he had not returned the child as was required by the orders, thus, he bore the burden of establishing that he had a reasonable excuse for doing so. A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favor the order was made if (a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and (b) the period during which, because of the contravention, the child did not live with the person in whose favor the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).[1]
He (the father) is obliged under the Act to ameliorate the risk in the sense that the compliance or the non-compliance with the order is available to him, but only for so long as is necessary. The mother acted in a timely fashion in bringing her application for contravention. The father has had ample opportunity to consider how he should go forward with the matter. Whether it is a matter of application to vary, or whether he should 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 open to him to maintain the defense of reasonable excuse.[2]
The primary judge found that there was no evidence as to a risk of harm to the child that reasonably justified the continued retention of the child until the time of the hearing, or that the father believed, on reasonable grounds, that there was such a risk. The father has not presented evidence at all which would enable the Court to find that the father has breached the order but has a reasonable excuse for doing so. The father did not present evidence supporting risk he has been presented. It is also not supported by any application seeking to suspend and/or vary the order. It is not a matter where the Court is able to simply accept that the father’s assertion that the child is at risk, which satisfies on the balance of probabilities the establishment of evidence that the child is at risk in the mother’s home.
The Court, finding that no error by the primary judge has been identified, dismissed the appeal.
[1] S 70NFA(3) of the Family Law Act 1975 (Cth).
[2] Carrington & Gunby [2020] FamCAFC 117 (15 May 2020), para. 42(31).