MOTHER ALLEGEDLY CONTRAVENED THE PARENTING ORDERS MADE BY THE COURT
Delaine & Delaine [2020] FCCA 3069 (13 November 2020)
This is a case filed by the father alleging that the mother contravened with the parenting orders made by the court by consent.
Facts:
The father alleges four counts of contravention of parenting orders made by this Court by consent on 30 April 20!9. The allegations of contravention relate to circumstances in which the parties’ youngest child, X born in 2010, did not spend time with the father at various junctures between July and October 2019.
The mother entered pleas of not guilty for all alleged contraventions.
Issue: Did the mother contravene the parenting orders made by the court?
Law:
Analysis:
On both 13 and 14 July 2019, the child was at the changeover location at the requisite time. On both occasions, the child communicated his reluctance to spend time with the father. On both occasions, the father left the changeover location without the child.
The fact is that X did not spend time with the father on either of those two occasions, however this does not ipso facto mean that the mother contravened the orders. The evidence does not establish that the mother either intentionally failed to comply with the order or that she made no reasonable attempt to comply with the order.
The difficulty is that the father himself left without the child on each of the two occasions. There is no evidence that the mother left it up to X to decide whether he was going to spend time with the father or not, indeed, the evidence is that it was the father who decided to leave it up to X to make this decision.
Counts 1 and 2 are not established.
In respect of 14 September 2019, parties had agreed for changeover to occur at a place other than in accordance with the orders. As such, the alleged contravention cannot be made out being an allegation that the mother either intentionally failed to comply with the order or that she made no reasonable attempt to comply with the order. The father, in any event, conceded that he spoke to the child and that the child again communicated to him that he did not want to go with the father. In those circumstances, the father did not press for X to go with him. The mother was not present.
Count 3 is not established.
Lastly, in respect of 13 October 2019. The orders were for the child to spend time with the father from Saturday overnight to Sunday. The father delivered the child back to the mother’s care on Saturday night (after he had taken the child to Town F contrary to the orders), and then alleged that the mother breached the orders by failing to ensure that the child spent time with the father from 10am on the following day. This cannot be a contravention of the orders as made, as the orders did not provide for the child to spend time with the father from 10am on that Sunday.
Count 4 is not established.
Conclusion: Court orders that the Application-Contravention be dismissed.
