FATHER FILES FOR CONTRAVENTION AND CONTEMPT APPLICATIONS AGAINST THE MOTHER
Herriot & Howes [2020] FCCA 3483 (21 December 2020)
This case consists of contravention and contempt applications filed by the father against the mother for the alleged breaches of orders made on July 12, 2019.
Facts:
The applications relate to two children, X born 2005 (aged 15) and Y born 2007 (aged 13). The applicant-father filed a contravention application and a contempt application against the respondent. All applications allege breaches of orders made on 12 July 2019.
As to the contravention, the first alleged contravention is that on 20 November 2019 at 7:22pm, the respondent without reasonable excuse failed to engage X in individual counselling pursuant to the order of 12 July 2019. The second alleged contravention is that on 14 December 2019 at 8:31am, the respondent without reasonable excuse failed to engage X in individual counselling pursuant to the order of 12 July 2019.
The mother, in her defense, contends that she was willing to comply with the order but that she required the father to comply with his obligations pursuant to the order and meet the costs in circumstances where she complains he was not meeting any costs relating to the children.
The contempt application, on the other hand, relates to the child Y not being available to spend time with the father at various times and dates pursuant to the order of 12 July 2019.
The mother presented evidence which is an email exchange stating that the mother was requesting reasonable information relating to where the child would be staying. That request was made in circumstances where the father had no suitable accommodation for overnight time and had previously suggested that he and the child spend overnight time in a hotel.
The father seeks make up time and a conviction for the contempt and the mother seeks that the orders of 12 July 2019 continue in force.
Issue: Should the court grant the order sought by the father?
Law:
- Family Law Act 1975 Pt VII Div 13A, ss 60CA, 70NA
Analysis:
In light of the evidence relating to the contravention application, the court is satisfied that the mother was not intentionally failing to comply with the order and that she was making reasonable attempts to comply with the order.
It is also relevant to note that the father provides no evidence to support a finding that the mother failed to engage the child in individual counselling on either 20 November 2019 at 7:22pm or 14 December 2019 at 8:31am.
Finally, in light of the contempt charges against the respondent, the action the mother took on this occasion was to request important and relevant information that related to the safety of the child and in my view was reasonably entitled to request that information. In those circumstances, the court is not satisfied beyond reasonable doubt that the mother took a deliberate step which breached the order.
Conclusion: Accordingly, the application is dismissed.