In the recent case of Tindall & Saldo  FamCAFC 1 (9 January 2015) the Full Court of the Family Court of Australia overturned a first instance that a mother did not have a reasonable excuse for contravening a parenting order for her child.
Under the Family Law Act, a contravention of a parenting order will be disregarded when the person contravening the order had a “reasonable excuse” for doing so. A fear for the health or safety of the child if the order was continued to be followed, is a reasonable excuse.
The mother failed to facilitate an order that the child have supervised time with the father. The excuse was that although allow the parties separated in 2008, the father/ husband was due to face criminal charges in a trial before court, in which the mother was to give evidence. The mother had endued domestic violence during the relationship.
At first instance, the court did not believe that the mother’s decision to give evidence at trial did not mean that she had a genuine fear for the health or safety of herself or the child if the order was followed. The court based this decision on the fact that the father had decided to plead guilty, and because the mother had recently allowed the father to spend time with the child.
On appeal, the court found that there was a genuine concern for the safety of both the mother or child. The full court accepted evidence that the husband changed his plea to guilty after the mother was cross-examined, and because of earlier threats by the father to kill the mother and child for taking him to court.
The full court found: “We accept that his Honour erred by failing to have regard to . . . the events . . . surrounding the criminal trial, in finding that the mother’s belief was not based on reasonable grounds.”
There was accordingly a reasonable excuse for contravening the order.
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