Wednesday, 04 January, 2006
The Full Court of the Family Court recently considered the nature of a mother's obligations to ensure contact where hand over takes place at a contact centre.
The court upheld the mother's appeal against a finding of the trial judge that she had contravened orders for contact without reasonable excuse, in circumstances where she had presented the child, aged seven, to the contact centre in accordance with court orders.
The trial judge found that the mother had not been sufficiently active in ensuring the child attended contact with the father and did thereby contravene the orders. His honour said that taking the child to the centre and telling her "off you go" did not discharge her obligation to positively encourage access.
There was evidence before the court that the mother understood all she was required to do was to present the child to the contact centre. The mother's lack of understanding of her obligations under the orders could constitute a reasonable excuse in accordance with s 70NE (1A) of the Family Law Act 1975.
Though the mother's legal representatives failed to focus on this point in the mother's defence, the full court held it was a defence which was never abandoned by the mother and should have been considered by the trial judge.
The full judgment of Daly v Campbell (2005) FLC 93-236
D & C [2005] FamCA 1046 - 04/11/05
APPEALS –
From Decision of Family Court Judge –
Parenting Orders - Contact - Contravention - Reasonable Excuse - The parties have one child of 7 years of age - Contact orders were in existence allowing the father contact - A previous contravention application had resulted in the mother being sentenced to 30 days imprisonment and serving part of that term - On hearing the subsequent contravention application the trial Judge concluded that the mother had again contravened the orders for contact without reasonable excuse - The trial Judge revoked the suspension of the remaining 18 days imprisonment to be served by the mother.
Application to adduce the service agreement with the contact centre as further evidence - the mother argued that once the mother presented the child to the contact centre there was no further opportunity to promote contact - This argument not run in the court below - The further evidence could have been made available at the time of the trial.
The mother argued that the previous 'history' of litigation was not relevant - Not necessary to express a concluded view - There are dangers for a trial Judge referring to past litigation as difficult questions of the evidentiary status of such matters can arise.
Misunderstanding obligations under the relevant order as a 'reasonable excuse' - There was evidence at trial that the mother believed her obligation did not go beyond presenting the child at the contact centre - A parent obliged to deliver a child to a contact centre, even if constrained as to interaction with the child after reaching the centre, is also obliged to so act as to encourage the child not just to attend the contact centre but, when there, to leave on contact with the other parent - A need to address whether that obligation was met does not exclude consideration of a parent's understanding of obligations under an order for contact.