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Proven Contravention - AND 'Lives With' and 'Spends Time With' Clarification

The attached judgement is more of interest for paragraph 16 because it clarifies some of the confusion surrounding 'Lives With' and Spends Time With' in relation to Section 65 of the Amended Act

"All of the obligations created by s.65N are either the same as or are necessarily latent in s.65M".


16. I should note that the charges are framed and the trial proceeded as if the orders were orders that provided for the father to spend time with the children. They are in fact orders that provide for the children to live with the father at certain times. No point was taken in relation to this discrepancy. Nothing turns on the distinction in terms of the legislative provisions and the obligations created by the orders. The provisions of s.65M and s.65N are taken to create obligations which become part of live-with and spend time-with orders respectively (see s.70NAD).

Live-with orders create obligations as follows (s.65M):

(2) A person must not, contrary to the order:

(a) remove the child from the care of a person; or

(b) refuse or fail to deliver or return the child to a person; or

interfere with the exercise or performance of any of the powers, duties or responsibilities that a person has under the order.

Spend time-with orders create obligations as follows (s.65N):

(2) A person must not:

(a) hinder or prevent a person and the child from spending time together in accordance with the order; or

(b) interfere with a person and the child benefiting from spending time with each other under the order.

It is difficult, given those provisions to see how materially different the evidence led in a contravention of a "live-with" order would be from that led in respect of a contravention of a spend-time order. All of the obligations created by s.65N are either the same as or are necessarily latent in s.65M.







Attachment

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas.
With regard to orders involving web cams, I wonder if it would be feasible to link a contravention to 65N in the spends time with….where a person must not

"(b) interfere with a person and the child benefiting from spending time with each other under the order."

where the resident parent is deliberately interfering (on occaision) or at very least not facilitating web cams?

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
Artemis said
With regard to orders involving web cams, I wonder if it would be feasible to link a contravention to 65N in the spends time with….where a person must not

"(b) interfere with a person and the child benefiting from spending time with each other under the order."

where the resident parent is deliberately interfering (on occaision) or at very least not facilitating web cams?



Orders for telephone contact usually have the term 'facilitate' included. It is important to understand a 'contravention' implies a deliberate action. If orders are not clearly defined and open to interpretation then of course 'reasonable excuse' is used.

Mobile telephones and web cam orders require far more detail especially regarding who is paying for the cost.

'Mobile phone' and 'web cam' orders are included in the draft 'Orders Generator' being produced for the site


Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas.
Interesting. Thankyou. I will have to go back and re-read. I don't believe they have the word facilitate in them.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
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