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Contravention as tool to bypass Rice & Asplund

Old History (short version)
Separated 2002 - Children live with mother - "Negotiated access" (her terms) until "you are not seeing the kids" - request for mediation - Ex refused mediation - Court & Lawyer fees - Consent Orders made in FMC April 2008.  (hope that is clear enough)

Recent History
August 2009 - letter from her lawyer requesting the existing Orders "set aside" - my refusal as no significant change - 2nd letter stating "seek legal advise…. to avoid immediate application to Federal Magistrate Court to vacate the existing Orders" - letter back stating that no significant change and no desire to change Orders

Now
Ex is breaching the orders by not delivering the children at the times specified (Orders state Friday @ 5.30pm - she has decided Sat 9am)  Ex states that "this is what the children want".  I have indicated to the Ex that she is breaching the Orders and have now sent letter to her lawyer stating what has just occurred over the weekend and her statement that she will continue to deliver the children Sat vice Friday.

My Question
Since the precedence of Rice & Asplund is well known and the hurdle it poses to changing orders, is it possible that they have planned to contravene the Orders so that the matter can get to Court without them needing to overcome Rice & Asplund and have Orders varied by the Magistrate (as that is one of the options open to them when hearing a contravention) without Rice&Asplund being considered?

Extra information
From his website, i gather her lawyer is not a Family Law specialist, seems to have experience (20yrs) in everything. 
Not sure of my Ex's grip on Family Law as in email from her, she quoted sections 60CA, 60CC, 60CD and 65P as justification for her decision - i have read these sections and don't get it.


P.S. Pardon the point form style, but i'm trying to keep it brief.
Andy G,

Yes - well the mother is creating 'reasonable excuse'.

How old are your child/ren?

4MYDAUGHTER
The children are 12 and 9.

When you say "reasonable excuse" is her excuse that the Children don't wish to spend time with me?  I may be confused, but isn't there a determination by the Courts that both parties need to 'positively encourage' contact.  That the child saying 'no' is not sufficient reason to allow a contravention?

It would seem strange to me that by her contravening the Orders she gets the chance to change the Orders in her favour.
Yes- I agree with your reasoning. She's setting the ground work for 'contravention with reasonable excuse'. And I agree with your argument that she should be encouraging the children to have contact with you regardless of the the children's views. And I'd imagine the Court would conclude the same. I recall reading Contravention judgements to that effect several years ago.

Being 12 and 9 their views shouldn't carry much weight before the family court. And another thing - do both children feel the same way? Hmmm..? How would she explain both children allegedly holding the same views about not spending time with you? That seems odd and less likely. If both children hold that view, how do we know that the older child is not influencing the younger child? How do we know that the children aren't being influenced by the mother, consciously, or conforming to the mother's 'subconscious' views to appease her - a false expression of loyalty?

Sounds like you may be filing a contravention application?

Last edit: by 4mydaughter


4MYDAUGHTER
For reasonable excuse, is Section 70NAE the only section that applies?  It only refers to having health or safety concerns for a person (inc respondent or child).

Additional information - i have remarried and have SD14, SS12 and SS10.  SD14 and D12 talk a fair bit - one comment from D12 to SD14 about the change to Sat vice Fri was "its easier to go along with what mum wants" or similar. 

When talking to D9 about it (whilst swimming - trying to be gentle) she became upset about questions regarding Saturdays vice Friday.

Based on both those comments/responses I think that the girls have been worked on by the mother.
Poor things. Probably feeling caught in the middle and don't want to disappoint either parent. Older children are not as robust as preschoolers. They tend not to cope well with change. Their world is more fixed.

Section 70NAA(3) sets out the broad framework of the compliance regime, which is as follows:
 
Subdivision C - contravention alleged, but not established.
Subdivision D - contravention established, but reasonable excuse.
Subdivision E - contravention established, but no reasonable excuse; less serious contravention.
Subdivision F - contravention established, but no reasonable excuse; more serious contravention.

The mother's contravention would be either Subdivision D or E

Last edit: by 4mydaughter


4MYDAUGHTER
With regard to positive encouragement for contacting the 'non residence' parent can i draw anything from Stevenson & Hughes (1993) 16 FAM LR 443.  When commenting on the behavior of the mother where she was supposed to make the child available for phone contact, she would dial the father's number and asked the child if he want to speak with the father, child would say (shout) "no" and mother did no more to encourage contact.

Justice Nygh in judgement stated following:
The question really before the court, and before us, is essentially how far she has to go to make a reasonable attempt. The wifes argument was that she had done all that is humanly possible to comply with the order by issuing the invitation. This is what I might call a classical case which the Full Court dealt with in the case of Stavros, namely that there is an obligation cast upon the (residence)parent to take reasonable steps to make the child available for (contact). It is not open to the (residence) parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the (contact) parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms, behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep and, indeed, this situation is directly comparable to it. It is quite clear that such an approach is wrong and the wife in this circumstance, clearly, was in breach of her obligations under the order.

Would this mean that her statement that the child says "this is what we want" is not sufficient reason for contravention?  That she should be positively encouraging them to visit as per the orders?


PS - above is drawn from
ERROR: A link was posted here (url) but it appears to be a broken link.
http://www.stlegal.com.au/guide-to-enforcement-of-children%E2%80%99s-orders/ - unable to find the case in the AustLII Databases
I've just re-read your first post. What she has done is unilaterally changed the parenting arrangements, i.e. dropping kids of Sat rather than Fri. Plus she's refused mediation.

Does the mother's proposed changes to the parenting arrangement change child support entitlements? i.e. would you be required to pay more?

The judgement you found is good. More solid to Full Court Judgements to support your legal reasoning. Probably a good idea to check out full court judgement of "Stavros" referred to.

On the face of it, there is no doubt that she has contravened orders. The solicitors correspondence confirms that orders aren't being complied with and give a reasons why. Once contravention is established, the onus is then on the mother to prove 'reasonable excuse.'

I don't believe a court would see her excuse as reasonable. It's her responsibility to ensure that the orders are complied with.




4MYDAUGHTER
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