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Contravention case of interest

An appeal by the father against an order of a federal magistrate dismissing a contravention application brought by him

Judgment delivered 18 January 2008

An appeal by the father against an order of a federal magistrate dismissing a contravention application brought by him.

The father was entitled, pursuant to orders, to spend time with the child but on the occasion in question the mother did not permit this to occur. The federal magistrate found that the mother had a reasonable excuse for the contravention and dismissed his application.

A central point in the father's appeal was that the federal magistrate should not have found that the mother's excuse was made out because her evidence did not meet the terms of s 70NAE(5) of the Act. In addition, the father submitted that having regard to the evidence before her that the child remained unwell in the week following the alleged contravention but the child was then cared for by persons other than the mother, the federal magistrate ought to have been satisfied that the child did not need to be withheld from the father.

Held: appeal allowed.

1. The correct approach would have been to at least attempt to measure the mother's excuse against the terms of s 70NAE(5) and to explain why the subsection did not apply, if that was held to be the case.

2. On the face of her reasons the federal magistrate applied a wrong test, namely the terms of s 70NAE(2)(b).

3. The learned magistrate may have well fallen into error by applying too loose a test of "reasonableness".

4. It was not open to the learned magistrate in circumstances as the learned magistrate found them to be, to find a "reasonable excuse" for the contravention which occurred.

5. While the learned magistrate indicated an awareness of the father's contentions of the relevance of ex post facto events, she did not deal with the question of the significance of those events to act directly bearing upon the question of "reasonable excuse" but rather merely expressed satisfaction that the mother had made appropriate arrangements for the child's care in the following week. The failure to address the father's arguments constituted appealable error.

Full text in judgment below

Attachment
CHILDERS and LESLIE - _2008_ FLC 93-356

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
Outstanding. Hopefully this will give magistrates firmer ground to make their rulings on in contraventions now.

A lot of contravening parents do not understand that what they consider a "reasonable excuse" is not the same as what the court will consider a reasonable excuse.

This should also be a warning to parents that would prefer to send their child to daycare, even when sick, than a "spends time with" parent.

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