What Constitutes a ‘Reasonable Excuse’ for Contravening Final Parenting Orders? Rhodes & Bass [2025] FedCFamC2F 27 (21 January 2025)
In family law disputes, compliance with parenting orders is crucial to ensure stability and well-being for children. However, there are circumstances where a parent may justifiably contravene such an order. A recent case highlights how the court determines whether a breach of a parenting order is justified and what legal principles apply in such situations.
Background of the Case
The applicant, a New Zealand citizen, arrived in Australia in 2014 on a Special Visa and works as a tradesperson. The respondent, originally from Country F, entered Australia as a backpacker in early 2015. The parties met that year and later married, having two children, X (born 2016) and Y (born 2019).
The parties’ relationship broke down, and they separated on 28 November 2020. The respondent left the relationship with the children due to allegations of family violence. Shortly after, the applicant initiated proceedings seeking parenting orders. In early 2021, he was charged with multiple criminal offences related to his conduct towards the respondent, resulting in an Apprehended Domestic Violence Order (ADVO) for her protection. A separate ADVO was later issued for the children, imposing non-contact conditions.
The applicant was subsequently committed for trial on various charges, including assault and sexual abuse. In September 2022, final parenting orders were made by consent in the Federal Circuit and Family Court of Australia, granting both parents equal shared parental responsibility. The children were to reside with the respondent, with the applicant having scheduled time with them. However, in mid-2023, concerns arose regarding the children’s safety, leading to child protection authorities conducting an assessment.
In late 2023, the applicant was convicted of assault and sexual touching offences, receiving a Community Correction Order and an Intensive Correction Order. Further restrictions were placed on his contact with the children. The respondent withheld visitation due to safety concerns, and additional ADVO breaches were reported. The applicant was subsequently arrested and charged with contravening the ADVO.
In mid-2024, the Local Court of New South Wales issued a Final ADVO for the protection of the children for a period of two years. The applicant has indicated his intention to challenge this order.
Legal Principles Governing Contravention
The hearing took place electronically on 19 September 2024, under Rule 11.69 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The applicant alleged multiple breaches of a final parenting order by the respondent.
The applicant pressed five counts of contravention without reasonable excuse, specifically alleging that the respondent refused to allow him to spend time with the children on five separate occasions in violation of Order 4(a)(i) of the final Orders dated 21 September 2022. The respondent admitted to the contraventions but argued that she had a reasonable excuse.
Definition of Contravention and Reasonable Excuse
Under Section 70NAC of the Act, a person contravenes an order under this Act affecting children if they:
Intentionally fail to comply with the order; or
Make no reasonable attempt to comply with the order; or
Prevent or aid in preventing compliance by another person.
The standard of proof required for contravention matters is the balance of probabilities.
The meaning of "reasonable excuse" is outlined in Section 70NAE of the Act. In this case, the respondent relied on Section 70NAE(5), which provides that a person has a reasonable excuse for contravening a parenting order if:
(a) They believed on reasonable grounds that preventing time with the child was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) The duration of the non-compliance was not longer than necessary to protect the person’s health or safety.
The burden was on the respondent to prove, on the balance of probabilities, that she had a reasonable excuse under Section 70NAF(1) and (2).
Key evidence presented included
The respondent left the marriage due to “extreme” family violence by the applicant and resided in a refuge with the children for safety. She was not permitted to disclose her address.
The Department of Communities and Justice (DCJ) deemed the children safe in the respondent’s care but unsafe in the applicant’s care. The respondent was advised that willingly sending the children to an unsafe situation could lead to them being taken into foster care.
The respondent feared that allowing unsupervised visits would expose the children to harm, given the applicant’s history of violent behaviour, including damaging property, aggressive outbursts, and prior domestic violence incidents witnessed by the children.
The applicant was convicted and sentenced in late 2023 for multiple criminal offences against the respondent. The respondent relied on these convictions as justification for withholding unsupervised contact.
Despite pleading guilty to charges of assault and sexual touching, the applicant did not take responsibility for his actions and admitted under cross-examination that he only pled guilty for financial reasons. There is no evidence that he completed the required Behaviour Change Program.
DCJ found a pattern of coercive behaviour by the applicant, including financial control by allegedly claiming 100% of parenting payments and family tax benefits, which limited the respondent’s access to financial support.
The eldest child reported being fearful to fully disclose incidents involving the father. She also disclosed concerns about the applicant’s inappropriate behaviour, including grooming-like actions.
The respondent raised concerns about an unidentified boarder living with the applicant. The eldest child disclosed that she and the younger child were sometimes left alone with the boarder or without any supervision while the applicant was away.
The respondent confirmed she does not oppose the children spending time with their father but insists on professional supervision due to safety concerns.
Court’s Decision
The court acknowledged that while the respondent’s evidence lacked detail, there was sufficient information from DCJ and police indicating potential risks to the children in the applicant’s care. The court identified key concerns, including the applicant’s history of family violence, criminal convictions, exposure of the children to domestic violence, a current ADVO protecting the children, and the eldest child's concerning disclosures.
The court found that the respondent reasonably believed the children would be at risk if they had unsupervised contact with the applicant. Given DCJ’s ongoing safety concerns and their intention to create a plan restricting unsupervised access, the respondent’s actions were deemed necessary to protect the children.
Ultimately, the court ruled that the respondent had a reasonable excuse for contravening the parenting orders and dismissed Counts 3, 4, 5, 6, and 7 of the application.