1. This was a hearing of 3 contravention applications issued by the father of a child P, alleging the mother on 26 occasions contravened orders for contact by P with his father. P was born on 14 April 2003 and at the time of the alleged contraventions was two.
2. The mother admits she contravened the orders as alleged on each of the 26 occasions but relied on the defence of reasonable excuse.
10. In its decision of Gaunt and Gaunt (1978) FLC 90-468 the Full Court of the Family Court considered a fact situation where a father had failed to comply with an interim order for contact by his 2 children with their mother. The order was made by a Judge without the father’s agreement. He alleged he had “reasonable cause” for the contravention because the children were upset at the prospect of seeing their mother and if they were forced to do so against their wishes they could suffer harm. He called expert witnesses who testified that resumption of contact by the children with the mother could be harmful.
11. The Full Court said:
The essential question is this:- can a party who does not agree with a Court's decision about access defy the order and then plead that in preventing access his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child? The question of the child's welfare is, of course, the paramount consideration for the Court in determining the access question in the first place. To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the Court's order or from the consequences of non-compliance would undermine the purposed and intentions of the Act.
This is not to say that the Court's decision, once reached, determines the matter for all time. It can be challenged by appeal and it can be reviewed and varied if new evidence or new circumstances dictate such a course of action (see Hayman v. Hayman (1976) FLC ¶ 90-140). The husband did not appeal. Nor did he apply to vary the order. His reasons for failing to do so suggest that he was given bad advice but we cannot determine whether that is so. A party's subjective view of the rights and wrongs of a decision cannot be relied on as ''just cause or excuse'' or ''reasonable cause'' . Evidence of changed circumstances or of matters not considered when the order was made might be.
12. In O’Brien and O’Brien (1993) FLC 92-396 the mother failed to facilitate contact ordered for a child with the father, and relied upon reasonable excuse. She alleged she did not understand the obligations of the orders place on her and it was not in the child’s interest to have contact.
13. Smithers J said (at p.80,044-5 of the report):
The wife also contends that it was appropriate for her to deny access, and that she was not culpable under section 112AD if she did so on the basis that it was not in the interests of the child for access to take place. Counsel on behalf of the wife referred to a number of cases in which the principle of the paramountcy of the welfare of the child was referred to. It seems to me that those cases are largely cases dealing with the question as to whether an order for access should be made in the first place, and not with enforcement.
I do appreciate, however, that in the case of Cavanough and Cavanough(1980) FLC 90-851 it was said by the learned judge, Justice Connor, that the question of the welfare of the child was to be taken into account in relation to a prosecution for breach of an access order. Nevertheless, at page 75,371 of that judgment, His Honour said as to the custodial parent:
“I also accept that his attempts to give access to his wife have been genuine attempts and have been frustrated by the attitude of the children.”
In Cavanough’s case it seems to have been quite clear that the husband genuinely desire the children to go on access in accordance with the court order. That case is thus completely different from this one. I am satisfied, insofar as it may be necessary for me to make this finding of fact, that the wife’s attitude on the dates referred to in the application, was, contrary to her own evidence, that she did not want the child to go on access to the father. I am quite satisfied as to that and on the necessary criminal standard of proof.
Whatever one may say about Cavanough’s case, and the suggestion that one has to take into account the welfare of the child in determining whether a person has reasonable excuse for not complying with the access order, it seems to me that the passing of section 112AC(3) makes it clear that a reasonable excuse in respect of concern as to the welfare of the child, is limited to a belief, on reasonable grounds, that depriving a person of access pursuant to an order was necessary to protect the health or safety of a person. It is not a question as to whether in the view of the custodial parent, or in the view of the custodial parent on reasonable grounds, that the carrying out of the access order might not be in the best interests of the child. The question is whether it is necessary to protect the health or safety of a person, including the child. That ground has certainly not been established in this case. Indeed, to the contrary, there is nothing to suggest that refusal of access was necessary to protect the health or safety of the child or any other person. There was no basis upon which the wife might have believed on reasonable grounds that this was so. The wife gave no evidence in relation to any concern for the health or safety of the child except in the most general sense, in that she said that if she told the child she had to go on access that might in some way diminish the very close relationship and trust between her and the child.