There are a significant number of people in Australia that have confirmed arrangements for separated parents to spend time with children according to Consent Orders. Those Consent Orders are enforceable, and if Court Orders are not followed, then it remains open to an aggrieved person to bring a Contravention Application before the Court. The purpose of that Contravention Application can vary – it could be to ask for make up time; to ask that the contravening party be placed on a Bond, or to suggest that the contravening party should undertake, for example, a post-separation parenting or anger management course.
However, there is a defence to Contravention Applications and that relates to whether the person has a reasonable excuse for contravening those Orders. In a society that is dealing with a global pandemic, what does a "reasonable excuse" look like?
It may well be that the Order that provides for time with one parent will not be followed because the other parent believes that the children will be at risk of contracting an illness. Perhaps Orders will fall apart because they provide for school as a changeover location, when the children are now not attending school. Orders could be contravened because they provide for equal shared parental responsibility, which one parent fails to exercise in determining medical treatment for a child. Parents may live in different states, and travel may not be possible, or may be opposed by one parent.
Do contraventions of this type amount to a reasonable excuse? In short, we do not know yet. The question may be entirely academic, in circumstances where only urgent matters are being dealt with before the Court in any meaningful way. If it is what I would refer to as a "minor" contravention of Orders (such as, for example, a child not being made available for a telephone call on one occasion) I do not believe that the Court will deal with it. If it relates to a child being withheld from a parent, then it may be urgent, but even I do not know at this stage what urgent actually means in terms of when the Court will actually deal with the matter.
For that reason, when things of this nature happen, it is imperative that they are dealt with urgently. To enable that, it is crucial that parties obtain the advice of an Accredited Specialist in family law. Situations such as these could end up being in place for months at a time, so it is extraordinarily important that they are actioned both competently and quickly.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.