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Children – contravention – mother’s ‘tit-for-tat’ withholding of child…

family law casenotes

…to make-up for father’s earlier non-compliance – not a ‘reasonable excuse’

In Bircher [2022] FedCFamC1A 59 (11 May 2022), the Full Court (Aldridge, Bennett & Howard JJ) considered a decision where the mother had contravened parenting orders in relation to a 13-year-old child ‘C’.

The mother argued that the father had withheld the child during her holiday time, such that she was entitled to make up time.

The Full Court said (from [25]):

“Whether the father’s retention of C for the first week of the … school holidays was appropriate is attended with some doubt (…)

[26] … In Childers and Leslie [2008] FamCAFC 5, Warnick J confirmed that the circumstances described in s70NAE(1) of the (Family Law) Act (1975) are not the only circumstances in which reasonable excuse may be found. However, even if the father contravened … that lack of compliance … does not entitle the mother … to over-hold C … It is not for one party to take these matters into their own hands and engage in self-help.

[27] It is conceivable that a reasonable excuse may involve a reasonable belief … concerning the effect of the other party’s failure to comply … However … we are not persuaded that it was open to the mother to over-hold C and then claim that time as compensation for a previous wrongdoing … To accept such an argument would lose sight of the fact that parenting orders regulate the actions of parents for the benefit, protection and security of children. … [T]he father’s actions deprived C of the company of her brothers and spending the first week of school holidays in the mother’s household … [T]he consequence of the mother’s action was to replicate that situation in relation to the first week of the holiday period to which the father was entitled … Superficially, it was a tit-for-tat exercise as between the parents. In substance … the disruption and deprivation was doubled for C … On a more general level, self-help is not open to citizens when they believe another citizen has breached a court order or legal rule: the remedy always lies in an application to the courts …”

The appeal was dismissed.

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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