It is not unusual for family lawyers dealing with parenting disputes to hear a client explain their actions by reference to the actions of the other parent. For example “I didn’t accept the Father’s call because he didn’t allow me to speak to the children during the week that they were in his care”. This tit for tat approach to parenting matters is not in the children’s best interests and not considered appropriate behaviour by the court.
In the recent matter of Bircher & Bircher [2022] FedCFamC1A 59 (11 May 2022) the Full Court dismissed an appeal by the Mother of the primary judges decision that found that her withholding of the children due to the Father’s earlier “noncompliance” with Orders was not to be deemed a reasonable excuse, following the finding that she had contravened Orders of the court.
In this matter the Mother retained one child during a period of the school holidays resulting in the Father missing out on time with that child that he was to have in accordance with the current Court Order. The Mother’s position was that the Father had withheld the child during an earlier school holiday period. However, the earlier withholding of the child by the Father was not part of any application by the Mother for contravention and no Order or Agreement had been made for the Mother to have make up time.
As a result of the Mother unilaterally withholding the child, make up time was ordered for the Father and the Mother was also ordered to pay a fine.
The decision highlights the importance of following Orders and not seeking to “even the score” when it comes to parenting matters. Often contraventions, particularly those that involve missed time with children, can be resolved by way of negotiation and agreement as to make up time. If an agreement as to make up time can’t resolve the matter without the involvement of the court, the new legislative pathway for contraventions includes a more streamlined approach with such applications having their own list and being given priority. In theory this means that contraventions should be dealt with quickly by the court so that the parents can move forward with compliance of the Orders and not get bogged down in the court system. Those on the ground say that the new system is working, although formal statistics relating to such applications have not been released as the changes were only implemented in September of 2021.
If you require assistance regarding the implementation of Orders, we recommend that you contact one of our experienced solicitors today for an appointment.
