Hunter & Morrison (contravention) 2014 FamCA 198

A father withheld children from contact with the mother on 3 occasions, citing reasonable excuses.   The mother alleged the contraventions were serious and posed a physical and emotional risk to the children by virtue of the contraventions precipitating suicidal ideation in herself.  The mother nominated either a bond or community service as suitable sanctions for the father.

In one instance the father arranged for a relative to take the children to the handover location, rather than doing this personally.  The judge found that this was a reasonable excuse.

In a second instance the father withheld the children after a 10 year old informed him that the mother had spoken of her thoughts about driving off the road into a tree and killing herself, because she was so sad.  The father considered that the mother had not spoken to the children in an age appropriate manner about her emotional wellbeing.  The father sought a reassurance from the mother that similar events would not recur but this was not forthcoming.  The mother attempted to justify her actions by saying that an older daughter who delivered the younger children had confronted the mother and had accused her of abandoning the children, and of only seeing the children when it suited the mother.  The judge found that the father had a reasonable excuse to withhold the children.

In a third instance the mother sent a letter from her treating psychologist but this letter did not address the father’s main concern and fear for the safety and welfare of the children.  The judge found that the psychologist’s letter did not show any awareness of the alleged disclosures by the children that the mother spoke of a possibility of her self-harming.  The judge found that the father’s belief was based on reasonable grounds.

The judge ruled that a different standard of proof is required depending on the type of contravention or breach, where the standard of proof for less serious contraventions is on the balance of probabilities, but the standard of proof for more serious contraventions is beyond reasonable doubt.  Imposing a sanction of a bond requires relevant matters to be satisfied on the balance of probabilities.   Imposing community service is only available in the event of a more serious contravention and requires that relevant matters be satisfied beyond reasonable doubt.

The judge found that no contraventions had been made out, and the applications for contravention were dismissed.