Kolesov & Jenkins 2013 FamCA 151

The mother alleged over 140 contraventions by the father.  Three children lived with the mother and spent time with the father when he was in Australia.

The judge dealt with alleged contraventions on an individual basis:

• When the children were aged nearly 14 and 11 the parents had condoned between themselves a situation where the orders were effectively ignored as two children lived with the father for some months after the mother had asked the older child to leave home and the younger child then decided also to move to live with the father.  The judge found that a reasonable excuse had been established.

• The father returned a younger child 3.5 hours late saying that the child was having fun and alleged that the mother had agreed.  The mother denied that she had agreed.  The judge found that no reasonable excuse was established by the father.

• The mother conceded that a child aged 12 years did not want to live with the mother, and a 13 year old had moved between the parent’s houses.  The father kept the children overnight and took the children to school instead of returning the children to the mother’s house, citing the age and wishes of the children.  The judge found that a reasonable excuse had been established.

• The father did not return the children during school holidays.  The judge found that the father had a positive obligation to make efforts to comply with his obligations under the parenting orders and that his evidence was vague and uncertain and failed to establish a reasonable excuse.

• The father failed to deliver the children to school on time because the father had another appointment.  The judge found that the father had failed to provide a reasonable excuse.

• The father did not take the children to school and submitted that both children were unwell during the course of the morning, and that when he next took the children to school he provided a note giving the reason for their absence.  The judge found that the father provided a reasonable excuse.

• The school recorded a child as absent from school for the whole day.  The father asserted that he had been informed that the mother had planned to sell a horse that was regarded as the child’s horse, so he took the child with him to recover possession of the horse and was not able to return until later in the day.  The judge found that the father had established a reasonable excuse.

• The father says that the child was upset over aspects of the mother’s relationship with her and that he took time with the child to talk through the issues and as a consequence the child was about one hour late for school. The judge found that the father had established a reasonable excuse.

• The father stated that he was taking make-up time owed to him, and that if the mother had a problem with this then she should speak to her lawyers.  The judge found that the father had not presented a reasonable excuse and the contravention was established.