By and -

Key decisions

  • Bircher & Bircher [2022] FedCFamC1A 59
  • Pascoe & Larsen [2022] FedCFamC1A 64
  • Woodcock & Woodcock (No 2) [2022] FedCFamC1F 173
  • Nevins & Urwin [2022] FedCFamC1A 57


Contravention – mother’s ‘tit-for-tat’ withholding of child to make-up for father’s earlier non-compliance is not a ‘reasonable excuse’

In Bircher & 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 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 & Leslie [2008] FamCAFC 5, Warnick J confirmed that the circumstances described in s 70NAE(1) of the Act 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.

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