Belief that the Court “got it wrong” is no defence to a contravention application
- In the decision of Gaunt & Gaunt (1978) FLC 90-468 the Full Court considered the positon of a party who does not agree with the decision of the Trial Judge. There the Court held at [77,398] that:-
The essential question is this – can a party who does not agree with the Court’s decision about access, defy the order and then plead that in preventing access, his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child?…To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the Court’s order or from the consequences of non-compliance would undermine the purpose and intentions of the Act.
- The mother in this case refuses to enrol with the Family Contact Service due to her view that permitting the father to spend time with the children, even supervised time, would be contrary to the welfare of the children. Those matters were considered and determined by Cronin J. The appropriate manner in which to challenge the Orders is by appeal; the mother has not filed an appeal. The mother’s subjective view as to the rights and wrongs of Cronin J’s decision is not a basis upon which it could be said she has a reasonable excuse for contravening the final Orders. To permit the mother to maintain that position would undermine the provisions of the Act, the trial process so recently concluded and the final Orders made following the hearing.
- Having regard to the findings of Cronin J with respect to the allegations of sexual abuse and to the evidence of the mother given this day, I do not accept the mother’s submission that she has a reasonable excuse for contravening the order.
- However, in circumstances where the mother is currently undertaking psychological counselling to assist and support her in coming to terms with the outcome of the final hearing and the decision made by Cronin J, I am not satisfied that it can yet be said that her behaviour is such as to show a serious disregard of her obligations under the orders. I accept that the mother has been distressed by the outcome of the proceedings and that distress has likely influenced her conduct in refusing to comply with the final Orders that she enrol in the Family Contact Service. Nonetheless, if such behaviour continues, notwithstanding this proceeding and the findings contained herein, it is likely that any further application would result in such finding.
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