Carrington & Gunby [2020] FamCAFC 117 — When Safety Concerns Are Not Enough to Breach Parenting Orders

Citation: Carrington & Gunby [2020] FamCAFC 117 Court: Full Court of the Family Court of Australia — Appeal Decided: 15 May 2020 Themes: Contravention · Reasonable excuse · Withholding · Safety allegations

Case summary

Parenting orders provided for an 11-year-old boy to live with his mother and spend alternate weekends with his father. After one weekend, the father did not return the child, alleging that the boy was being abused by the stepfather in the mother's home. He kept the child for around four months, and the child was removed from his school.

The mother brought a contravention application. Police had investigated the allegation and laid no charges, and the report writer did not identify any risk to the child. The father did nothing to resolve the situation except wait for the contravention hearing, where he produced no evidence to support his allegations. The trial judge found that he had no reasonable excuse, treated the contravention as falling in the "more serious" category, and required him to enter a 12-month good behaviour bond.

The father appealed. He argued that the judge was wrong to find he had no reasonable excuse, and that the judge had given more weight to the child's removal from school than to the risk of harm. The Full Court did not accept his arguments, and the contravention finding stood.

6 key points

1. Parenting orders are not optional. The Court treats contravention seriously. A parent cannot treat orders as suggestions because they are worried.
2. A "reasonable excuse" has two parts. Under s 70NAE of the Family Law Act, the parent must have reasonably believed the breach was necessary to protect the child, and the breach must have lasted no longer than necessary.
3. Allegations need evidence. Here the police laid no charges, the report writer found no risk, and the father produced nothing to support his claims. Belief alone was not enough.
4. Duration matters. Withholding a child for months, while waiting passively for a hearing, is very hard to justify as "only as long as necessary".
5. Act, don't just wait. A parent with genuine concerns should seek urgent directions or court orders. Self-help withholding without returning to court weakens any excuse.
6. Consequences are real. A contravention without reasonable excuse can lead to sanctions such as a good behaviour bond, and it may affect how the Court views that parent later.

Why this case matters for parents

This case may be relevant to withheld children, children not being returned after time, safety claims that were raised but never supported with evidence, and long periods of unilateral suspension of time. It helps in arguing that a claimed safety excuse must be tested against objective evidence and the duration of the breach.

Use with care

This case does not mean safety concerns never matter. A genuine, objectively reasonable excuse remains available where there is real evidence and the protective action is limited to what is necessary. Seek legal advice before withholding a child, and check the full judgment before relying on this case.

Read the full judgment on AustLII

Kilo 4 Delta — Family Court Case Law Explained. General legal information and case-law education only. Not legal advice. Parenting cases depend on their own facts, evidence and the best interests of the child. Seek legal advice about your situation.