SA contravention hearing. question over reasonable excuse

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gunnerzzzz

Well-Known Member
8 March 2020
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I have an upcoming contravention hearing about the child being withheld from myself.

reasonable excuse is obviously very vague, but what would be a general guide for the level of proof the other party have to prove too meet the minimum of such.

The issue in particular in question here is the breacher alleges I was homeless. States 2 family members of mine called her. The other side has never provided anything, even a phone bill showing calls occurring. I have already proven one did not, as they stated in a sms message to myself they never called. The other I have not spoken too in 3 years by their choice and has no clue about my living circumstances nor is involved or approached for advice in relation to the child.

So my question here is.... like if alleged events did in fact occur it would be reasonable to assume the child welfare would be at risk, thus reasonable then. But what level of proof does the other party need to provide to back up such claims. The description of reasonable excuse mentions nothing about fact or proof.

I have also already provided affidavits from others stating I was not homeless, and even had to move from the joint accommodation with a friend into my own now more expensive residential property just to have a tenancy agreement because all information about such previous residential details where given to them that they ignored. That was the only way to force them to give back the child. I mean I could have waited for the court technically, but Its already been 6 months since the breach occurred. If left to the court, I still wouldn't have the child.
 

Atticus

Well-Known Member
6 February 2019
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The issue in particular in question here is the breacher alleges I was homeless.
My thoughts....

No set criteria for reasonable excuse.... These things are decided on balance if probability principal..... The one excuse that usually will be held to be reasonable is if the withholding parent (WP) has done so to protect the child from physical or psychological harm, & the court accepts that there was that risk .... If a WP is to rely on that as a reasonable excuse, it's also generally accepted that the withholding period should only be for as long as that risk exists, & that normal contact be restored immediately after risk is no longer exists..

I guess basically then it's going to be up to the judge to decide if the whitholding was first of all justified, & that if it was, that it didn't carry on any longer than necessary
 

Tim W

Lawyer
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28 April 2014
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Proof that an excuse is reasonable lies with the person claiming it.
 

gunnerzzzz

Well-Known Member
8 March 2020
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Thanks for the feedback guys.

Tim W, so without much understanding on you're side which will obviously be difficult.... so I can try and streamline thoughts preparing for the hearing, what sort of minimuim expectation of proof would the court be expecting them to make?

So far all they have said is two people called her. 1 of which I don't talk to at all and knows nothing about my life, the other has denied calling her and I have submitted that to the court already?

Too expand a bit, I mean.... the other parent has a phone plan. Gets bills. Would be fairly easy in any of the 2 affidavits submitted so far to attach a phone bill showing at least any calls occurred for instance. but hasn't.
 

Atticus

Well-Known Member
6 February 2019
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Being the applicant, you just have to prove the contravention took place... seems they are not saying it didn't .... then up to the respondent to prove (to the satisfaction of the judge) that there was a reasonable excuse... honest belief may be enough, who knows, as I said, balance of probability principal ... That said, they would also have to prove (again to the judges satisfaction) that the contravention did not go on any longer than they honestly believed necessary to protect the child from harm .

If they have past form in withholding at the 'drop of a hat', that may raise concerns in the judges mind (in your favour) as to balance of probability in this contravention