Breach of a DV Order – What is an “emergency”?
Often in family law matters regarding children, particularly where domestic violence is a factor, a court will make orders that a parent not be allowed to contact the other parent except in the event of an emergency.
The court recently considered the definition of “emergency” in this context.
The mother had a protection order (DVO) against the father. The court orders provided for the father to have time with the child, and also to have some telephone time. The orders otherwise stated the father was not to contact the mother, except in the case of an emergency.
An incident occurred at a changeover between the parties. The mother was late to the changeover point and had the 10 year old child call the father on the way. The father did not answer the phone as he was concerned about breaching the DVO and the court order. The child left a voice message on the father’s phone querying what time changeover was to occur, the father responded to this in a text message.
The child again called the father and left a voice message to say they were on the way to the changeover point. There were a few other text messages exchanged between the mother and the father following that call. The mother later reported the text messages to the police for the father’s breach of the protection order.
The court considered the usual dictionary definitions for “emergency”, being “an unforeseen occurrence; a sudden and urgent occasion for action”. The court determined that the father’s initial text message confirming the time for changeover was sent in an “emergency” and did not breach the orders. In circumstances where the mother was over 20 minutes late and hadn’t communicated with the father he was entitled to feel anxious and concerned and this constituted an emergency.
What may be considered an emergency will depend on the facts of each case, the surrounding circumstances of the communication in question and the content of the communication.