Courts decry ‘frivolous’ argument made by father found guilty of refusing access to children

A court of criminal appeal has labelled arguments presented by a man found guilty of refusing access of his children to the mother as “frivolous”, stating that a failure on his part does indeed amount to refusing access.

The case deals with a complaint filed by the mother on 10 October 2016 over a failure of the father to respond to her text messages in a timely manner, meaning that she could not see her children that day.

On 8 February 2017, the court of criminal judicature delivered a judgment, finding the man guilty and ordering him to pay a fine worth €100.

One week later, the father filed an appeal, asking the courts to revoke the initial judgment. He felt that the first court had interpreted the facts of the case incorrectly.

During the appeals trial, the court heard how on the day in question, the mother texted him around one hour and ten minutes in advance to say she would be picking up their children, in accordance with the stipulated time in her visitation rights. The appellant failed to reply, however it has been noted that this has become customary between the pair.

Upon arriving, and several times after that, the mother continued to message the father to say she was outside his house. After some 40 minutes, and with a frustrated six-year-old in the car, she gave up and drove off. Two minutes after driving away, she receives a text message but could not see it immediately because she was driving. While stationary in traffic, just a few minutes later, she saw that the father had messaged her to say she could collect the children.

She noted, which both the first court and the court of appeal agreed with, that it was so late in the day she would only have a few moments with her children before having to drive them back. She would have had two hours to turn back, pick up the kids, enjoy some time with them, and then drive them back home.

During her testimony before the court of criminal appeal, she told the court that she had not seen her daughter for more than 95 days and decided enough was enough by filing the police complaint.

On his part, the father testified that on the day in question, he had been cleaning the house together with his children. He said the children informed him that the mother was abroad, and that he had not realised she had messaged him. He said that as soon as he realised, he immediately messaged her back. He claimed to have no recollection of ever advising the mother not to ring the doorbell.

The court declared that had the father truly been misinformed about his former partner being abroad, then he should have verified directly with her upon hearing the information from his children.

Furthermore, the court agreed with the mother’s justification for not turning back for the children once receiving the go-ahead from the father, as this would “have left her with just a few moments with the children, apart from the fact that her six-year-old had been in the car all that time and crying”.

While the man says he has no recollection of telling the mother to never ring the doorbell, the court concluded that it would be upholding the first court’s acceptance of the mother’s version of events. This was backed up with a subsequent text message she sent to the father on the day in question where she said “you specifically told me not to and I didn’t want you making another scene in front of the kids”.

The appellant argued that he did not hear his mobile, while the court upheld the reasoning of the initial judgment that it was the father’s decision to leave it on low volume or none at all.

He went on to argue that the failure on his part is not tantamount to refusing access to their children, however the court of appeal said:

“With [all] due respect, this reasoning is frivolous in that there need not be an outright and express refusal and a no-show in such matters and that the actions of the appellant can be interpreted as a refusal.”

The court ultimately rejected his appeal.