Australia: My ex will not comply with Parenting Orders – what are my options?

Last Updated: 7 July 2015
Article by Simon Creek

Parenting Orders

A Parenting Order is defined in section 64B of the Family Law Act 1975 ("the Act") and refers to a set of directions made by the Family Court in relation to:

  1. parental responsibility for a child;
  2. living arrangements for a child;
  3. time spent and communication with a child; and
  4. any other aspect of the care, welfare or development of a child.

There are three types of parenting orders:

  1. interim orders – which apply on a temporary basis until final orders are made;
  2. final orders – which apply from the end of Trial until the Court says otherwise, or until the child turns 18; and
  3. consent orders – which can be agreed by the parties and the Family Court at any time, and apply until the Court says otherwise, or until the child turns 18.

Contravention

Parenting orders create legal obligations and are legally binding. Failing to comply with parenting orders has consequences – these consequences are set out in Division 13A of Act. According to section 70NAC of Act, a party contravenes a parenting order if they:

  1. intentionally fail to comply with the order; or
  2. make no reasonable attempt to comply with the order.

In practice, parents can agree to depart from the terms of a parenting order as necessary. Notwithstanding any such agreement, a parenting order remains in force until a new parenting order changes it. For this reason, any agreement to depart from the orders (even on a "one off" basis) should be recorded in writing. Otherwise, the departure will be construed as a contravention of the orders if one party subsequently seeks to enforce the orders. In those circumstances, the written agreement to depart from the orders will be evidence of an excuse for the contravention.

If it becomes impossible or impractical to comply with parenting orders, then one or both parties should seek a variation to the orders as soon as possible.

Options for Dealing with Contravention

If the other party has breached a parenting order, then there are three basic options:

  1. Do nothing. If the contravention is minor, then it may not be worth pursuing. Alternatively, you can keep records and collect evidence of a number of breaches over time and seek to enforce the orders at a later date.
  2. Family Dispute Resolution can assist you and the other party to work through a disagreement about a parenting order. Family Dispute Resolution does not change the parenting orders, but it may alleviate the need to take the matter to court. Family Dispute Resolution is less costly than going to court, both financially and emotionally.
  3. Enforce the orders by a contravention application to the Family Court. This involves filing a Form 2 Application in a Case and an Affidavit. The other party will have an opportunity to file responsive documents before the court hearing.

Standard of Proof

Before you file a contravention application, you should have detailed evidence of a number of alleged breaches of the parenting orders, including dates of each contravention. Section 70NAF of the Act prescribes the standard of proof that you must meet:

  1. In general, you must prove that the other party contravened the parenting orders on the 'balance of probabilities'. That is, you must show that it is more likely than not that the other party contravened the orders.
  2. There is a higher standard of proof for the Family Court to consider imposing a prison sentence. You must establish that the other party contravened the parenting orders 'beyond reasonable doubt'. That is, you must satisfy the court that a reasonable person would not have cause to doubt that the contravention occurred.

If the contravention has been established, is there a reasonable excuse?

If the Family Court finds that the other party has contravened a parenting order, it will consider whether the person had a reasonable excuse for doing so.

Section 70NAE of the Act provides the following reasonable excuses:

  1. the party did not understand the obligations imposed by the order; or
  2. believed on reasonable grounds that the actions were necessary to protect the health and safety of the person (including the Respondent and the child);
  3. believed on reasonable grounds that not allowing the child and the person to spend time together or communicate together was necessary to protect the health and safety of a person (including the respondent and child).

What are the penalties?

If you do nothing when contraventions occur, then the penalty for the breaching party will similarly be nothing.

If you file a Contravention Application, then depending upon the outcome the penalties set out in Division 13A are available to the Court. In essence, if:

  1. you make a contravention application to the Family Court;
  2. the Family Court finds that the other party did contravene the orders; and
  3. there was no reasonable excuse for the contravention;
  4. then the Court will impose a penalty upon the other party in accordance with the penalties set out in the Act.

The range of penalties available to the Court depend on the nature and seriousness of the contravention – the Court may order the party who is in breach to:

  1. pay the other party's legal costs;
  2. compensate the other party for lost time with a child;
  3. attend a post-separation parenting program;
  4. undertake a community service order;
  5. pay a bond;
  6. pay a fine;
  7. face imprisonment; or
  8. vary the existing parenting orders.

If the other party is in breach of a parenting order and cannot be found, then the Family Court may make a location order under 67J of the Act. This order requires another person or organisation, including government departments; to give any information they have about where the other party may be located.

If the other party is in breach of a parenting order by failing to return the child as required, then the Family Court may make a recovery order under section 67Q of the Act. This is an order issued to the Marshal of the Courts and all Federal or State Police to find and return the child.

Examples of contravention cases

Saldo & Tindall [2013] FamCA 951

In the matter of Saldo & Tindall, the Father proved, on the balance of probabilities, that the Mother breached the orders by:

  1. failing to inform the Father of her contact details in writing;
  2. failing to deliver the child to the Father on 18 occasions, and stopping the child from spending time with the Father as stipulated in the orders; and
  3. failing to enrol the child at the designated child contact centre, which stopped the child from spending time with the Father as stipulated in the orders.

The Mother failed to show a reasonable excuse for her actions. The Family Court imposed good behaviour bonds on the Mother for each breach, totalling two years. Any breach of the good behaviour bond by the Mother would result in a financial penalty.

Carrington & Gunby [2013] FamCA 433

In this matter, the Mother ignored a parenting order for the Father to spend time with their five year old child twice a week. The Father filed contravention applications in relation to three breaches. The Court found that the breaches occurred and that the Mother did not provide any reasonable excuse.

The Family Court imposed a two year good behaviour bond on the Mother that expressly required her to comply with all current and future parenting orders. The Father was awarded "make-up" time with the child.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Simon Creek
 
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