Unlike parenting plans where two people whose relationship has ended decide between themselves the best way to raise their children, parenting orders are handed down by a court and have an altogether difference consequence if they are not complied with.
For a start, parenting orders create legal obligations and are legally binding. If either parent contravenes a parenting order, there are penalties within the Family Law Act that apply. Depending on the severity, frequency and intent with which a parenting order is disobeyed, sanctions can vary from being made to attend a parenting program through to a prison term for repeatedly breaching the orders.
There are also ‘reasonable excuses’ a parent in contravention of a parenting order can cite. Parenting orders can also be changed or varied with the agreement of both parents if an order/s from the original decision later proves impractical due to the living situation of either party changing.
In any of the circumstances discussed above, legal advice should be sought to ensure you are taking the right course of action. When an ex-partner fails to comply with parenting orders, it can frequently become a flashpoint that revives old enmities and domestic battles at a time when you’re trying to move on with your life.
What are parents’ obligations under parenting orders?
Parenting orders made under the Family Law Act relate to:
- parental responsibility for a child;
- living arrangements for a child;
- time spent and communication with a child; and
- any other aspect of the care, welfare or development of a child.
Once orders are handed down by the court, both parents must take all reasonable steps to ensure that the order is put into effect. This means, for example, that where the order sets out the times and dates that the children must spend with the other parent, you must not only make sure the children are available to do so but also positively encourage the children to comply with the orders.
When one or both parents’ circumstances change – they may move, or gain a new partner, or a new child – and the current parenting orders become impossible or impractical to comply with, then parents can seek a variation to the orders. But a parenting order remains in force until a new parenting order changes it and so any ‘one off’ agreements to depart from the orders should be recorded in writing. Otherwise, the failure to comply with the orders will be construed as a contravention when one parent subsequently seeks to enforce the orders.
What you should do if a former partner contravenes parenting orders
There are three basic options where the other party fails to comply with parenting orders, depending on the seriousness of their breach.
If their contravention is minor, such as missing a time set for return of a child by 30 minutes or so, it may be best to just record the breach in case it is required as evidence at a later date should the breach become a habit. If there is a more substantial or repeated breach of disagreement about the parenting orders, the services of a family dispute mediator may be required. They can help both of you find a solution that avoids the need to go to court, though you do both need to pay for the mediation. If neither of the first two actions is sufficient, you may need to seek the Family Court to enforce the orders by filing a Contravention Application and an Affidavit detailing your grievances. The other party will also be able to respond before the court hearing.
Section 70NAC of the Family Law Act sets out the circumstances in which a party contravenes a parenting order, where they:
- intentionally fail to comply with the order; or
- make no reasonable attempt to comply with the order.
If you are alleging your ex has breached the parenting orders you must have kept detailed evidence of the instances of breach and you must meet the standard of proof set out in Section 70NAF of the Act.
Most contraventions will be assessed on the ‘balance of probabilities’ where your evidence must show the other parent more likely than not contravened the orders.
For serious and repeated breaches, such as the indefinite removal of a child to another location or overseas, the higher standard of ‘beyond reasonable doubt’ is required. The court must be satisfied that a reasonable person would not have cause to doubt that the contravention occurred.
Under Section 70NAE of the Act, the parent alleged to have breached the parenting orders can cite the following reasonable excuses for the court to consider in their defence:
- They did not understand the obligations imposed by the order;
- They believed on reasonable grounds that the actions were necessary to protect the health and safety of the person (including the other parent and the child);
- They 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 other parent and child).
A court’s decisions and penalties
The court has wide powers to ensure parenting orders are enforced where they find one party has not complied with them. The court may find that the alleged contravention was not established; that it was established but there was a reasonable excuse; that there was a less serious contravention without reasonable excuse, or that there was a more serious contravention without reasonable excuse.
If a court finds that you have failed to comply with a parenting order without reasonable excuse, it may impose a penalty. Where a parent disobeys an order multiple times, or the court thinks that parent is ignoring the parenting order, more severe penalties may apply.
The penalties are listed in Division 13A of the Family Law Act and can include:
- Varying the primary order;
- ordering you to attend a post-separation parenting program;
- compensating for time lost with a child as a result of the contravention;
- require you to enter into a bond;
- order you to pay all or some of the legal costs of the other party or parties;
- order you to pay compensation for reasonable expenses lost as a result of the contravention;
- require you to participate in community service;
- order you to pay a fine;
- order you to a sentence of imprisonment.
A court may also adjourn the case to allow you or the other party to apply for a further parenting order.
The importance of good legal advice
As mentioned at the outset, parenting orders are legally enforceable obligations. If you believe the other parent is in contravention of the orders, you should seek expert legal advice to inform you of your legal rights and responsibilities before taking any other action.
Experienced family legal professionals such as Twohill Lawyers can provide confidential, understanding and relevant advice which can help save you time and money in ensuring that the other parent meets his or her obligations under the parenting orders. Contact us today for a no-obligation initial consultation on (07) 5571 1450.