Breaching a parenting order is a serious matter. As a parenting order is a court order, all parties involved must comply it with. Non-compliance with a parenting order can have harsh ramifications including, but not limited to, fines and imprisonment in serious cases.
What are parenting orders?
Parenting orders are orders that are made by the Family Court of Australia or the Federal Circuit Court of Australia. They set out mandatory parenting arrangements for a child. These orders can come about in two ways. Firstly, if you and the other parent (or other people such as grandparents in some circumstances) agree on parenting arrangements for your children, you can have your family lawyer draw up an agreement and apply to the court for consent orders. Alternatively, if you cannot come to an agreement with the other party, a Judge may make parenting orders usually after a very long court process.
A parenting order can govern a number of issues, including the following:
It must be noted that the court will consider the best interests of the child as the ‘paramount consideration’ for making parenting orders.
Your legal obligations
As mentioned previously, a parenting order is a court order. This means that all parties who have been ordered to do something must do so. You must take all reasonable steps to ensure that you comply with the parenting order. You must also actively encourage your children to follow the provisions in the orders. For example, if the parenting order states that a child must spend every second weekend with their mother, then you must actively encourage them to do so and ensure that they are available to do so.
A parenting order only expires when new orders are made, a subsequent and inconsistent Parenting Plan is agreed or when the child reaches the age of 18. However, when children are in their teenage years, it becomes increasingly likely that they will determine their arrangements for themselves.
You must comply with the orders until one of these changes occur. If your, your child’s or the other party’s circumstances change and you have agreed on certain changes to the parenting order, you should seek specialist legal advice as soon as possible.
If the parties to the order cannot agree upon changes, then they can seek family dispute resolution to assist them in coming to an agreement. By keeping your matter out of the court system, you can save time, money and the stress of arguing in court. If you still cannot agree, you can file the matter in court.
What to do if a parenting order has been breached
If a parenting order has been breached, the only way to have the breach penalised is for another person to file an Application – Contravention alleging the person did not comply with the order.
Once an Application – Contravention has been filed and is to be heard, the court will consider the allegations and facts of the case before applying the relevant law. The court may decide that:
i. the alleged contravention was not established; or
ii. the contravention was established but there was a reasonable excuse; or
iii. there was a less serious contravention without reasonable excuse; or
iv. there was a more serious contravention without reasonable excuse.
If the court finds that the alleged contravention was not established, the court may order the party who filed the application to pay all or some of the costs of the other party to the proceeding.
If the contravention was established but with a reasonable excuse, the court may order the party who filed the application to pay all or some of the costs of the other party to the proceeding.
The court also has the power to vary the parenting orders. In practice this power is used sparingly, and generally used to correct a problem with the mechanics of an order rather than to substantively change the provisions of an order.
Consequences of breaching a parenting order without reasonable excuse
If the court finds that you have breached a parenting order without reasonable excuse, they may take the following actions:
i. Order the person who committed the contravention to attend a post-separation parenting program; or
ii. Make a further order to compensate for time lost with the child; or
iii. Make an order for the person who committed the contravention to enter into a bond. This bond may have conditions such as requiring the person to attend family counselling or see a family consultant; or
iv. Order that the person who committed the contravention pay all or some of the costs of the person who brought the proceedings; or
v. Fine the person who committed the contravention; or
vi. Sentence the person who committed the contravention to a term of imprisonment.
It is important to bear in mind that the court may take one or several of the above mentioned penalties.
How to file an Application – Contravention
It is important that you seek legal advice prior to filing an Application- Contravention. You will need to file several supporting documents with your application. Your solicitor can help you to gather and prepare the required information. You will need to include the following:
i. The Application- Contravention form; and
ii. The parenting order that is alleged to have been breached; and
iii. An affidavit; and
iv. A section 60I certificate or an Affidavit of Non-Filing of Family Dispute Resolution Certificate. This certificate is needed to exempt you for the Dispute Resolution Process.
Our team is headed by an Accredited Specialist in Family Law, and so you can be certain we will provide you with the skill and expertise you require.
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