When a relationship that has produced children comes to an end, the ideal situation is that the separating parties can come to a civil, sensible agreement on how their children should be raised, where they live, how much time they spend with each parent and any other aspect of their care, welfare or development.
Unfortunately, such an agreement is not always possible. Many separations are characterised by acrimony and high emotion, which can not only endure but be exacerbated when the ex-partners have to work out arrangements for the children from the relationship.
In these situations, it may be that the Family Law Court is required to make a parenting order which both parents must abide by. The court can also make a parenting order based on an agreement reached between the parties, known as a consent order. A parenting order made by the Court creates legal obligations which are binding. The consequences of disobeying or contravening a parenting order can range from mandatory attendance at a parenting program, for less severe contraventions, to terms of imprisonment for repeated breaches of the orders.
If you are in a situation where an ex-partner is not complying with a parenting order, it’s highly advised you seek legal advice. We can advise you on the next steps you should take and help avoid the possibility of conflict and even violence that can arise when one parent repeatedly breaches parenting orders.
More detail on observing parenting orders
Under the Family Law Act 1975, the Court can make a parenting order which deals with one or more of the following:
- who the child/ren will live with;
- how much time the child will spend with each parent and with other people, such as grandparents;
- the allocation of parental responsibility;
- how the child will communicate with a parent they do not live with or other people;
- any other aspect of the care, welfare or development of the 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.
In practice, this requires that if the children are with you and the time comes for handover to the other parent, you must make sure the children are available to go with them and also positively encourage the children to do so.
What is required to change an order?
A parenting order remains in effect until a new order is made formally by the Court or a mutually agreed parenting plan changes or replaces it. Often one parent will informally try and change the parenting orders (varying the time of pick-up or drop-off of the children, for example). Acting on this proposed change is a contravention of the order.
Where one parent seeks to make a change to the parenting order, even if it is a ‘one-off’, you should record the instance in writing as it may be required later in order to demonstrate how that parent breached the order. You should do this whenever your ex-partner’s actions diverge from the parenting order.
Sometimes a parenting order becomes no longer fit for purpose. One or both parents’ circumstances may change, such as when they move location, gain a new partner, or have a new child. A variation of the order can be sought from the court if the current order becomes impossible or impractical to comply with.
What should you do once your ex-partner contravenes a parenting order?
Once you believe your ex-partner is failing to comply with the parenting order, your next steps depend on the seriousness of their breach.
If their non-compliance is minor in nature, such as one day failing to return your child to you at the set time by 15 or 30 minutes, it may be wisest to make a note of the incident in case you later need it to show evidence of repeated breaches.
Where there are repeated and//or serious contraventions of the order, more strident action may be required. This might begin with family dispute mediation in order to investigate why the other parent is repeatedly breaching the order and to avoid the need to go back to court. Is there a reasonable excuse, such as a work commitment? Is there common ground on changing or varying the terms of the order so that the other parent can avoid further non-compliance?
Should mediation prove unsuccessful, the parent seeking compliance from their ex-partner has the option to apply to the Family Court to enforce the orders by filing a Form 2 ‘Application in a Case’ and an affidavit detailing your grievances. The other party will also be able to respond before the court hearing.
For serious and repeated breaches of the order, an ‘Application – Contravention’ form should be filed. This should be undertaken with proper legal advice because the potential consequences for the other parent are more severe penalties.
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.
To prove this is the case regarding the other parent, you must meet the standard of proof set out in Section 70NAF of the Act. The Court will assess the breaching party’s contraventions on the ‘balance of probabilities’, meaning your evidence that the other parent did not comply with the parenting order must show that they are more likely than not contravened the orders.
For serious breaches which may attract a prison sentence, such as the indefinite removal of a child to another location or overseas, the court must be satisfied with the higher standard of proof beyond a reasonable doubt that the contravention occurred.
The ‘reasonable excuse’ defence
Under Section 70NAE of the Act, the parent alleged to have breached the parenting order may call on these 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).
What penalties can the court order?
After the Court considers all the facts in the case, it may find that:
- the alleged contravention was not established;
- it was established but there was a reasonable excuse, as per the defences listed above;
- there was a less serious contravention without reasonable excuse, or
- there was a more serious contravention without reasonable excuse.
The Court will impose a penalty if it finds one parent has failed to comply with a parenting order without reasonable excuse, or a more severe penalty if the order was disobeyed multiple times.
The penalties are listed in Division 13A of the Act and can include:
- varying the primary order;
- ordering the non-complying parent to attend a post-separation parenting program;
- compensating for time lost with a child as a result of the contravention;
- require the parent to enter into a bond;
- order them to pay all or some of the legal costs of the other party or parties;
- order them to pay compensation for reasonable expenses lost as a result of the contravention;
- require the parent to participate in community service;
- order the parent to pay a fine;
- order them to a sentence of imprisonment.
The Court may also adjourn the case to allow you or the other party to apply for a further parenting order, or to negotiate a new parenting agreement.
Speak with the experts
If you are in a situation where you believe your ex-partner is in contravention of the parenting order covering your children together, it’s important to avail yourself of expert legal advice to protect and understand your legal rights and responsibilities.
Australia Lawyers is a network of lawyers across Australia with strong expertise, experience and proven track records. We can connect you to the best family lawyers in most major cities in Australia including, Canberra, Newcastle, Dandenong, Adelaide, and Perth.