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  • 15Jun

    My former partner is not complying with parenting orders - Help!

    Section 64B of the Family Law Act 1975 (Cth) outlines that a parenting order is an order dealing with aspects relating to whom a child is to live with, time the child is to spend with another person, allocation of parental responsibility, if two or more persons are to share parental responsibility for a child the form of consultations those people are to have with one another about decisions to be made, communication the child is to have, maintenance of the child and further administrative stipulations.

    What form can parenting orders take?

    Such parenting orders can take one of three forms:

    1. Interim orders: which apply on a temporary basis until final orders are made by the court.
    2. Final orders: which apply from the conclusion of a trial until such time as a party may seek to vary otherwise or until the child has reached the age of 18 years.
    3. Consent orders: which can be agreed by the parties and the court at any time and again apply until such time as the court seeks to vary otherwise or the children relevant to the orders reach the age of 18.

    So what effect does a parenting order have?

    The effect of parenting orders is that it creates legal obligations upon the parents which in turn is legally binding. If a party fails to comply with such parenting orders there are very real consequences.

    These consequnces are detailed in Division 13a of the Family Law Act 1975 (Cth), which sets out consequences of failing to comply with orders and other obligations that affect children. Specifically section 70nac Family Law Act 1975 (Cth) defines that a person is found to be in contravention of a parenting order when a person has intentionally failed to comply with an order, made no reasonable attempt to comply with the order or otherwise has intentionally prevented the compliance with the order by a person who was bound by it or aided or abetted contravention of the order by a person who is bound by it.

    In principle parents can however agree to depart from the terms previously set down in their parenting orders as they see fit. However, without such agreement a parenting order remains in force until a new parenting order is sought that changes it. Even in circumstances where the parties may decide to depart from orders on a one off basis all such variations should be detailed in writing. This should be done to best ensure that any such departure can be construed as a contravention of the orders if one party subsequently seeks to enforce the orders.

    But how do I deal with a contravention of parenting orders?

    If your former partner has been found to have breached current parenting orders the following options could be available to you:

    1. Do nothing at all - Whilst this may seem like an unhelpful response at times such a minor contraventions may not be worth pursuing. However, if further minor breaches continue to occur it is worth noting these occasions and later seeking to enforce the parenting orders.

    2. Mediation – attending a family dispute resolution (mediation) can assist the parties in working through any disagreement they may have in relation to the parenting orders. Whilst the family dispute resolution does not change the parenting orders it may alleviate the need to take the matter to court. A further advantage of this is that it can  prove to be a far less costly approach than if you were to enforce such orders.

    3. Contravention application – this is the most direct and serious approach to dealing with a contravention. The process involves the filing of a form 2 application and a supporting affidavit. Once this application has been filed the other party will then have the opportunity to file a response to this and further supporting documents to the court.

    What is entailed in a contravention application?

    At this point, it is important to seek the assistance of one of our helpful Family Law solicitors at Marsdens Law Group.

    Before filing such an application you should ensure that you have evidence supporting your contravention application and detailing the breaches of parenting orders where possible including dates and documentation of the events. Under Section 70NAF of the Family Law Act 1975 (Cth) sets out that the standard of proof to be applied in determining a contravention of orders,  is the balance of probability.

    Now that a contravention has been established does a reasonable excuse exist?

    The court may find that the other side has in fact contravened the parenting orders. However, there may be a reasonable excuse for doing so. Section 70NAE of the Family Law Act 1975 (Cth) provides that a person is taken to have had a reasonable excuse for contravening an order affecting the children if they contravened the order because they did not understand the obligations imposed by the order, the court is satisfied they ought to be excused in respect of the contravention or there are reasonable grounds that the contraventions were necessary for the health or safety of the person including the respondent or the child. Or rather, the parent did so on reasonable grounds as it was necessary to protect themselves and the safety of their child.

    What are the consequences of breaching a parenting order?

    There are a number of penalties available to the court if a party is found to have contravened a parenting order without a reasonable excuse. The court may impose that the party pay the legal costs of the applicant, compensation or provide make up time for the lost time spent with the child, parenting programs, community service orders, pay a bond or fine. The court may even in worse case scenarios ordering of imprisonment or the varying of the existing orders.

    What if I don’t know where my child has been taken?

    In cases where the respondent and/or child cannot be found the court may order a location order pursuant to section 67J of the Family Law Act 1975 (Cth). 67J sets out that a location order is an order made by the court requiring a person to provide the Court’s with information that the person or body has or obtains about the child’s location.

    Alternatively if the respondent is in breach of a parenting order by failing to provide the child as required under the orders, the court may make a recovery order pursuant to section 67Q of the Family Law Act 1975 (Cth). A recovery order is an order made by the court requiring the return of the child to a parent of the child or a person to whom the child lives with pursuant to the Orders and further authorising or directing persons or persons with such assistance as he or she requires if necessary by force to stop search any vehicle vessel or aircraft and to enter and search any premises or place for the purpose of finding the child.

    In Context

    The case of Carrington and Gunvy 2013 FamCA 433. The mother in this matter ignored parenting orders that sought the father was to spend time with his child twice a week. The mother did not allow for this to occur.

    The father filed a contravention application. The court found that the breaches did occur and further the respondent mother failed to provide any reasonable excuse for such contravention. The court imposed upon the mother a two year good behaviour bond which explicitly required her to comply with all current and any future parenting orders. Further to this the father was awarded make up  time with the child in response to the mother’s failure to originally provide the child to him as per orders.

    Conclusion

    When your former partner fails to comply with parenting orders it can indeed be frustrating and stressful time for you. However, what is apparent is that there are a number of options available to you to address such concerns.

    If you find yourself in such predicament you can contact Nevine Youssef Partner and Accredited Family Law Specialist on 02 4626 5077 or nyoussef@marsdens.net.au

    The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

Marsdens Offices