The Orders are in place. But my former partner isn't complying. What next?

29 MAY 2018

 

Parents who are bound by Parenting Orders must ensure that they take all reasonable steps to comply with such Orders.  That goes without saying.  But, how does the Court ensure that parties to such Orders comply with them?  
 
Both Court and the Police generally do not manage whether to Parenting Orders are followed.  But in the event of a Contravention the common approach encouraged is that the parties undertake Dispute Resolution to resolve any issues that have arisen or may arise.  If such Dispute Resolutions are unsuccessful a party might seek to make an Application to the Court to deal with such issues and further vary the current Orders if necessary.  
 
A person contravenes an order that is binding if they intentionally fail or make no reasonable attempt to comply with the order.  
 
With this in mind, a person must not, aid or abet the contravention, remove the child from the care of the person, refuse or fail to deliver a child to a person, exercise or perform of any powers, duties or responsibility to the person has under that order, hinder or prevent a person or child from spending time together in accordance with an order, hinder or prevent a person and child from communicating with each other in accordance with the order, interfere with the communication that a person and the child is supposed to have with each other under an order or interfere with a person and a child benefitting or spending time with a person under that order. 
 
A person is considered to have breached a Parenting Order, if: 
 
  • they breach such an Order intentionally,
  • do not make reasonable attempts to comply with such Orders,
  • prevent a party who is bound by the Orders from complying with them,
  • or assist a party who is bound by such Orders to breach them.   
     
Section 70 NAE of the Family Law Act 1975 Commonwealth sets out instances that a Court may consider if there is a reasonable excuse available including:
 
  • The party failed to understand their obligations under the Parenting Orders.
  • The person believes such contravention was necessary to protect the health and safety of the person.
     
If the Court upon reviewing such evidence considers that there was indeed a reasonable excuse for the contravention and can in turn consider and make the following Orders including:
 
  1. Parenting programs;
  2. Make up time; or
  3. Further amending the current Parenting Orders to better reflect a more practicable and workable arrangement.
     
The case of Osman & Bells [2017] FCCA 1152 details is an example of the above in application. The facts of the case are as follows:
 
The father lodged an application to the Court alleging that the mother had contravened parenting orders relating to Christmas holidays without a reasonable excuse. The mother admitted that she withheld the children from spending time with the father but did so because she wanted to protect the health or safety of her children. 

The mother heard the father explode with anger when the children were with him one weekend and there was a scene and police involvement. In other instances, the father had engaged in intimidating behavior, made threats to kill adults and children, and called the mother demanding to pick the children up on several occasions. 

The father defended himself by saying the children were being disrespectful which caused him to get angry but the Court concluded that he could be a dangerous man and an irresponsible parent, based on the evidence supplied by the mother. Accordingly, the Court was satisfied the mother had a ‘reasonable excuse’, pursuant to section 70NAE of the Family Law Act. 

If you seek more information about relocation after separation, please contact Nevine Youssef from our Family Law Department on (02) 4626 5077 or by email at 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.

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