It can sometimes cost parties significant time and money to achieve final Orders setting out the arrangements for your children, and so when your ex (or another party to the Orders, such as the children’s grandparent) doesn’t follow the Orders it can be quite disheartening.
If you think your ex isn’t complying with the Orders, we suggest the following:
STEP ONE – Establish what the Orders actually are:
This sounds easier said than done, but when you think about Orders such as “changeover on the middle day of the school holidays” or “pick up from after soccer training”, the actual days, times and places to which the Orders apply can become blurred and confused. This is especially the case if you and your ex have been flexible with the Orders and not following the terms of the Orders to the letter.
STEP TWO – Consider what, if any, reasons your ex has offered for failing to comply with the Orders:
For example, has your ex failed to comply with the Orders because they did not understand the Orders, or will your ex allege that they did not or will not follow the Orders because they are afraid you will cause harm to the children or your ex? Perhaps your ex (and maybe you too) do not believe the Orders are working for the parents or the children anymore.
STEP THREE – If it seems your ex is not complying with the Orders do they not understand the Orders? Or do they not believe the Orders are working for the parents/children anymore?
In such cases, a family dispute resolution mediation might assist you to either confirm the current arrangements and ensure ongoing compliance, or if you consider it appropriate, you and your ex might vary the Orders to better suit the ongoing needs of the family. At Baker Love, we have practitioners experienced in family dispute resolution and focused on achieving desirous outcomes through less expensive methods.
STEP FOUR – Perhaps you consider your ex is intentionally and/or maliciously breaching the Orders:
If the Orders are more than 12 months old, you are still required to attempt family dispute resolution mediation before filing an application for contravention (unless the circumstances are urgent or mediation is otherwise not suitable). If the matter is not resolved at mediation, you can make an application for contravention in the Federal Circuit Court.
When applying to the Court, you must make out your case ‘on the balance of probabilities’ which is a burden of proof lower than ‘beyond all reasonable doubt’. Although, if you seek more serious penalties for the contravention (such as imprisonment), the Court may only make such an Order if it is satisfied beyond reasonable doubt that the grounds for making the Order exist.
Even if you are able to make out your case, your ex will have an opportunity to raise a defence such as ‘reasonable excuse’. For example, if your ex alleges they did not send the children to spend time with you because the children were at risk of harm in your care, your ex will need to produce evidence in support of this allegation as the burden of proof will shift to them to show that their fears were ‘reasonable’. In a recent appeal case of Tindall & Saldo (2015) FamCAFC 1, the Full Court discussed what evidence is required to prove that a contravening party’s fears are ‘reasonable’. Ultimately the Full Court overturned a Newcastle Family Court Judge’s decision and held that a mother’s fears were ‘reasonable’ because the family dynamics had significantly changed since the Orders were originally made.