The making of parenting orders aims to provides stability and certainty for families with the Court expected such orders to be followed. However, what happens when someone does not follow an order? A common misconception is that the orders will be enforced by the Police. If you wish to enforce parenting orders, a return to Court is unfortunately required.
Step 1: Dispute resolution
The Family Law Act provides that unless there are circumstances of urgency, a child is at risk of harm, or the parenting order was made within the last 12 months, you cannot immediately file an application in the Court without attempting dispute resolution such as mediation. If mediation is unsuccessful or the other person refuses to attend, you will then be issued with a Section 60I certificate which allows you to file a court application.
Step 2: Deciding what type of application to file
If dispute resolution is not successful, you must then decide what application to file. If you simply want the orders to resume as before an Application- Enforcement is appropriate. If you want the other party punished for the breach of the orders, an Application- Contravention is more appropriate.
Step 3: Attending Court and determination of the application
Once your application is filed, the Court aims to hear the matter within 14 days of the filing date. To succeed in an Application – Contravention you must satisfy the Court of two things:
The Respondent contravened the orders
This is simply proving that the other person did not comply with the orders. Compliance has been held by the Courts to be a positive duty – i.e., parents are required to actively take steps and encourage the child to spend time with the other parent.
The Respondent had no reasonable excuse for not complying with the orders
While a reasonable excuse is purposely kept vague to account for all manner of reasons why someone could not comply with an order, the Act does provide the following excuses:
- The Respondent contravened the Orders because they did not understand the obligations imposed by the order, and the Court is satisfied they ought to be excused.
- The Respondent contravened the Orders because they believed on reasonable grounds that the contravention was necessary to protect the health or safety of a party or the child, and the period over which the breach was extended was not longer than was necessary to protect those persons.
It should be noted that where parties were previously legally represented, a Respondent would have difficulty establishing they did not understand the orders.
As for the belief that they were protecting someone or was otherwise not in the best interests of the child, the Court has held that a Respondent’s subjective views about whether the order is right or wrong cannot be relied upon as a reasonable excuse. However, this is not to say that if circumstances change whereby the Respondent no longer believes it is in the next interests of the children for the orders to be followed, it would not be considered a reasonable excuse. What constitutes a reasonable excuse will turn on the facts of each case.
Step 4: Remedies the Court may impose
Following a Court determination and depending on the outcome, the Court can make a number of different orders:
- If the contravention is not proved the Application can be dismissed. If this occurs the Court must consider making an order that the Applicant pays part of the Respondent’s legal costs. The Court may also vary or change the parenting orders.
- If the contravention is proven and the Respondent is found to have a reasonable excuse, the Court may:
- Make an order for compensatory time. Importantly, such an order cannot just be retribution without regard to the child.
- Vary the parenting order.
- Order that the Applicant pays part of the Respondent’s legal costs.
- If the contravention is proven, the Respondent is found to have no reasonable excuse, and it is their first contravention or the breach is considered non-serious, the Court may:
- Make an order for compensatory time. Importantly, such an order cannot just be retribution without regard to the child.
- Vary the parenting order.
- Require the Respondent to attend a post-separation parenting program.
- Require the Respondent to enter a bond (or face a $1,100 fine) which may be breached if they do not attend a program or contravene the orders again.
- Order that the Respondent pays part of the Applicant’s legal costs.
- If the contravention is proven, the Respondent is found to have no reasonable excuse, and it is their second contravention or the breach is considered serious, the Court may:
- Make an order for compensatory time. Importantly, such an order cannot just be retribution without regard to the child.
- Make a community service order against the Respondent.
- Require the Respondent to enter a bond (or face a $1,100 fine) which may be breached if they do not attend a program or contravene the orders again.
- Order that the Respondent pay part of the Applicant’s legal costs.
- Fine the Respondent a maximum of $6,600 for each contravention.
- Impose a term of imprisonment on the Respondent of no more than 12 months.
Contravention applications are quasi criminal proceedings and there is the real risk an unsuccessful application will result in you paying the other party’s legal costs. Legal advise is essential. If you are facing difficulties in enforcing parenting orders or wish to change them, please contact our office on (02) 4944 3322 to make an appointment with one of our experienced family law solicitors.
