As government restrictions resulting from the COVID-19 pandemic easing, many families are starting to resume travel. A common question that separated parents often ask is whether they can travel with their children following a separation, and if there are any restraints on travelling.
Like all families, when travelling overseas or interstate, there are certain matters that separated families need to consider. Below we address some frequently asked questions when travelling with children from separated families.
Question: Can I travel with my children after separation?
The ability to travel with your children is largely dependent on the care arrangements that are agreed between the parents. If your parenting arrangements are subject to a Parenting Plan, it might stipulate how travel will occur and what information needs to be shared. If your parenting arrangements are subject to parenting Orders, then the Orders may include provisions relating to travel such as when you are permitted to travel with your children, how long you can travel for and what type of notice and information you need to provide to the other parent. It is important to comply with any Orders in this regard to ensure that you are not contravening any Orders.
A word of caution, penalties can apply if a person travels internationally with a child whilst parenting proceedings are on foot in the Court unless it is pursuant to Orders or there is certain consent given. This also applies to situations where Parenting Orders are in place. If your parenting arrangements are not subject to parenting Orders, then it may still be important that you provide notice to the other parent of your intention to travel with the children. This will promote good co-parenting and keep the lines of communication open.
It is not uncommon for a parent to feel reluctant for their children to travel. This may be due to a variety of reasons such as concerns for their personal safety, that they may miss the chance to spend time with the children or perhaps that the children may miss school or other important events. It can be essential to address any concerns that the other parent may have so that these concerns can be alleviated.
Question: What notice and information do I need to provide to the other parent before we travel?
If you want to travel with the children, you should consider providing the other parent with notice of your intention to travel if it is safe to do so. Such notice should ideally be provided well before your intended travel dates and should generally contain information such as a detailed itinerary for the planned travel, including flight times, a copy of a return flight confirmation and contact details such as an address and a telephone contact number for the children as some examples.
If there is a parenting Order or a Parenting Plan in place, then it is important that you check these documents to confirm what information you need to provide to the other parent as there may be certain requirements in this regard. It is important to contact a suitably qualified lawyer if you are unsure of your obligations pursuant to any Orders or Parenting Plan.
Question: How do I get a passport for my children?
Typically speaking, if both parents share parental responsibility, then both parents will need to sign any and all documents necessary to facilitate the production of an Australian passport and any renewal for such passports. If there is an Order for sole parental responsibility, then the other parent may not be required to sign any documents. Again, it is important that you review any parenting Orders or Parenting Plans and seek legal advice in relation to the meaning of these Orders if you are unsure.
Question: What happens if the parents are unable to reach an agreement about travel?
If the other parent is not agreeable to you travelling with the children, you can attempt family dispute resolution or mediation with respect to this issue. If you are still unable to agree, then the parent wishing to travel with the children may need to make an application to the Federal Circuit and Family Court of Australia (Division 1) or Federal Circuit and Family Court of Australia (Division 2) to determine this issue. If the Court deems that it is in the best interests of the children to travel overseas, then the Court can make an Order that the children can travel overseas without the consent of the other parent.
Question: I am concerned that my partner will remove the children from Australia without my consent. What can I do?
If you are concerned that your children may be taken overseas without your consent, you can apply to the Court to have the children placed on the Airport Watch List, otherwise known as the Family Law Watchlist. The Airport Watch List is maintained by the Australian Federal Police and is designed to prevent listed children from travelling overseas without your consent or an Order from the Court. The Airport Watchlist essentially alerts Police in the event that a person tries to remove the children from Australia. In this case, the children will be stopped at the airport and will not be allowed to leave the country. Generally, you may apply to place your children on the airport watch list in certain circumstances, including when:
- A court has issued an Order limiting or preventing the children’s travel;
- A Court has issued an Injunction limiting or preventing the children’s travel;
- There is an application before the Court seeking to limit or prevent overseas travel of the children;
- There is an application before the Court seeking an Order to place the children on the Family Law Watchlist; and/or
- An Order or Injunction is limiting or restricting the children’s travel overseas which is under an appeal.
If you are concerned that your children may be taken overseas, you should seek immediate legal advice. There are other measures that can also be taken.
Question: Can I travel with my children if their names are on the Airport Watch List but both parents agree for the children to travel?
If your children are on the Airport Watch List, then it is strongly recommended that you discuss any intended travel with a suitably quailed lawyer before you travel. This is to ensure that you are aware of any potential issues that may arise when you travel. If your children’s names are registered on the Airport Watchlist and both parents consent to the children being taken out of Australia, then you will need to remove your children’s names from the Airport Watchlist before you can travel outside of the country. This is an important step which can be overlooked and can be costly and disappointing when travel is already booked. If you wish to remove your children from the Airport Watchlist, and their names were placed on the list as a result of a court Order, you will generally require a further Order removing the children from the Airport Watchlist
Question: My former partner has taken our children overseas without my consent. What can I do?
In circumstances where the children have already been removed from the country without the other parent’s consent, urgent processes can be initiated for their return. This can include an urgent application under the Hague Convention when children have been taken to a country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention is an international treaty that provides a pathway to recover children who have been abducted so that they can be returned to Australia, or their home country. Not all countries are signatories to the Hague Convention. If your child has been taken overseas without your consent, you should seek urgent expert legal advice. Any delay may impact on your chances of success.
It is important that you understand your rights and obligations if you are planning on travelling with your children. Make an appointment with Shannon Daykin, an Accredited Family Law Specialist, to discuss your circumstances and needs.
It may come as a surprise to some that when a relationship ends, one party might still be compelled to make a lump sum or ongoing payments to support their former spouse. Even if you do not have children with your former partner, you may still be required to pay a certain amount if the necessary requirements of “Spousal Maintenance” have been met. Spousal Maintenance is completely separate to child support, but the two are often misconstrued and taken to be one and the same.
In this article, we will discuss the differences between child support payments and spousal maintenance payments and briefly explain obligations in respect of these.
What is Spousal Maintenance?
Spousal Maintenance is essentially financial support that is paid by one former partner to the other partner of a marriage or de facto relationship that has broken down in circumstances where the other party is unable to adequately support themselves. It is money which is to be used by the recipient to assist in payment of their reasonable living expenses.
You might be asking yourself, why would does financial support need to be provided to a former partner if there is no longer a relationship? In short, the law in Australia states that a person may have a responsibility to financially assist their former spouse or de facto partner if that person cannot meet their own living expenses. The duty to support and maintain each other works both ways, and this obligation may continue even after separation.
To be successful in an application for Spousal Maintenance, there are essentially two limbs that must be satisfied. Firstly, the applicant must have a need. Secondly, the respondent must have capacity to pay spousal maintenance. There are a range of factors which the Court consider when a party seeks such orders, such as the age of the parties, care of children and the parties’ income and financial resources, to name a few.
Child Support
Child Support, on the other hand, refers to the financial support by a parent specifically for their child/ren. A private arrangement for the payment of child support can be negotiated between the parties and recorded in a Binding Child Support Agreement or a Limited Child Support Agreement. For the former, both parties need independent legal advice. Such agreements can cover the payment of periodic child support (a regular amount for example) or non-periodic amounts. Non-periodic amounts can include payments towards costs such as education, medical and extra-curricular costs. Lump sum payments are also possible.
Alternatively, or in conjunction with the above, Child Support may be assessed at a particular rate by the Department of Human Services (Child Support Agency). Child Support matters are managed by Services Australia which is the entity that administers the Australian Child Support Scheme. The Family Court or Federal Circuit Court of Australia does not generally deal with Child Support matters, although it may be possible to apply to the Federal Circuit Court of Australia for a departure from a child support assessment carried out by the Child Support Agency in certain circumstances.
Time limitation for Spousal Maintenance
It is important to note that there is a time limitation for a party to make a claim for Spousal Maintenance against the other party. This date is 12 months from the date that a divorce order takes effect if you were married, and 24 months from the breakdown of your relationship if you were a de facto spouse.
Interestingly, the Court still has power to grant permission (“leave”) to a party who is making an application for spousal maintenance (married) or maintenance (de facto) even if that party is out of time. For this, the party making the application will need to demonstrate hardship.
What this means in practical terms, is that in some circumstances, it could be possible to make an application for Spousal Maintenance even after the limitation period has elapsed and/or after property settlement has been finalised.
Seek legal advice
There is no one particular way to approach matters involving Spousal Maintenance and Child Support, as it will really depend on the individual circumstances of every case. This is why it is always best to seek legal advice about your situation, obligations and entitlements, as well as tailoring the best options to your needs and the needs of your family.
Sometimes people do not realise that they may be entitled to receive payments from their former partner by way of spousal maintenance. Likewise, some people might fail to recognise the risk of there being a potential Spousal Maintenance application made against them in the future even after they finalise a property settlement. There are ways to limit potential future liability in this regard, such as entering into a Binding Financial Agreement which effectively extinguishes spousal maintenance rights for one or both parties.
Contact us today and make an appointment with Shannon Daykin, an Accredited Family Law Specialist, to discuss your circumstances and needs. Shannon was recently named as one of Brisbane’s Leading Family & Divorce Lawyers (Recommended) and Leading Parenting & Children’s Matters Lawyers (Leading) 2021, Brisbane, in the prestigious Doyle’s Family Law Guide. We offer a reduced fixed fee initial consultation, which can be conducted in person, by phone or by video conference.
We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family. Contact us on (07) 3852 5490 to make an appointment for a fixed fee initial consultation today.
If you have separated from your partner and have care of the children from that relationship, you are, in most circumstances, able to apply for financial assistance from the other parent to contribute to the costs of raising those children, in the form of child support obligations.
Child support stems from a fundamental principle that both parents have a responsibility to provide for their children. After separation, whether married or de facto, an agreement can be reached regarding the type and level of child support that is paid from one parent to the other to make sure that a child is supported financially by both parents. Child support is an ongoing payment that is purely for the financial support of a child from that relationship.
The area of child custody can be fairly complex, particularly if parents cannot come to an amicable agreement or there are extenuating circumstances that require the intervention of the Court. In our previous blog post, you can find out in more detail how to get child custody. Today, we’ve summarised the key things we think you need to be aware of when considering your child support obligations.
How long the obligation lasts
In Australia, child support obligations continue until a child turns eighteen years of age, or to the conclusion of Year 12 if the child turns eighteen during that year of schooling. However, in order for the obligation to continue to the end of Year 12 a specific application must be made. In some circumstances, the Court can order for a parent to financially support an adult child of the relationship.
There are certain circumstances in which the obligation can be stopped early, for example:
- If the child becomes self-sufficient
- If the child marries or enters into a marriage-like (de facto) relationship
- If the child is adopted
- If the child dies
On the other hand, child support can also be extended in circumstances where, for example:
- The child over 18 can’t support themselves because they are completing their secondary or tertiary education
- The child over 18 has a mental or physical disability
This is called adult child maintenance. If you would like to receive child maintenance for your adult child, or you have been asked to pay adult child maintenance, you should get legal advice.
How to calculate child support
The procedure for paying and receiving child support is governed by the Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth).
The actual process of assessing the amount of child support can be quite complex, but in general terms it involves the use of an 8 step formula;
- work out each parent’s child support income
- work out the parents’ combined income
- work out each parent’s income percentage
- work out each parent’s percentage of care
- work out each parent’s cost percentage
- work out each parent’s child support percentage
- work out the costs of children
- work out the child support amount
In practical terms, the simplest way to work out your potential child support contribution or what you are likely to receive is to use the Department of Human Services Child Support Estimator. The estimator takes you through each step and provides a calculation based on your individual circumstances.
How to pay or receive child support
There are various ways in which you can organise and manage your child support payments. This will depend on your individual circumstances as well as how able you are to communicate with your ex-partner.
Child support can be paid:
- Through the Child Support Agency periodically
- Privately following an assessment
- Directly between the parents (self-managed)
If you and the other parent are not able to communicate effectively, it may be advisable to organise your child support payments though the Child Support Agency by opting for the ‘Child Support Collect’ method.
You are able to change to another arrangement at a later date if you find you need to, however the parent receiving the child support must agree to the change in payment method.
If either the payer or payee are living abroad, child support payments may still apply. If this is the case, you should seek legal advice.
What happens if your child support matter goes to Court
There are limited circumstances where child support arrangements go to Court. Most child support disputes are handled outside of the Court. However, some examples where a case may go to court are:
- where the paternity of the child is in dispute;
- if you have property or parenting proceedings underway and you need to dispute an assessment which does not take into account a parent’s proper circumstances;
- if you are in proceedings for property or parenting matters and you want to halt any assessment process pending the outcome;
- to set aside or vary a child support agreement where the other parent won’t agree to stop or change the arrangements set out in the agreement.
Compiling the correct documentation, serving other parties and the ensuing evidence gathering and subsequent hearing can be complex. It is vital in these circumstances that you seek independent legal advice from a family law specialist.
Daykin Family Law have offices in Brisbane and are highly experienced in navigating the complex area of Child Custody. Director, Shannon Daykin, was named in the prestigious Doyle’s Guide for 2019 in the Leading Family & Divorce Lawyers list (Recommended) and Leading Parenting & Children’s Matters Lawyers list (Recommended).
Daykin Family Law was also named as Recommended in the Leading Family & Divorce Law Firm list.
We will give you expert legal advice on the most appropriate and cost effective course of action for you and your family. Contact us on (07) 3338 5645 to make an appointment today.
Questions around the process of child custody mediation are often asked by our clients. We all know that going through a divorce is tough – for you, your ex-partner, for the children and wider family. When emotions are high and the future is uncertain, there can be a significant amount of conflict that arises in the decision making process, leading one or both partners to find themselves unable to compromise or reach a decision in the best interests of the children.
In Australia, as discussed in our recent child custody blog, the Family Law Act 1975 (Cth) suggests first and foremost that couples do not use the Courts where possible and instead engage in child custody mediation prior to escalating to the Court. Even where a parenting order application is made through the Court, the applicant will most likely be obliged to demonstrate that they have attempted to resolve their differences prior to having the Court intervene.
Custody is no longer a term used by the Family Law Courts, opting instead for terms associated with what time a child spends with each parent and what communications they will have. If it is safe, both parents are encouraged to play an active role in their children’s lives for the benefit of their wellbeing. However, it can be difficult to come to an agreed decision on issues such as health, living arrangements, finances and education.
When parents can’t agree during child custody mediation, that’s where a mediator comes in. Your family lawyer can organise for an experienced Family Dispute Resolution Practitioner to facilitate discussions between both parties in an impartial, calm manner. The goal of mediation is to come to an agreement approved on both sides that can by turned into either a Parenting Plan or approved by the Courts in a formal Consent Order if required.
Mediators are not there to make judgements or take sides. They are engaged to essentially chair a meeting between both parties, to facilitate proactive discussion in a safe, controlled environment that allows a resolution to be reached which is in their children’s best interests.
How do I go about getting a mediator?
There are a number of options for child custody mediation. The most cost effective being the use of the Family Relationship Centres, Family Relationships Australia or other public and community-based services. These services are able to assist parents to discuss the issues and potentially write up a new Parenting Plan. Legal representatives are not permitted in that process however.
Private child mediation services also exist, usually at a higher cost. Your family law can attend and represent you throughout the mediation. This can be helpful to receive advice on the spot regarding the law relating to your particular matter, your rights and the impact of any proposals. A solicitor can then draft the agreement terms on the day if it is appropriate, usually to be formalised soon after.
Going to Court is not usually a preferable course of action and is usually an expensive one. Mediation gives you the opportunity to come to an acceptable resolution swiftly and in a cost-effective way.
When isn’t mediation appropriate?
Sometimes, mediation isn’t an appropriate course of action, particularly in circumstances involving family violence. In such cases, the support of a lawyer can assist in effectively dealing with challenging cases to ensure your interests are protected. If there are allegations of abuse, your lawyer can advise whether the case should proceed in Court instead of with a mediator.
Should I seek legal advice before going into child custody mediation?
The most effective mediation happens when both parties have sought legal advice about their individual circumstance beforehand. You are much more likely to be prepared, to understand the probable outcomes, your options and how a Court might deal with your matter. By figuring this out in advance, and understanding your legal position, both parties are more likely to be more informed and will have considered in advance of negotiations what they are or aren’t willing to compromise on.
Your lawyer can come to mediation sessions and advise you as the session progresses. Sometimes mediation can become heated or tense when sensitive and important issues are addressed and having your lawyer with you ensures you have your say and your interests and those of your children are prioritised throughout.
How to approach mediation
Preparation is key to effective mediation. With the support of your lawyer, you can approach mediation with more of an open mind, ready to listen and to develop a mutually satisfactory agreement. Remember to keep your children and their best interests in mind and be aware of the impact of conflict on them. Importantly, it’s best to approach mediation as a place to solve parenting problems rather than bring up any other marital issues.
Mediation isn’t always smooth sailing, but by remembering that you are there to find a solution for your children and listening to the advice of your lawyer and guidance of the mediator, you are much more likely to reach a settlement that works for both of you.
What can be resolved in mediation?
The most common topics that are discussed and resolved in child custody mediation are things like living arrangements or relocation, child support, health issues, education and religion, how time will be split between parents and how school holidays will be spent, overseas travel and the division of payments for things like after-school activities.
What is the process of mediation?
When a mediator is appointed, each parent is normally invited to a pre-mediation meeting separately to establish whether the case is suitable for child custody mediation. If you have appointed a lawyer, they will advise you whether this is the case and what available options there are.
Both parties can then be asked to prepare a short statement to bring to the initial session, outlining what you hope to achieve from mediation.
Each mediation session can run for a shorter period, such as around three hours, or even a full day. In some cases, it can take a number of sessions to resolve some of the more significant issues. This is obviously expedited if both parties come prepared and willing to compromise.
If no agreement can be reached in mediation, then a certificate will be issued by the mediator. Either parent can then file for parenting proceedings in the Court. Such a certificate will also be issued if a genuine effort isn’t made by one parent to resolve the dispute, if a parent fails to attend or for another relevant reason.
I am considering child custody mediation, what should my next steps be?
Where possible, it would be prudent to speak to a family lawyer that can help you to understand your options prior to appointing a mediator. Daykin Family Law is expertly skilled in children’s and parenting matters including child custody mediation, and work closely with psychologists, social workers and mediators to help you and your family stay out of Court wherever possible. We can recommend a suitable mediator for your matter and assist in inviting the other parent to mediation.
At Daykin Family Law, we place a high importance on assisting clients to reduce conflict and maintain respect in the co-parenting relationship after separation as much as possible. Shannon Daykin is an experienced Family and Divorce Lawyer. An Accredited Family Law Specialist, Shannon was recently named as a Leading Family & Divorce Lawyer (Recommended, Brisbane) and Leading Parenting & Children’s Matters Lawyer (Recommended, Queensland) in the prestigious Doyle’s Guide 2018 and 2019. In 2019, Daykin Family Law was named in the Doyle’s Guide as a Leading Family & Divorce Law Firm (Recommended).
We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family. Contact us on (07) 3338 5645 to make an appointment for a fixed fee initial consultation today.
If you have just separated or are likely to, it is important you get advice about what will happen with custody of the children.
Most of the time, parents who have separated agree on the future parenting of their children. For some, the children might live with one parent, and see the other at weekends, holidays and special days. For others, the children may effectively have two homes and spend an equal amount of time with each parent. For many, the arrangements are somewhere between.
Sadly, not all agreements can be made amicably, or there may be extenuating circumstances that mean parents choose to litigate in the family court system. Litigating child matters in the courts can be particularly emotionally straining for all parties involved and is often considered to be a last resort. That being said, it is important to understand the process and implications if you’re considering seeking custody as part of a separation. In this article, we seek to provide some clarity around the process of seeking child custody.
What is child custody?
The term ‘custody’ is actually no longer used by the family law courts, however it is still used regularly by others and in the media. In Australia, parenting arrangements fall under the Family Law Act 1975, which covers divorce and separation, property separation, parenting arrangements and financial maintenance. The terms ‘custody’ and ‘access’ are no longer used and have been replaced with ‘live with’ arrangements and ‘spend time with’ arrangements as preferred terms.
What is the legal process for getting child custody?
There are no standard arrangements for the care of a child following separation, however the starting point is Section 65E of the Family Law Act. This details the basis of who a child will ‘spend time with’ and who a child will ‘live with’.
The law assumes firstly that decision making is shared amongst parents (for example decisions around religion, medical treatments, changes to where a child lives or to their name or decisions around their education), unless in circumstances of a risk of family violence or abuse. However, equal shared parental responsibility does not always mean that there is an automatic right to spend an equal amount of time with the child. This decision is made by the Courts in the best interests of the child.
What is the legal process for getting child custody?
The courts’ primary focus in deciding on custody (parenting order) is what is in the child’s best interests. The primary considerations are;
- The benefit to the child of having a meaningful relationship with both parents
- The need to protect children from any harm, such as family violence, neglect or physical and psychological harm
The latter is always deemed the priority of the two primary considerations. There are a host of other additional considerations that may include;
- the views or wishes of the child – if these are expressed
- the relationship of child with their parents and significant others, for example grandparents and siblings
- parental involvement – how much time each parent has spent with the child, whether they have fulfilled their parental obligations
- the effect of any changes – such as where the child has been living or staying, practical difficulties of spending time with each parent or significant others
- cultural issues – for example religion
- any family violence issues
- another other issues the court deems are important to the case
Should I go to court for child custody?
It is most often the case that parenting arrangements can be made without the intervention of the Courts. Most lawyers would recommend finding alternative ways to finding a resolution, for example mediation. By appointing an experienced family lawyer and taking a proactive approach to litigation, it is very possible to avoid the Court or leave the court system sooner, allowing you to move on and raise your children.
We pride ourselves on only a very small percentage of our matters making it to a final hearing in the court because the advice we give is pragmatic and we explore all opportunities available to settle your matter without the high cost associated with litigation to the end.
If you are seeking court intervention, ask yourself the following;
- Do I want sole parental responsibility?
- Why do I want sole parental responsibility? Do I have a genuine concern about the other party’s ability to care for the children and/or capacity to co-parent effectively?
- Why do I want the children to live with me? Do I have a genuine concern about the children’s ability to adjust or the new lifestyle of my ex-partner?
- Are my children at risk of violence, abuse or neglect? Do I have any evidence of this?
If your concerns are genuine and you cannot come to a resolution outside of the Court, you can file an application in the Family Law Courts for Parenting Orders. You should seek advice about whether any exemptions to attending family dispute resolution first apply to your circumstances.
What is the process for getting a court order?
You must demonstrate that you have tried alternative methods of dispute resolution prior to filing an application with the courts, unless your situation is urgent or another exemption applies (for example it involves family violence or child abuse). It is imperative to get advice from your solicitor prior to taking any action.
If you are unable to reach an agreement, documents need to be filed with the Federal Circuit Court of Australia, including the initiating application, affidavit(s), mediation certificate, notice of risk and the court filing fee. In some cases, an application may need to be filed with the Family Court of Australia. It is really important to seek advice from a family law expert if you are considering going down this path. We can guide you through the parenting arrangements process, avoiding litigation where possible and ensuring you can the best outcome for your children and family. If Court is the only option, then we can guide you through the litigation process.
What if I already have a parenting arrangement in place and circumstances change?
Firstly, it depends how the parenting arrangement is recorded. If you have a court order and want to vary it, you may need to satisfy the Court that there has been a significant change in circumstances, which requires expert family law advice.
The above gives you just a snapshot of some of the complex factors involved when considering child custody. It is possible to avoid Court and come to a resolution that suits both parties, particularly with the support of a friendly, understanding and compassionate family lawyer. At Daykin Family Law, we’ve worked with hundreds of parents to come a resolution in the best interests of their children.
We have developed close relationships with psychologists and social workers who also act as experts in the Family Law Courts and can help you and your family stay out of the Court system wherever possible. If Court is the only option, we can discuss with you ways to keep your legal costs down and work with you to achieve the result you desire.
Daykin Family Law have offices in Brisbane and are highly experienced in navigating the complex area of Child Custody. Director, Shannon Daykin, was named in the prestigious Doyle’s Guide for 2019 in the Leading Family & Divorce Lawyers list (Recommended) and Leading Parenting & Children’s Matters Lawyers list (Recommended). Daykin Family Law was also named as Recommended in the Leading Family & Divorce Law Firm list.
We give you expert legal advice on the most appropriate and cost effective course of action for you and your family. Contact us on (07) 3338 5645 to make an appointment for a fixed fee initial consultation today.
Obtaining final parenting Orders is often at the end of a long process for many people which can be emotionally and financially draining. When the other parent starts breaching those Orders, it can be a huge source of further frustration, worry and headache.
When parenting orders are made by the Court, whether by consent or as a result of a trial, it is important that all people involved comply with the orders.
A person is considered to have contravened a parenting order if they have:
- intentionally failed to comply with the orders;
- made no reasonable attempt to comply with the orders; or
- intentionally prevented compliance or aided contravention of orders by a person who is bound by the orders.
Examples of contraventions of parenting orders include circumstances where a parent fails to return the child or children to the other parent at the time or date specified, where a parent uses corporeal punishment methods (such as smacking) when such acts are expressly prohibited, or where a parent discusses adult issues with the children when they are specifically prohibited from doing do.
Having a reasonable excuse for contravening parenting orders can be a defence in contravention proceedings. Reasonable excuses can include:
- circumstances where the person in contravention of the orders did not understand the obligations imposed on them by the orders;
- the person in contravention believes on reasonable grounds that the contravention was necessary in the interests of their own health and safety or that of the children; and
- where the Court is satisfied that the person in breach ought to be excused in relation to the contravention.
If someone contravenes a parenting order without reasonable excuse, the other party may wish for the contravening party to be punished by the Court for non-compliance or, alternatively, may simply wish for the contravening party to comply with the Orders.
When seeking a party to be punished by the Court, filing an Application for Contravention of Child Order is an option. The remedies available from this course of action range from compensating a person for lost time with the children, varying existing orders, imposing fines and, in some cases, imprisonment of the party in breach of the orders. Care should be taken with this approach, given the Court’s ability to vary parenting orders in contravention proceedings, and we recommend that you seek legal advice before you initiate this process.
If the other party does not want the contravening parent to be punished, however would prefer a remedy to ensure resumption of the arrangements specified in the Orders or other orders to deal with compliance issues, that party may be able to file an Initiating Application seeking certain orders. Again, you should seek advice before taking this step as costs consequences could flow if such an application was unsuccessful. We regularly advise clients on these issues, including whether the Court is likely to vary certain parenting orders, or not.
It is also important to remember that parents may be able to resolve matters involving the contravention of parenting orders privately, without resort to litigation in the Court. There are a range of options available to deal with contraventions and aid compliance outside of the Courtroom.
If you believe that another party to parenting orders is in contravention, contact us today for a reduced fixed fee initial consultation to discuss your options. Our focus is to resolve your issues, if possible, out of Court. If Court is the only option, we can discuss with you ways to keep your legal costs down and work with you to achieve the result you desire.
First published 23 February 2017
