Obtaining final parenting orders can be a lengthy and often emotionally taxing process for many parents. After all the effort and energy invested in securing an order, it can be deeply frustrating when the other parent breaches these orders.
If you’re currently dealing with breaches of parenting orders, understanding your options and the legal avenues available to you can make a significant difference in resolving the situation.
What Constitutes a Breach of Parenting Orders?
In Australia, a breach of parenting orders occurs generally when a party:
- Intentionally fails to comply with the orders.
- Makes no reasonable attempt to comply with the orders.
- Prevents or aids another person in contravening the orders.
Common examples of breaching parenting orders include:
- Failing to return the child at the agreed time.
- Using corporal punishment (such as smacking) when expressly prohibited.
- Discussing prohibited topics (e.g., adult issues) with the children again when expressly prohibited.
What Is a Reasonable Excuse for Breaching Parenting Orders?
In some cases, there may be a reasonable excuse for breaching parenting orders, which can act as a defence during court proceedings. Common reasonable excuses include:
- Believing on reasonable grounds that the contravention was necessary to protect one’s own health and safety or the health and safety of the child.
- The court accepted that the breach ought to be excused under specific circumstances.
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.
However, proving a reasonable excuse requires careful consideration of all circumstances. It’s recommended to seek professional advice before presenting such a defence.
Struggling to navigate co-parenting? Check out our article on effective co-parenting strategies.
Legal Remedies for Breaching Parenting Orders
If the other parent breaches parenting orders without reasonable excuse, you have several legal options available to seek compliance or punishment for the contravention. These include:
- Application – Contravention Filing this application with the Federal Circuit and Family Court of Australia may lead to various remedies, including:
- Compensating the other parent for lost time with the child.
- Varying the existing parenting orders.
- Ordering a parenting into a relevant program.
- Imposing fines or, in serious cases, imprisonment.
Note: Filing a contravention application can sometimes result in the court varying existing orders. This is why we recommend seeking legal advice before pursuing this option.
- Initiating Application to aid compliance with the Orders If your primary goal is to ensure compliance rather than punishment, an Initiating Application may be appropriate. This legal action aims to ensure that the contravening party complies with the existing orders or seeks new orders to address non-compliance. However, keep in mind that costs orders can be made if an application is unsuccessful. Daykin Family Law regularly advises clients on these issues, including whether the Court is likely to vary certain parenting orders, or not. There are now specific provisions under the Family Law Act 1975 (Cth) to do with varying existing parenting orders and expert legal advice should be should for these matters.
Non-Court Solutions for Breaching Parenting Orders
In some cases, resolving the breach outside of court may be the best approach, as litigation can be both costly and time-consuming. Alternative options include:
- Family Dispute Resolution (FDR): This process involves mediation between the parties to discuss the breaches and seek mutual resolutions without court intervention.
- Negotiation: Some breaches can be resolved through open and constructive communication, ensuring that both parties understand the terms of the parenting orders.
It’s important to explore these options before turning to the courts, as resolving disputes amicably can be less stressful for all parties involved, especially the children.
Seeking Legal Advice
If you believe that the other parent is consistently breaching the parenting orders, seeking legal advice is essential. An experienced family lawyer can help you assess your options and ensure you take the right steps to resolve the issue efficiently and effectively. At Daykin Family Law, we specialise in navigating complex family law issues and finding solutions that are in the best interest of you and your children.
Contact Daykin Family Law for a fixed-fee consultation to discuss your options.
