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