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Contravening Parenting Orders

There are two ways in which parenting arrangements can be documented in accordance with the Family Law Act 1975. These are Parenting Plans, which are an informal means of documenting an agreement between parents, and Parenting Orders, which are orders made by a court, which are enforceable. If a party does not make reasonable efforts to comply with a Parenting Order, they may face legal consequences for contravening the Parenting Order.

What is a parenting plan?

To be a “parenting plan” for the purposes of the Family Law Act 1975, the document must be in writing, dated and signed by both parents. It must be made free from any threat, duress or coercion. Parenting plans are not binding or enforceable but can be taken into account by a court in any future parenting proceedings.  You should be aware that orders can be altered by any parenting plan the parents enter into at a later date; and

What is a Parenting Order?

Parenting Orders are made by courts either when parties file an application for Consent Orders, or when a party commencing proceedings because agreement could not be reached. Once made by a court, Parenting Orders are both binding and enforceable.  Each party is bound by the terms of the orders and must comply with them.

What if I can no longer comply with the Parenting Orders?

If a party finds themself in a position where they believe it is not in the children’s best interests for them to comply with the terms of the Parenting Orders, or another party has refused to comply with the terms of the orders, they should seek urgent legal advice before deciding how to proceed. A lawyer can explain your options and responsibilities, how the law applies in your circumstances and assist you with a cost/benefit analysis of your options before you take further steps.

As a party to parenting orders you should be aware that:

  • You should do everything the Parenting Order says, and take positive steps to encourage your children to do what the order says;
  • It can be an offence to send a child outside Australia without an order of the Court or without the consent in writing of the other parent. The penalty for doing so can include imprisonment;
  • Orders remain in force until a new parenting order is made or a parenting plan changes it in some way, regardless of whether any needs or circumstances of the parties or the child have changed; and
  • Unless discussions about changes to the arrangements set out in a Parenting Order are documented in a parenting plan or a further Parenting Order, the obligations to comply with the terms of the existing orders remain unchanged.

What if the other party is contravening the Parenting Orders?

In the absence of agreement of all parties (and except in limited circumstances), it is compulsory to attend family dispute resolution before applying to a court for Parenting Orders. This requirement also applies before filing an application as a result of a party contravening Parenting Orders.

If a breach of Parenting Orders has occurred, a party should consider the outcome they want to achieve before filing a contravention application. You would file an Application – Contravention if you want to seek an order from the court imposing a punishment or another consequence on a person for the breach of a court order.  In some circumstances, it may be more appropriate for you to file an Initiating Application, an Application in a Case or an Application – Contempt.  You should discuss these options with a lawyer before filing any Application.

What if a party is found to have contravened the orders?

If an Application – Contravention is filed and the court is satisfied that a party to the orders has failed to comply with their terms, the court will consider whether that person had a reasonable excuse for contravening the orders.

At this stage, the court might consider whether:

  1. the person breaching the order understood the obligations imposed by the order, or
  2. the person breaching the order ought be excused in respect of the contravention;
  3. the person breaching the order reasonably believed that their actions were necessary to protect the health and safety of a person or the child, and
  4. the contravention did not last longer than was necessary to protect the health and safety of a person or the child.

If a court finds that a party has breached a Parenting Order without reasonable excuse, penalties depend on the circumstances of the case and how serious the contravention was. The court may:

  1. change the existing order;
  2. order a party’s attendance at a post-separation parenting program;
  3. order ‘make up time’ with a child;
  4. require a party to enter into a bond;
  5. make an order that a party pay for some or all of the other party’s legal costs or expenses lost as a result of the contravention;
  6. require a party to participate in community service;
  7. order a party to pay a fine; or
  8. order a sentence of imprisonment.

You should be aware that if a party files an Application – Contravention and that application is dismissed by the court, or the court decides that no action against the other party is required, then the court may make an order that the party who applied to the court pay the other party’s costs. The precise wording of the order and the allegations in your documents is very important. It is therefore important that you seek legal advice prior to commencing contravention proceedings.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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