Compliance with Parenting Orders

A parenting order is legally binding unlike a parenting plan

How is a parenting order contravened?

 

A person contravenes an order, which has not been altered by a parenting plan, if he or she:

  1.  intentionally fails to comply with the order, or
  2. makes no reasonable attempt to comply with the order, or
  3. intentionally prevents compliance with the order by a person who is bound by it, or
  4. aids or abets a contravention of the order by a person who is bound by it.

What is a reasonable attempt to comply with a parenting order?

When a consent order (which is different from a parenting plan) is made, each person affected by the order must comply with the order. This includes taking all reasonable steps to comply with the order. For examply, a parent has an obligation to ensure a child spends time with the other parent (if this is specified in the order).

What is a reasonable excuse to not comply with an order?

If a court decides a person has failed to comply with an order, it will consider whether the person had a reasonable excuse for contravening the order. Some examples of reasonable excuses that may satisfy the court include:

  1. the person did not understand the obligations imposed by the order, or
  2. the person reasonably believed that the actions constituting the contravention were necessary to protect the health and safety of a person, including the person who contravened the order or the child, and
  3. the contravention did not last longer than was necessary to protect the health and safety of the person who contravened the order or the child.

Standard of proof

When a court makes a decision about evidence you give, it applies a standard of proof. Except for more serious contraventions, a party must prove the allegations on the 'balance of probabilities', they must be more likely to exist than not. Where the allegation is that one party has not complied with a court order, the alleging party (the applicant in a contravention case) must establish that it is more likely than not tht the alleged breach occured.

If a court considers imposing a prison sentence, it will not find the case proved unless the allegations are established 'beyond reasonable doubt'. This is the same standard in criminal matters.

Penalties for failing to comply with a parenting order.

A court can only penalise someone for failing to comply with a parenting order, which has not been altered by a parenting plan, if another person files an application alleging the person did not comply with the order. After considering all the facts of the case and applying the law, a court may decide:

  1. the alleged contravention was not established
  2. the contravention was established but there was a reasonable excuse
  3. there was a less serious contravention without reasonable excuse, or
  4. there was a more serious contravention without reasonable excuse.

 

If a court finds that you have failed to comply with a parenting order without a reasonable excuse, it may impose a penalty. Depending on the particulars of the case and the type of contravention, a court may:

  • vary the primary order
  • order yo to attend a post separation parenting program
  • compensate for time lost with a child as a result of the contravention
  • require you to enter a bond
  • order you to pay all or some of the legal costs of the other parties
  • order you to pay compensation for reasonable expenses lost as a result of the contravention
  • require you to participate in community service
  • order you to pay a fine
  • order you to a sentence of imprisonment.

In addition to these orders, a court may also adjourn the case to allow you or the other party to apply for a further parenting oder.

What forms do you need to file?

If you decide to apply to court, you need to file:

  • an application alleging contravention
  • an affidavit and
  • a certificate from a Family Dispute Resolution practitioner (there are exceptions, such as if the matter is urgent).

This article is an excerpt from Family Court of Australia website. For all related matters, visit this website.