Separated Parents spend a lot of time working towards having Parenting Orders or arrangements made in their cases, but sometimes do not have a clear idea of what happens when someone does not comply with those Orders. This post is intended to give a basic overview of what steps can be taken to enforce Orders or agreements.
Where Orders are disobeyed without a reasonable excuse, the Court has a wide discretion regarding what responses or penalties might be appropriate. These can range from warnings; changes to the Parenting Orders; parenting courses; providing make-up time; possibly even leading to punishments such as costs orders; fines; community service, and even prison in the most extreme cases.
To be successful in proving a Contravention Application, there are two main things that need to be shown:
• The Orders were in fact contravened; and
• That there was no reasonable excuse for the Contravention.
Essentially, when someone deliberately disobeys an Order or does not make a reasonable effort to do what it requires, that person has “contravened” the Order. A common example is refusing to make a child available to spend time when the Orders require it, or not doing enough to encourage a child to spend time with the other parent when the Orders require it.
Something to be aware of is that Parenting Orders often have a clause which allows parents to do something other than what the Parenting Orders say if both parties have agreed to it in writing. In those cases, where there is a written agreement to do or not to do something, complying with that written agreement will generally not be a breach of the Orders, even if the particular thing being done would be a breach if the written agreement did not exist.
Once a contravention is established, the next step is working out whether there was a “reasonable excuse”. There are three main things which could be argued as a reasonable excuse:
• That the person did not understand the Orders, and that it would be appropriate to excuse the contravention. This is generally hard to argue if the person had legal representation or if the Judge explained the Orders when they were made;
• It was reasonably necessary to disobey the Orders to protect a parent’s or child’s health or safety; or
• For some other reason, it was reasonable to disobey the Orders.
Deciding whether there are reasonable grounds to disobey the Parenting Orders is technical and depends very heavily on the details of the case. If you think it might be necessary to contravene Parenting Orders to protect someone’s health or safety, or for some other reason, we strongly recommend that you speak with a specialist Family Lawyer about your case as soon as you can.
Similarly, if the other parent in your case has not been complying with Orders, we would recommend that you speak with a specialist Family Lawyer about your options as soon as possible, because how quickly someone takes action can impact how the matter is dealt with.
Our Family Law team is still operating through the COVID-19 pandemic, and can be contacted by email, phone or videoconference. If you have any questions about any of the issues in this post, or anything else to do with Family Law, we would love to hear from you on (03) 9623 1039 or at lewisholdway.com.au.