Parents can formalise their agreed care arrangements for children by way of Consent Orders (filed with the Federal Circuit and Family Court of Australia – the Court) or the arrangements can be determined by a Judge at the end of the Court litigation process.
Once Parenting Orders are made they legally binding on both parents and cannot be changed unless there has been a significant change of circumstances since the Orders were made. Parenting Orders can be Interim (meaning short term orders until further short term orders or a Final Order is made) or Final (being the orders that govern the arrangements for the child on a long term basis).
This article focuses on what parents can do if the other parent does not follow the Parenting Orders, and in particular, Contravention Applications.
The first step is to address the reason for the non-compliance with the other parent either directly through polite negotiation or through lawyers. There might be a practical issue that can be easily addressed rather than pursing formal Court applications.
However, if negotiation does not work, a party can either:
Whether or not to issue a Court application is best discussed with a lawyer. Factors that should be considered are the costs of litigation, the type of breach, potential cost orders against a party and the impact this may have on the ongoing post separation parenting relationship.
The Family Law Act 1975 (Cth) (the Act) states that a person bound by the order intentionally failed to comply with the order or made no ‘reasonable attempt to comply’ with the order. It also includes a person who prevents a person bound by an order to comply or aid or abet the breach of the order.
The Court must be first satisfied that a breach of an order has occurred – which must be clear and unambiguous. If the breach is established, a parent may have a reasonable excuse for not complying.
The term ‘reasonable attempt’ has long been ambiguous and has provided little guidance for parties unsure of their obligations. As such, there has been a requirement to provide clarification to this point to avoid unnecessary Contravention or Enforcement Applications from being brought before the Court.
The case of TVT & TLM  FMCAfam 20 summarises key principles to determine whether steps taken by parties had been a ‘reasonable attempt to comply’ with a parenting order. Whether such steps are considered ‘reasonable’ depends upon the individual facts and circumstances of each case. However, it is accepted, that a parent has a duty to not only ensure that a child spends time with the other parent as ordered but does so in a positive manner.
The principles include the following:
Whether or not there is a reasonable excuse for non-compliance will depend on the Parenting Orders and the fact of the case. Some examples include that the Orders are unclear, particular scenarios that arise or the contravention is necessary to protect the health and safety of child (being for a period no longer than necessary to do so).
You should seek legal advice about any reasonable excuse in not complying with a Court Order or your parenting case in general.
There are serious consequences for failing to comply with a Parenting Order. That is, if the Court finds a parent contravened an order without a reasonable excuse, the Court may (depending on the seriousness of the breach):
If there are no Court Orders in place and just an informal agreement but the other parent is not sticking to the agreement, then you should seek legal advice about either formalising the agreement into enforceable Court Orders (by consent) or through litigation depending on the issues.
A Parenting Plan is an informal document setting out the agreement for the children in writing. Parenting Plans are not legally enforceable but are evidence of the agreement reached.
If you or the other parent is not complying with a Parenting Order it is always best to seek legal advice as to the best method to resolve the issue, in a cost-effective and efficient way. Please do not hesitate to contact us for a 30 minute no cost consultation with one of our experienced lawyers in the Family & Relationship Law Team. We are here to help you navigate issues concerning you and your family.
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