What happens if there is a parenting order in place and it is not followed?
If a person does not do what the court order says, it is known as ‘breaching the order’. The other person can bring a contravention proceedings in the court. This where the court is asked to enforce the contact order and person to comply with the contact arrangements.
The court will first decide if there is a breach of the order
If a person has not followed an order, the following options are available:
- attend dispute resolution.
- getting legal advice.
- applying to the court.
A court can enforce an order or compel a person to comply with an order. It also can vary an order to ensure all people bound by it comply with the order in future.
How is an order breached?
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.
Note: Parenting orders may be subject to a subsequent parenting plan. Get legal advice about this. (See Family Law Courts website)
What is a reasonable attempt to comply?
When a parenting order is made, each person affected by the order must follow the order. This includes taking all reasonable steps to follow the order. For example, a parent has a positive obligation to encourage a child to spend time with the other parent (if this is specified in the order).
What is a reasonable excuse?
The Court will then look at whether you had a defence, that is, a reasonable excuse for breaching the order.
A defence to contravention proceedings is that you have a “reasonable excuse” for contact not taking place, that is, the health and safety of children or your own health and safety is threatened.
This means that if you are able to prove that you had a reasonable excuse for contact not taking place, you will not be found to have breached the order.
Children being reluctant to go on contact is usually not sufficient in the eyes of the court. The court wants to see “active” encouragement given to the children to attend during contact times. Active encouragement does not mean simply telling the children that they must go, but rather it may involve having lengthy discussions with your children encouraging them to go. It does not mean using physical force to make children go with their father. (Information from Queensland Women’s Legal Service)
If a court decides a person has contravened a parenting order, it will consider whether the person had a reasonable excuse for contravening the order.
Be aware that it is generally expected that either parent will have the capacity to care for a child when the child is ill. Accordingly, a tangible health threat would effectively require a child be so ill hat not moving them is a medical necessity.
Penalties for breaching a parenting order
If you (or the other person) are found to have breached the order and do not have a defence, and it is the first time in court for contravention, the court will require attendance at a post-separation parenting program and can also order “make-up” contact or change the order.
If a previous breach has occurred , or if it is your first time but the court considers that you have shown serious disregard for the order, the court must impose a penalty. Penalties include fines, require the person to enter into a bond, order that the person pay all or some of the legal costs of the other parties, order that the person pay compensation for reasonable expenses as a result of the contravention, community service orders, and imprisonment in the most extreme cases. The penalties are listed under Division 13A of Part VII (seven) in the Family Law Act 1975. Further information provided by Brisbane Women’s Legal Centre ‘Separation: A A Guide for women’ Separation book
The Family Law Act provides a defence that there is “just cause or excuse” for the contravention of an order. That is, that the health and safety of the children or a Woman’s oven health and safety is threatened. This can be clear in situations for example when a child is quite sick or if there is substantiated evidence of abuse. It can become less clear whether there is “just cause and excuse” in situations where similar allegations have been brought before the Family Court.
If there are parenting orders in place and you are concerned that the children are in danger you need to immediately apply to the court to change the contact orders. It is essential for a Woman to get legal advice. The Court can adjourn a contravention application to allow time to file an application to change the original orders. Even if there are parenting orders in place, the court will not force a parent to see their child if the parent does not want to.
Concerned about your children’s safety and the danger of harm
If there is a parenting order and you believe your children are in danger of abuse, such as physical violence or sexual abuse or that their health and safety is threatened, then you can temporarily refuse to allow the children to see the other parent. Seek legal advice immediately, preferably before you suspend the time that your children are spending with the other parent.
For orders to be varied or suspended the court must be satisfied that there is a risk to children. Clear and tangible evidence or the risk must be provided to the court. Evidence of risk of harm is essential. It is not sufficient for a parent to seek to vary or suspend a child’s time iwth the other parent on the basis of a ‘concern’ or ‘worry’ that a thing could happen.
If you believe your children have been or are being abused you could contact the Child Protection Services or the police, although it is very important to seek advice before taking this step so that you are informed of your rights and the processes that may begin as a result of reporting abuse. The Child Protection authorities should investigate the allegations of abuse. They may involve the police and/or a doctor in the investigation.
(Information provided by Brisbane Women’s Legal Centre ‘Separation: A A Guide for women’) Separation book
Standard of proof
The decision of a judge or federal magistrate in family litigation must be evidence based. The more serious the allegation or more improbable the supposed event, the stronger the evidence has to be before a court concludes that the alleged event occurred.
Except for more serious contraventions or contempt, a party must prove the allegations or facts relied on to the court’s satisfaction on what is called ‘the balance of probabilities’. The alleged fact must be more than merely possible; it must be more likely to exist than not. Thus, 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 that the alleged breach occurred.
In the most serious contraventions, including contempt, a court will not find the case proved unless it is satisfied that all the essential facts have been established ‘beyond reasonable doubt’. This is the same standard required in criminal matters. In general terms it, means that the truth of the allegation must be the only reasonable explanation for what has occurred.
What form do I use?
The Family Law Courts comprise the Federal Circuit Court and the Family Court of Australia. The courts share jurisdiction in all family law matters and you can apply to either court.
The Family Court deals with more complex matters. These may include, for example if the children’s issues in your case involve a child welfare agency and/or allegations of serious sexual abuse (Magellan cases), severe family violence or mental health issues with other complexities, multiple parties, complex cases where orders sought have the effect of preventing a parent from communicating with or spending time with a child, multiple expert witnesses, complex questions of law and/or special jurisdictional issues , international child abduction under the Hague Convention, international relocation or special medical procedures.
All other applications should be filed in the Federal Circuit Court. The Federal Circuit Court deals with less complex matters that are likely to be decided quickly.
You may prefer to seek legal advice before choosing the court in which to file your application.
The forms you must use and the processes you must follow depend on which Court you apply to; the courts have different application forms and different requirements associated with filing an application. For further information go to the ‘Forms’ section of the Family Law website, call 1300 352 000 or visit a family law registry near you.
Before filing any documents at a family law registry, make sure you complete the documents correctly. The accuracy of documents is your responsibility.
Attendance at court
If you are the person alleged to have contravened a parenting order and do not attend the court hearing, orders may be made in your absence, including an order for your arrest.
You can attend in person or ask a lawyer to represent you. If you cannot attend the court hearing in person, you can request to appear by telephone or videolink. You will need to make this request well before the court hearing and explain why you cannot attend in person. For more information about this, speak to staff by calling 1300 352 000 or visiting a family law registry near you.
Important Information - Child Abduction
If there is a court order where the mother has residence and the children are removed from her care by the father, or not returned from contact, then the state police will usually not do anything and she has to apply to the court to enforce the orders.
There are occasionally exceptions. Sometimes they will agree to be there while a mother tries to retrieve her children ‘informally’. They have no power to just go and enforce the order though.
If there is a contact order in place and the children do not go on contact the state police do not have the power to enforce that contact order, although we have stories where that has happened. But they have no power to.
Until the case goes back to court (i.e. the father has to apply to the court for a ‘contravention’) the state police will not become involved and in fact it is the Federal police who become involved if the Court orders a warrant for the return of the children.
If your child is abducted by the other parent you should seek legal advice immediately. You may apply to the court for an ‘ex-parte’ order- an order which can be made without the other parent being present.
You can then seek that the court issue a location order and/or recovery order so that the federal police can search for the child and return them to you. A recovery order allows the state and federal police to search for and physically recover the child from the other parent and return them to you.
It is imporant to note that a recovery order will only be issues in certain circumstances and where it is in the best interests of the child, such as when the child is an infant and your are breastfeeding or they have limited time (if any) with the other parent prior to abduction.