By Mary Young – Special Counsel
If your ex-partner is not following a Parenting Order, it can be frustrating and stressful. Parenting Orders are legally binding, meaning everyone involved is obligated to follow them. But what happens if someone does not comply with the Order? Here is a guide to understanding your options for enforcing Parenting Orders.
What is a Parenting Order?
A Parenting Order is a legally enforceable document issued by the Federal Circuit and Family Court of Australia (Court) that sets out the arrangements for a child’s care and welfare. The Court can make a Parenting Order based on an agreement between the parties (usually known as Consent Orders) or after an interim Court hearing or trial. Parenting Orders can address issues such as:
- Where the child will live
- How much time they will spend with each parent
- How the child will communicate with a parent they do not live with
- Who makes major decisions regarding their welfare
- The maintenance of a child (payment of child support)
- Where a child will go to school
Obligations under a Parenting Order
A Parenting Order imposes a positive obligation on parents to take all reasonable steps to ensure the terms of the Parenting Order are carried out. You must also encourage your child to comply with the Parenting Order. For example, if the Parenting Order specifies that your child is to spend time or communicate with the other parent, not only must you make your child available, but you must also encourage and support them to do so.
What Happens if a Parenting Order is Breached?
If a parent fails to comply with a Parenting Order, it can result in a breach (contravention) of the Order. A contravention can occur in 2 ways:
- Intentional non-compliance: When a person deliberately ignores the terms of the Order, such as preventing the child from seeing the other parent.
- Failure to make a reasonable attempt to comply: This could include not making sufficient efforts to ensure the child spends time with the other parent, as the Order specifies.
Options for Enforcing Parenting Orders
If a Parenting Order is not being followed, there are several things you can do.
- Try to resolve the issue directly
In some cases, the best approach is to try to resolve the issue directly with the other parent. If possible, try to talk to the other parent to see if the issue can be resolved. This might help clarify misunderstandings or work out new arrangements that suit everyone involved. If an agreement is reached, it can be formalised as a Parenting Plan, or you can apply to the Court for new Orders that amend the original Parenting Order.
What is a Parenting Plan?
A Parenting Plan is an agreement between parents that is in writing and addresses the same matters a Parenting Order would. It should be signed and dated by both parties. Unlike a Parenting Order, a Parenting Plan is not legally enforceable. However, in most cases, a Parenting Plan can be used as evidence to show the Court a change was made to the original Parenting Order.
A Parenting Plan can also be used as evidence to show that conduct which would otherwise contravene a Parenting Order, may not constitute a contravention because of the terms of a Parenting Plan made after a Parenting Order.
It is important to remember that informal conversations or agreements are not enough to change a Parenting Order. Any changes need to be formalised through a Parenting Plan or by Court Order.
- Court Intervention
If you cannot resolve the issue directly with the other parent, you can apply to the Court to enforce the Parenting Order. The Court will consider the circumstances and determine whether the Parenting Order has been contravened.
The Court may decide:
- The alleged contravention was not established.
- The contravention was established but there was a reasonable excuse.
- There was a contravention without reasonable excuse.
What is a Reasonable Excuse for Contravening a Parenting Order?
A person may claim a reasonable excuse for not complying with a Parenting Order. The Court will consider whether there was a reasonable excuse for the contravention, such as:
- A misunderstanding of the obligations imposed by the Parenting Order
- A reasonable belief that the contravention was necessary to protect the health or safety of the person alleged to be in contravention or the child or another person (such as in situations of family violence), and the contravention was no longer than necessary to protect the health or safety of the person, child or other person.
What can the Court do if a Parenting Order has been contravened?
If the Court finds that a Parenting Order has been contravened without a reasonable excuse, it has several options for enforcement:
- “Make-Up Time”: The Court may order that lost time with the child be compensated for, through additional time spent with the parent who was denied the original time.
- Vary or Suspend the Parenting Order: If the circumstances have changed, the Court may decide to alter or suspend the Parenting Order to make it more workable for everyone involved.
- Parenting Programs: The Court may require the parent who breached the Parenting Order to attend a post-separation parenting program to improve their understanding of the Parenting Order and how to comply with it.
- Penalties: In more serious cases, the Court may impose penalties such as fines, compensation for any reasonable expenses caused by the contravention, or in extreme cases, even imprisonment.
The Court also has the discretion to order the parent who contravened the Parenting Order to pay the legal costs of the other party or reimburse them for any financial losses incurred because of the contravention.
It is important to note the Court can take the above steps without necessarily making a finding in relation to the alleged contravention.
How Does the Court Decide if a Contravention has occurred?
The Court will assess whether the contravention occurred based on the “balance of probabilities” meaning that the Court will look at whether it is more likely than not that the contravention happened. The parent who claims a contravention has occurred is responsible for proving this to the Court.
If the parent who is accused of the contravention claims a reasonable excuse, they will need to prove this to the Court. In cases where more serious penalties, such as imprisonment, are being considered, the Court will apply a higher standard of proof, similar to criminal cases, requiring the breach to be proven “beyond reasonable doubt.”
Obtaining Legal Advice
Given the complexities involved in enforcing a Parenting Order, it is important to obtain legal advice before taking any action. An experienced family lawyer can guide you through the enforcement process, explain your options, and represent you in Court if necessary.
If you would like advice about these issues, please call Blackwood Family Lawyers on 03 8672 5222 to arrange an appointment with one of our experienced family lawyers.
