Separated parents may or may not require Parenting Orders to regulate how post separation co-parenting will occur. 

For some people, a Parenting Plan will be sufficient, that is, a written record of the parenting arrangements, signed and dated, while for others no written agreement is necessary. 

A written Parenting Plan is evidence of the agreement if the matter subsequently goes to Court, but unless the parties have either a Parenting Order made by consent or made by a Judge, the arrangements are not enforceable.

In this context “enforceable” means that if the Orders of the Court are not complied with there are punishments and/or further Orders that can be made. 

If you have Parenting Orders, and you believe there has been a breach/contravention of the Orders, the following considerations ought to apply.

What is the nature of the contravention?

Section 70NAC Family Law Act 1975 (“FLA”) sets out when a Parenting Order has been contravened. These circumstances are:

  1. When someone intentionally fails to comply with an Order.
  2. A situation where a person makes no reasonable attempt to comply with an Order – thus if a reasonable attempt to comply is made and frustrated by circumstances beyond that persons control it will not be a breach.
  3. Intentionally prevents a person bound by the Order from complying with it.
  4. Aids or abets contravention by a person bound by the Order.

It is also important to consider that it can also be raised as a defence to a contravention that while a contravention may have occurred, the person in breach of the Order has a “reasonable excuse”.

What is a “reasonable excuse” is set out in section 70NAE FLA and can be summarised:

  1. If a person did not understand the obligations imposed by the Order and the Court is satisfied the person ought to be excused. 
  2. The person bound by the Order believed that the contravention was necessary to protect the health and safety of a person (including the child) and the contravention did not last longer than was necessary than to protect that person’s health and safety. 

Process for breach of parenting orders

Before a Contravention Application is filed in most cases a mediation and section 60I Certificate needs to be obtained. This allows the parties to negotiate an outcome to the dispute before the step of having a Court sanction. 

If a resolution cannot be reached, and once the section 60I Certificate has been issued, the Contravention Application Court form setting out the breaches, and Affidavit setting out the evidence relied upon needs to be filed. 

The other party can choose whether to file an Affidavit responding to the allegation of breaches. A date for the Application will be set down and the parties will have the opportunity to cross examine anyone who seek to have Affidavit evidence relied upon.

After hearing the evidence, the Court will determine:

  • Whether the breach is established.
  • Whether the breach is established but there is a reasonable excuse.
  • Determine if an established breach with no reasonable excuse is less serious.
  • Determine if an establish breach with no reasonable excuse is more serious.

If a breach is established there are a number of options available for the Court. These range from making a variation to the original order, Order attendance at parenting or conflict courses, make up time, payment of the other party’s legal costs, payment of expenses, fines, community service or imprisonment. The penalties are set out in Division 13A Part VII family Law Act 1975.

For serious breaches where the Court may consider imprison the standard of proof changes from “the balance of probability” i.e. 50% more likely that not, to the higher “criminal Court” standard of proof i.e. “beyond a reasonable doubt.”

Situation where the Court will regard imprisonment as appropriate is, for example, where a party demonstrates a flagrant disregard for the authority of the Court by continuously disregarding Orders in a serious way such as repeatedly failing to make a child available to spend time without a reasonable excuse. 

What to do if an Order is breached or if you have breached an Order and believe you have a reasonable excuse to do so

The first thing to do is obtain legal advice. The consequences of breaching an Order can be serious and if an Order is being breached it is important to address the situation quickly.

Often with the benefit of legal advice and the matter can be resolved to assist the parties to understand whether or not they are doing the right or reasonable thing. 

For example, if a child is ill. In some situations, a parent may feel justified in not sending a sick child to spend time however the circumstances would need to justify the withholding because illness per se is not sufficient to amount to a reasonable excuse. 

Every case needs to be examined on its merits to determine what the best course of action is something a lawyer will be the best person to assist you with.

Peter Hooper – Hooper Family Lawyers Gold Coast and Brisbane – We are Family Law Specialists, providing Expert Family Law advice and representation. 

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