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Parenting Orders –What can you do if one party breaches the Order?
Contravention of parenting orders
Pamela Cominos, Lawyer
, for Single Mum Australia
It is the case that parenting Orders made by consent or by the Court are sometimes breached by one of the parties and the reasons for this can be varied and many.
Application for Contravention of Orders are usually filed in the Federal Magistrates Court, but can be filed in the Family Court of Australia, where the matter is considered complex such as where allegations of sexual abuse or physical abuse of children have been made. Application for a Contravention can be made on all or any of the following grounds - where there are live with orders and one party removed the child/ren from the care of that person or refuses to deliver or return the child/ren to that party , spend time with orders – where one party hinders or prevents a person and a child/ren spending time together in accordance with the orders , where one party denies or prevents a person communicating with child/ren in accordance with the orders or where one party’s conduct has hindered or prevented a person from fulfilling his/her obligations under the Order.
If you are considering enforcing parenting Orders here are some points that you must consider:
An order cannot be complied with if one party did not know about it- Has the party been properly served, are they aware that the Order exists? Do they understand their obligation under the Orders?
Is the order current? Are the orders current and binding or were they for a specific period of time and that time has now lapsed or have there been subsequent Orders made?
Is the Order enforceable? In other words does it specify what is to happen, when it is to happen, by whom, where and how? For example an order that states that one party have reasonable telephone communication with the child/ren is too vague and uncertain and difficult to enforce.
What is the most cost effective option to remedy the situation?Is making an Application for Contravention really the best solution for your matter, perhaps family dispute resolution may be appropriate or an initial letter from your legal practitioner to the other side may remedy the situation in the first instance. Consider an Application in a Case to Vary orders if considered appropriate
Has one party taken the child/children in breach of parenting Orders and is refusing to return the child/ren? Perhaps an Application for a Recovery Order may be more effective. Noting that the child’s best interest is the paramount consideration in deciding whether to make a recovery order.
Has the breaching party provided a “reasonable excuse” for contravening the orders? If the Court finds that a person has breached a parenting order, it will consider whether a reasonable excuse has been made by the contravening party - For example where the person who breached the orders believed that the breach was necessary to protect the health or safety of a person (including the breaching party or the child) and the period of time of the contravention was not longer than necessary to protect the health or safety of the child or the breaching party.
The applicant has the burden of proving on a balance of probabilities - that the breaching party intentionally failed to comply with the order or made no reasonable attempt to comply with the order or intentionally prevented compliance with the order by a person who is bound to it.
What penalties can the Court impose for breaching a parenting Order?
- Order the party to attend a post separation parenting course
- Order make-up time for the time losses with the child as a result of the contravention
- Require the person to enter into a bond
- Order the party to pay some or all of the applicant’s legal costs
- Require the person to participate in community services
- Order that a fine be paid
Finally if you are considering filing an Application for Contravention of Parenting Orders it is very important that you seek the advice of a legal practitioner skilled in this field.
Principal Solicitor – Cominos Lawyers
4 September 2011
This article contains general information only. For advice regarding your own personal circumstances, always seek individual advice from a qualified professional. Read the full singlemum.com.au Disclaimer here
Pamela Cominos is the Principal Family Lawyer at Cominos Lawyers, Sydney who specialise in all aspects of Family Law.
Pamela holds a Masters of Arts degree together with a Bachelor of Laws Degree from University of New South Wales.
Pamela is passionate about being a lawyer and she is successful in assisting her clients in matters that involve complex parenting and property issues. Pamela is a skilled advocate and will represent you at Court with confidence and care. She is a pragmatic and compassionate solicitor who gives her undivided attention to your matter.
Pamela is committed to her family law practice and in particular women in domestic violence. She is on the legal aid Family Law Panel and is a referral solicitor for a number of Women's Refuges in NSW.
You can read Pamela Cominos' full profile here