Sometimes, parenting disputes can lead to parenting orders to be made by the court, which are orders that outline the parenting arrangements for a child or children of a relationship or marriage. These orders will include information about who the child/ren will live with and where, whether one parent has sole parental responsibility, and who the child will spend time with.
Sometimes, these orders can also include information as to where the child/ren attend school, how medical decisions will be made for the child/ren, how communication will be facilitated between the children – such as telephone calls, Zoom, FaceTime or apps like AppClose – or even how travel arrangements with the child will work.
Courts will usually make parenting orders following an agreement being reached between the parties through consent orders or following a court hearing. Parenting orders are legally binding, which means that they must be strictly complied with or else the Court may impose penalties on the contravening party.
What happens if parenting orders are contravened?
If a contravening party breaches any parenting orders, they will have to satisfy the court that there was ‘reasonable excuse’ to breach the orders.
Reasonable excuse has a specific definition under s70NAE of the Family Law Act 1975 and circumstances where it may arise include:
- The contravening parent (known as the respondent) did not understand the obligations imposed upon them at the time of the contravention and the court is satisfied that the respondent ought to be excused in respect of their contravention, or
- Where the respondent contravened the orders as they felt it was necessary to protect the health or safety of a person (including the respondent or the child), and their contravention was not prolonged longer than necessary.
Penalties that can be imposed on the respondent are dependent on the matter and type of contravention, but range from:
- Order the respondent to attend a post-separation parenting program;
- Vary the primary parenting order;
- Compensate the other parent for time lost with the child/ren;
- Order payment of a fine or payment of the other parties’ legal fees (either in part or full);
- Order participation in a community service; or
- Require the respondent to enter a bond.
The non-contravening parent, if they believe that the other parent has contravened the orders, can enforce previous parenting orders as part of their existing application in their parenting matter or make a separate contravention application.
However, it is important that before making any contravention applications that you engage in legal advice, as unsuccessful applications can result in costs orders made against you.
What happens if the child does not want to see their parent?
In some circumstances, children may refuse or be unwilling to spend time with the other parent, but this is not a reasonable excuse. Per s60CC(2)(a) of the Family Law Act, children have a right to a meaningful relationship with both parents. This is one of the factors that the court will consider when determining parenting arrangements.
This means that both parties have a positive obligation imposed upon them to ensure that they do what they can to facilitate a relationship between the child and the other party.
If you require more information or would like to discuss your parenting matter with us, please contact us on (03) 9557 2915 or [email protected] to assist you.
