Compliance And Enforcement Of Parenting Orders
The New ``Contravention List``
You must comply with parenting orders made in court and each person must follow that order.
You must take all reasonable steps to ensure that the terms of the order take effect. You must also positively encourage children to comply with orders. Orders will remain in force until a new parenting order or parenting plan changes in some way, however if your needs or circumstances change, then you may be able to seek a variation.
If you have not complied with in order, the courts may consider whether you had reasonable excuse? Reasonable excuse could occur if you did not understand the obligations of the order or you contravene the order to protect the health and safety of a person including the child. However you must not continue contravening the order once the health or safety risk has passed.
Filing A Contravention Application
This is the final step where another party simply does not comply with court orders and unique to seek our legal advice.
A person contravenes or breaches in order, that has not been altered by a parenting plan, if they intentionally failed to comply with the order or make no reasonable attempt to comply with the order, or intentionally prevent compliance or help or assist a contravention. In such cases you may need to file an Application for Contravention.
For most of the above orders we provide fixed fee estimates. Visit our fixed fee office page for further information.
Urgent Orders - Recovery Removal & Risk
Please note where the children are at risk or have not been returned, or there is a likelihood of them being removed from the jurisdiction, or area, please contact us urgently. . In such cases, immediate action is sometimes required and we can instigate the same within 24 hours or less
There is no one simple solution. In such circumstances that doesn’t affect the children or both parents and resolution of matters, so that the disputes do not linger in court is our specialty. . Contact us to discuss your various options.
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Changing or Varying Final Orders
In many cases, parenting orders are made when children are quite young. Due to the changing nature of families and the needs of children, arrangements made when children are young may not be suitable or applicable as children grow older and family circumstances change.
If a party seeks to vary final orders and no agreement can be reached between the parties, an application must be made to the Court to change or vary final parenting orders.
A ``Significant Change In Circumstances``?
If there are final parenting orders, a party seeking to change or vary these orders must demonstrate to the Court there has been a “significant change in circumstances” from those at the time the final orders were made.
A “significant change in circumstances” is known as the rule in Rice v Asplund (1979). The effect of this rule is to prevent endless litigation between parties and to limit the harm of litigation on families, particularly children. Some instances of this are:
A party is seeking to relocate with a child;
One or more of the parties has re-married or re-partnered; or
There has been abuse of a child.
If there is a significant change in circumstances that warrants a party to request the court to vary or change in the arrangements.
What Is A ``Contravention?``
Contravening a parenting order means disobeying the parenting order. For example if a person:
Does not comply or makes no effort to comply with the terms of the parenting order; or
Deliberately prevents or tries to prevent another person who is bound by the order from complying with the order; and
Does not have a reasonable excuse for contravening the order; then they may have breached or contravened a Court order.
Most parenting orders have terms about where the children will live and who they will spend time with. Therefore a contravention of the orders might occur if a person refuses to deliver or return the child to a person with whom the child lives or spends time with. For example, if there are orders for a child to see their grandparents every second Sunday and the father refuses to let the child go, then he may be contravening the parenting order.
Breached Parenting Orders
If the Court finds that an order has been breached, depending upon the seriousness of the contravention, the Court has the power to make a variety of orders. For example, the Court could make an order for:
Make up time to compensate for the time that the person missed;
A person to attend parenting education programs such as a post separation parenting program;
A person to enter into a bond with the Court to do certain things for a period of up to 2 years. This may involve attending appointments for counselling or being of “good behaviour”. Good behaviour could include making sure that a person complies with the Court orders in the future;
A fine to be imposed;
Imprisonment for up to 12 months; and/or
The party who breached the orders to pay the other party’s legal costs. In addition, the Court can decide to vary or change your original parenting order as part of the contravention proceedings. This can be done even if you did not apply for the Court to change the order. Often the first thing the Court will do when a breach has been proved is assess whether an order needs to be varied to prevent any further problems in the future. The most common outcomes in contravention applications are orders for make up time and for the breaching party to attend a parenting course, especially the first time a breach of the Court orders is found to have taken place.
Should I Be Worried About Court Costs?
The Court is required to consider whether to make an order for the applicant to pay the respondent’s costs in the following circumstances:
The contravention application is dismissed because the alleged breach could not be proved.
A respondent successfully argues that there was “reasonable excuse” for contravening the order.
There have been contravention applications made by the applicant in the past which have failed.
The Court must consider making a costs order against the respondent if it finds that there has been a contravention of the orders.
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