Parenting orders can be made by consent or by order of the court, and will set out the parenting arrangements for your child or children moving forward. Once parenting orders have been sealed by the court, the parties to the orders are bound by the parenting arrangements contained therein.
If you are party to a parenting order, this means that:
- You have a positive obligation to actively effect the terms and ensure that you comply with them. For example, if your child or children say they do not want to go to the other parent’s house, you should not only compel your child to go, but actively encourage them to do so.
- You are bound by the terms of the parenting order even if there is a change in the needs and/or circumstances of you, the child or children, or your former spouse. If the change in needs and/or circumstances cause an inability to comply with the parenting order, the order will need to be amended.
- The parenting order remains in place until it is amended by:
- written agreement between the parties (by entering into a new parenting plan or mutually applying for consent orders that vary the existing orders); or
- by further order of the court.
- You cannot send the child overseas without the written consent of the other parent or an order of the court if the parenting order has made provision for parenting time and parental responsibility. Child abduction is an offence punishable by imprisonment for three years.
How is a parenting order contravened?
An order is contravened (i.e. breached) when one party:
- Intentionally fails to comply with the order;
- Fails to make reasonable attempts to comply with the order;
- Intentionally prevents compliance with the order by a party who is bound by it; or
- Aids or abets a contravention of the order by a party who is bound by it.
A contravention will only be ‘excused’ where the party who contravenes the order can establish that there was a reasonable excuse for breaching the order.
What are your options if your former spouse has contravened parenting orders?
Firstly, we recommend attempting to resolve the dispute by attending Family Dispute Resolution (FDR). If it is not suitable to attempt to resolve the matter between yourselves at FDR, you can apply to the court for a contravention order. There are three methods of applying to the court.
Application in a case
If there are proceedings on foot, you can file an ‘Application in a Case’ . This is effectively an application that the parenting arrangements contained within the order are resumed or varied.
If you seek to implement the orders, you can file an application with the court, namely an ‘Application – Contravention’. Before filing an ‘Application – Contravention’, you should consider the result that you want to achieve. In terms of the remedies available. The court may make an order that:
- Varies the existing order;
- Ensures the arrangements set out in the order resume;
- Compensates a person for lost contact time (by ordering ‘make up time’);
- Requires one of the parties to pay a ‘bond’ (and they get that bond back when they return the child);
- Puts a person on notice that if the person does not comply with an order, the person will be punished;
- Punishes a person by way of a fine and/or imprisonment; and/or
- Make further specific orders, such as:
- An order that you attend a post-separation Parenting Orders Program;
- A location order requiring other people and/or organisations to give information about where you and/or the child may be located;
- A recovery order issued to the Marshal of the Court, Australian Federal Police, state police and territory police, requiring that the child be located and delivered to a person nominated on the recovery order (usually the applicant).
Application to vary the primary order
To file an application to vary an order, you will need to file an ‘Initiating Application’ with a supporting affidavit. This affidavit will need to outline the significant change of circumstances that have arisen, such that it is in the best interests of the child or children that the parenting orders be varied.
It is quite a difficult to establish that a change in circumstances are significant enough to warrant the alteration of existing parenting orders.
If you have any concerns about your obligations under a parenting order, or the contravention of a parenting order, our family law team can assist you to understand your legal rights and responsibilities, as well as your options moving forward.