What is a Parenting Order?
Parenting Orders made by the Courts usually deal with:
1. where the children are to live,
2. how much time the children are to spend with each parent, and
3. the level of communication between a child and parent.
We help our clients to negotiate Parenting Orders, and assist them in having those Orders formalised by the Court. Sometimes we are approached by clients complaining of the other party not abiding by the Orders, or breaching the Orders.
Breaching a Parenting Order
Examples of parties breaching a Parenting Order may include:
- refusing to return the children as required by the Orders,
- refusing to allow the children to spend time with the other parent pursuant to the Orders,
- refusing to allow the children to communicate with a parent as provided for in the Orders.
A Court order needs to be taken very seriously. If a party does breach a Court Order there can be serious penalties. A serious breach of a Court Order, may result in the person breaching the Order being imprisoned. While this is rare, it has happened in the past.
What happens if there is a breach of Parenting Orders?
If a party breaches a Court Order, the innocent party can take the matter back to court with a Contravention Application. The Contravention Application allows the non-offending party to allege that the offending party has breached the order and should be punished for doing so.
Division 13A of the Family Law Act sets out a three stage parenting regime when it comes to compliance with parenting orders. This approach to parenting compliance is designed to educate parents about their responsibilities under parenting Orders and to impose sanctions for breaches of such Orders.
Requires the Court to provide an explanation to each party to a Parenting Order about their obligations under such Orders and the consequences of contravening such Orders. This information must be included in the Parenting orders.
This stage is invoked if a breach of the Orders occurs. Where the breach complained of is the first such breach of the order, the Court is required to make an Order requiring the defaulting party to attend an approved parenting course. The aim of this stage is to educate parties about their obligations under parenting Orders and to prevent further breaches. The Court is also empowered to compensate the innocent party for any loss suffered as a result of the breach such as “make up time” with the children.
The third stage involves the court imposing serious penalties such as fines and imprisonment as a result of a second or subsequent breach of a parenting order. (A “stage 3” penalty can be imposed for a first breach if the breach is sufficiently serious).
If the Court finds that there has been a more serious contravention of an Order, then it must consider making a costs order against the person who breached the order.
Note - It is not possible to issue a Contravention Application if a party has contravened a Parenting Plan (as opposed to a Parenting Order).
Defence for breaching a Parenting Order
It is a defence to a Contravention Application if the offending party has “a reasonable excuse” to breach the orders. For example, if complying with the orders would put the child’s health or safety at risk.
In the case of McClintock and Levier (2009), the mother had on six occasions breached the Parenting Orders. The mother admitted the contraventions without reasonable excuse. The mother was initially sentenced to 6 months imprisonment by the court (the sentence was later reduced on appeal).
It is certainly our strong advice that clients abide by Parenting Orders. There may however be certain circumstances where you may have a reasonable excuse for breaching Orders. Before breaching any orders, we suggest that you contact our Family Law department for advice.