The process for dealing with a party’s failure to comply with parenting orders is contained in Part VII, Division 13A of the Family Law Act 1975 (‘FLA’).
Parenting orders have attached to them a fact sheet which outlines this staged and is part of the education of each participant in proceedings.
A contravention will occur when a person bound by an order intentionally fails to comply with the order or makes no reasonable attempt to comply with the order. A person not bound by the order can contravene the order by intentionally preventing compliance with the order by a person who is bound by it or aiding or abetting a person bound by the order to contravene it.
Where a person has been found to have contravened a parenting order, the FLA allows for a respondent to be excused if he or she has a reasonable excuse. There is no legislative limit to what a reasonable excuse may include, however two specific instances are outlined in the FLA, these being:
- The person contravening the order did not understand the obligations imposed on the person bound by the order;
- The person contravening the order believed on reasonable grounds that the contravention was necessary to protect the health or safety of a person, which may include the child or the person who made the contravention.
The standard of proof for establishing a contravention for finding a reasonable excuse exists is the civil standard of a balance of probabilities. However, where the court imposes a penalty of either a fine, community service order or imprisonment than the standard of proof is the criminal standard of beyond reasonable doubt.
Where a the Court finds a contravention has occurred it will be considered in one of three levels:
- Contravention with a reasonable excuse. The Court may apply remedial measures such as make up time.
- First and/or not too serious breach without a reasonable excuse. The Court may apply remedial measures or less severe penalties such as a bond.
- Serious or subsequent breach with no reasonable excuse. This is the most serious level and the Court may impose serious penalties including fines, community service or imprisonment.
If you are having difficulty securing compliance with parenting orders or need advice about your obligations pursuant to orders, please do not hesitate to contact Nicholes Family Lawyers.