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Enforcement of Court Orders

What happens where you are found to have contravened Court Orders without a “reasonable excuse”?

It is an all too common occurrence where one person may breach a Court Order by not making the children available to spend time with the other parent. Whilst we use this example, breaching Court Orders can happen in both property and parenting matters.

The parent who is in breach of the Court Orders will likely argue that they had a “reasonable excuse” for breaching the Court Orders.

  1. A person will be taken to have a “reasonable excuse” for contravening the Court Orders if they can prove to the Court that: At the time of the contravention, they did not understand the obligations imposed by the Order on them and the Court is satisfied that they ought to be excused in respect of the contravention; or
  2. They believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of the children and the period during which because of the contravention, the children did not spend time with the other parent was not longer than was necessary to protect the health and safety of the children.

There is an obligation on parties to take reasonable steps to deliver the children to spend time with the other parent at the commencement of their time.

Standard of Proof

The Applicant bears the onus of proving the contravention on the “balance of probabilities.”

The civil standard of proof also applies to the determination of whether the other parent had a “reasonable excuse” for the contravention.

What are the possible remedies?

There are a number of remedies available to parties summarised below.

Subdivision B

The Court always has the power to vary the Order and can make new Orders having regard to the best interests of the children.  The Court will also have regard to any parenting plan that has been entered into since the Order was made.

Subdivision E

If the Court finds that the parent did contravene the Consent Orders without “reasonable excuse” (less serious contravention), then the Court has discretion to make a number of Orders which include that the parties attend a post-separation parenting course, make a further parenting Order that compensates the other parent for the time they did not spend with the children, adjourn the proceedings to allow the parent to apply to the Court to vary the Consent Orders, make an order that the breaching parent enter into a bond and consider making an order for costs.

Subdivision F

If the Court is satisfied that the contravention is of a more serious nature, then a number of penalties are available, including a community order, a fine, or imprisonment.

Where a Court imposes a penalty the Court must be satisfied beyond reasonable doubt that the grounds for making such an order exist.  Thus, stricter rules of evidence apply.

Costs Consequences 

In the event a Court dismisses a contravention allegation, or finds that a “reasonable excuse” applied, the Court must consider ordering costs against the losing party.

If the court finds that a contravention of a more serious nature has occurred, then the Court must order costs against the parent in breach, except in circumstances where this would not be in the best interests of the child.

 

We suggest seeking legal advice if you have questions regarding the interpretation of your Court Orders because there can be serious consequences for breaching Court Orders.

 

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