What rights do parents have when the other parent has not complied with Orders of the Family Court of Australia or Federal Circuit Court of Australia in relation to parenting Orders?
Generally speaking, the NSW Police are unable to deal with complaints of Orders being contravened and this can cause difficulty with parents attempting to co-parent in accordance with Orders.
The first direction provided by the Family Law Act is for parties, in the event of non-compliance, is to attempt Family Dispute Resolution in an effort to resolve the issues stemming from the contravention. Where Family Dispute Resolution is not successful, the Family Law Rules provide the ability for parties to file a Contravention Application.
A person is deemed to have contravened a parenting order they are bound to abide if the person, breaches the Order intentionally, does not make a reasonable attempt to comply, prevents another party who is bound from complying or assists a party who is bound to commit the breach.
The Family Law Act allows for a defence to a contravention application, being a “reasonable excuse” for a contravention. The reasonable excuses are outlined in S70NAE of the Family Law Act. In broad terms, they can be in circumstances where a party fails to understand their obligations, a party holds a reasonable belief that the contravention was necessary, or if the contravention was not longer than necessary to protect a person. An example of a reasonable excuse is where a party contravenes an Orders as to comply would put a party in harms way.
If the Court finds that there is no reasonable excuse, the Court has the capacity to make Orders such as:
- The contravening party attend post-separation parenting programs;
- Make up time to occur between the children and the applicant;
- Compensation of costs;
- Changing the Orders to be more enforceable.
If you have issues with parties complying with Orders made by the Court, contact Adams & Partners today.