What can I do if Parenting Orders are not being followed

I have parenting Orders but they are not being complied with — should I bring a Contravention Application?

Unfortunately, in some instances even after interim or final Orders have been made, a party will fail to comply with such Orders. So, what can person who has been wronged do? Section 70NAC of The Family Law Act states that a party contravenes a parenting order if they:

1. intentionally fail to comply with the order; or
2. make no reasonable attempt to comply with the order.

Taking a commonsense approach, if the alleged contravention is minor in nature or an isolated incident, it can simply be ignored and the parties can more on from it without taking further action. It may be able to be addressed directly between the parties communicating directly themselves to rectify the issue. In other instances, a reminder from a lawyer to the non-complying party of their obligations pursuant to the Orders may be enough to get things back on track. It may be the case that parties jointly may concede that the arrangements provided for in the Orders are no longer suitable and then the parties may like to re-visit the Orders through mediation or through negotiations between lawyers to tweak the arrangements.

There is also the option of filing a Contravention Application with the Court. The Application is filed with the Court and seeks Orders to address the other party’s actions. Such an Application needs to refer to the Orders alleged to have been breached and then set out in detail the specific allegation about the non-compliance.

The Court will then determine if they are satisfied (beyond reasonable doubt) that the Order has been contravened and if so, whether the contravening party had or did not have a reasonable excuse for doing so.

The Court will consider the seriousness of the alleged contravention and also whether the contravention is an isolated incident or has occurred previously. If there has been a contravention, there are various courses of action that the Court take to remediate it including:

• Ordering make up time;
• Directing that Orders be amended;
• Requiring the party to attend a post-separation parenting course;
• Putting the contravening party of a monetary bond;
• Ordering the party pay legal costs;
• Ordering the party pay a fine; and
• In contraventions that are serious or repeated or deliberate, ordering community service or a term of imprisonment.

The appropriate approach to an alleged contravention can vary. You should contact one of our family lawyers on 03 5445 1000 if you would like further information about the best way to address the issue of a party not complying with Orders, or make an online appointment.