If you have been through the Family Law Court, or applied for consent orders following negotiation or mediation, you might feel like everything is sorted. However, as Family Law Specialists, at Gordon & Barry Lawyers we know that sometimes complications can arise. Circumstances change, orders may not always be complied with or even clearly understood. What happens next?
What is a Parenting Order?
A Parenting Order is an official direction from the Court imposing legally binding obligations on the parties, who are most often the parents or grandparents of the children involved. These orders usually cover important decisions such as where children will live and who they will spend time with and similar issues affecting the care, welfare or development of a child.
There are three different types of Parenting Order. An interim order sets out what will happen while a Court case is ongoing. This can be essential during lengthy proceedings where the family may be in the Court system for years. Final orders are those made after the final hearing of a matter, when all the evidence has been produced and the case is at an end. Parties can also apply for consent orders to be made. This is where the parties have been able to reach an agreement about what is in the best interests of their children, but they still want their agreement to be enforceable by the Court in case there is a problem.
A Parenting Order is compulsory and each party who is affected by it must take reasonable positive action to comply with it. What this means in practice depends on the terms of the specific Parenting Order. For example, in the recent case of Ingam & Trudy [2017] FCWA 68, the orders stated that the children were to spend time with the father “as agreed between the parties.” The problem was, the parties had not been able to reach an agreement on this point. The father argued that the order imposed an obligation on the mother to make reasonable and bona fide efforts to reach such an agreement. However, the Court held that the mother’s obligation was only to facilitate the children spending time with and communicating with the father as agreed from time to time, and not to hinder, prevent or interfere with them doing so. Without an agreement, there was no obligation.
This is different from the situation where a Parenting Order gives equal shared parental responsibility to two or more people. In that circumstance, there is an obligation to make joint decisions about major long-term issues affecting the children. There is a positive obligation to consult with each other and to make a genuine effort to reach agreement about what is in the child’s best interest.
What is a breach of a Parenting Order?
A breach of a Parenting Order is also known as a contravention. A Parenting Order has been breached (or contravened) if one or more of the parties to it intentionally fails to comply with the order or stops someone else who is required to comply with the order from doing so.
It is important to note that a breach must be intentional or reckless. Once the Court finds that there has been a breach of a Parenting Order, they will ask whether there was a reasonable excuse for that breach. A reasonable excuse may arise where the party did not understand the obligations imposed on them by the order, or where they believed on reasonable grounds that the actions constituting the breach were reasonably necessary to protect someone’s health and safety.
What can I do if there is a breach of a Parenting Order?
If a Parenting Order is breached, you have a range of options open to you. Sometimes, where the breach is not serious or a one-off occasion, it can be best to let it go and take no action. It you feel there is a likelihood that it might turn into a repeated pattern of breaches, it can be a good idea to keep records such as diary notes that can later be used in evidence.
Another option where Parenting Orders have been breached is to seek the assistance of Family Dispute Resolution (mediation) to help you work through the problems that are arising. This can give you a better understanding of the issues that are leading to the breach. While you can’t change a Parenting Order in mediation, you may be able to resolve the issue or come up with an agreed solution that saves you the time, stress and expense of going to Court. If an agreement is reached in mediation, both parties can apply together for a variation of their Parenting Orders by consent.
The third option is to file an Application for Contravention. Before you choose this option it is a very good idea to seek legal advice to ensure that there has been a serious breach of the order and that the other person is unlikely to be able to argue that there was a reasonable excuse for their breach. You will also need to prepare an affidavit setting out all the facts of the breach. Your evidence will need to show that it is more likely than not that the breach occurred in the way you say it did. If your evidence is insufficient, your application will be dismissed, as it was in Toleman & Dickens.[2015] FamCA 555. In this case, the husband’s evidence consisted of a list of dates and times when the wife allegedly refused to bring the child to meet him or refused to answer the phone at his call time. His affidavit provided no detail about these occurrences. The judge concluded “there is insufficient evidence upon which to require the wife to be called upon to answer the allegations.” If you are considering an Application for Contravention, the specialist Family Law advice and assistance that we provide here at Gordon & Barry can be invaluable in making sure that the Court has an opportunity to properly consider your situation.
What should I do if I don’t agree with a Parenting Order?
If you don’t agree with a Parenting Order, you still need to comply with it. Failure to do so may have serious consequences, including the risk of imprisonment for major breaches. The first step is to explore whether you can reach agreement with the other party about a departure from the orders. The orders will remain in force, even if you both agree to ignore them, so it is important to get your agreement in writing. If you are agreeing to a long-term change, you should consider seeking a variation to the Parenting Orders by consent. If you can’t reach an agreement and it is impracticable or impossible for you to comply with the order, there may be steps you need to go through before you can seek a variation of the orders. Here at Gordon & Barry Lawyers we can assist you with identifying your options and negotiating with the other party, as well as processing your application.
If you have any questions about your Parenting Orders, if you have suffered repeated breaches or if you are not sure if you have reasonable excuse for breaching an order yourself, please get in contact with us so we can help you consider your next step.