In Australia, when spouses who share children divorce or separate, they will need to reach an agreement regarding the parenting arrangements for their children, and the court may also issue a parenting order on these matters. So what does a parenting order cover? And what should you do if someone breaches a parenting order? Today we will walk through the key things to know about parenting orders.
What is a parenting order?
A Parenting Order is a series of orders made by an Australian court regarding the arrangements for a child’s care, and it has legal force. The court can issue a parenting order based on an agreement between the spouses, or following a court hearing or trial. Every person affected by the parenting order must comply with each of its requirements.
What does a parenting order cover?
Under the relevant provisions of Australian family law, a parenting order must include one or more of the following matters:
1. The person or persons with whom the child is to live;
2. The time the child is to spend with another person or other people;
3. The allocation of parental responsibility for the child;
4. If two or more people are to share parental responsibility for a child, the form in which those people will consult with each other on decisions made in exercising that responsibility;
5. The child’s communication with other people;
6. The maintenance of the child;
7. Any aspect of the care, welfare or development of the child, or any other aspect of parental responsibility for the child.
What situations count as breaching a parenting order?
Everyone covered by a parenting order must comply with it, and no one is permitted to breach the order. A breach of a parenting order mainly manifests in the following four ways:
1. A person bound by the order intentionally fails to comply with it;
2. A person does not make a reasonable attempt to comply with the order;
3. A person intentionally prevents someone bound by the order from complying with it;
4. A person aids or abets someone bound by the order to breach it.
Specifically, the following situations all constitute a breach of a parenting order:
1. Removing a child from someone’s care;
2. Refusing or failing to hand over or return a child to a person;
3. Interfering with any power, duty or responsibility that a person exercises or performs under the parenting order;
4. Hindering or preventing a person and the child from spending time together or communicating with each other as set out in the parenting order.
Examples of breaches of a parenting order
Example 1:
The Family Court ordered Mr A and his spouse Ms C to share equal parental responsibility for their child, requiring the parents to consult each other on major long-term decisions about the child and to reach agreement before any decision is made. However, Mr A unilaterally made major decisions about the child’s education and medical care without consulting Ms C, which breached the parenting order.
Example 2:
The parenting order provided that Ms G could live with the child and that the father could spend time with the child during set periods. However, the father refused to return the child to Ms G at the end of the agreed time, which breached the parenting order.
Example 3:
The Family Court may have ordered that Mr D’s child live with him and also spend time after school with Mr D’s former spouse, who is the child’s mother. If Mr D were to collect the child from school early and prevent the child’s mother from collecting the child herself and spending the time with the child that she is entitled to, then Mr D would be breaching the parenting order.
What should you do when a parenting order is breached?
If your former spouse breaches a parenting order, you can file a “Contravention Application”. However, before commencing court proceedings or filing a Contravention Application, you may be required to first attempt mediation or negotiation with the other party to reach a resolution, unless there are reasonable grounds to be exempted from this step.
What counts as a reasonable excuse for breaching a parenting order?
The following three situations may be accepted by the court as a Reasonable excuse:
1. You did not understand what you were required to do under the parenting order.
2. You had reasonable grounds to believe that breaching the parenting order was necessary to protect the health or safety of your child or another person.
3. The period during which you did not comply with the parenting order did not exceed what was reasonably necessary.
What may not be accepted by the court as a reasonable excuse?
1. You disagree with the parenting order.
2. Your reasons are personal, such as simply not liking the other party’s new partner.
3. Your child does not want to live with your spouse.
Note: A child’s unwillingness to spend time with their father or mother is unlikely to meet the statutory requirement for a reasonable excuse. Therefore, if a parenting order requires the child to spend time with the other party on a regular basis, the parent concerned has an obligation to facilitate the child’s contact and communication with the other party, or to apply to have the existing parenting order changed.
What are the consequences of breaching a parenting order?
In proceedings for a breach of a parenting order, the court may make the following orders:
Situation 1: Reasonable grounds apply
The court may, in its discretion, require the person who breached the parenting order to provide compensation (make-up time).
Situation 2: No reasonable grounds apply
The court will make an order requiring the party who breached the parenting order to attend a post separation parenting program.
The court may require further parenting orders to be made, to compensate for the time the person did not spend with the child as a result of the current breach.
If the person who breached the parenting order has no reasonable excuse, the court may impose a corresponding fine and order compensation.
The person who breached the parenting order may also be required to pay some or all of the legal costs incurred by the other party or parties in the proceedings, among other consequences.
Final thoughts
Spouses who are divorcing or separating should negotiate reasonable arrangements for the future care of their children, and it is also worthwhile to put together a parenting plan. This not only helps to create a healthy and safe environment for the child, but also avoids unnecessary disputes between the parties down the track. If the court has issued a parenting order but you are unsure whether one party has breached it, or you are dealing with a breach and do not know how to enforce your rights, we recommend seeking professional legal advice to find a more appropriate solution.
