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“They aren’t coming back and I don’t care what the Orders say”…

By Abbi Golightly

These are the words that strike fear into the hearts of most separated parents, particularly those who are the primary caregiver of children of any age.

What do you do?  Who do you call?  What rights do you have to ensure that your children are returned to their stable environment?

Breaches of parenting Orders are considered very serious by the Court.  As with the decision to separate, the Christmas and New Year period seems to bring about a spike in client’s asking questions about “what if they don’t come back?’’

It is an emotional rollercoaster which is to some extent not assisted by the processes put in place by the Family Law Courts.  That being said, the Courts are here to provide assistance to parties who have had to endure their time with their children being unreasonably and unfairly reduced or refused.

Attached to every set of parenting Orders is an information sheet which details the consequences for breaches of parenting Orders, which can be very serious.  These consequences include:-

  • The Court can vary the Order breached;
  • The Court can order that the breaching parent attend a post separation parenting program;
  • Compensatory time can be Ordered for the parent who lost time with their child;
  • A bond can be Ordered to be paid to secure future compliance with the Court Orders;
  • Make a Costs Order against the breaching party for any Court proceedings that have had to be commenced because of the contravention;
  • Make an Order that you pay compensation to the non-breaching party as a result of the contravention for expenses such as travel etc;
  • Order that they participate in community service;
  • Order that a fine be paid; or
  • Order a period of imprisonment.

The nature and extent of the consequence depends upon the finding of the Court hearing the application.  The Court can make a number of findings including:-

  • That there has been no contravention;
  • That there has been a contravention but there was a reasonable excuse;
  • That there has been a contravention but that it was not a serious contravention and there was not a reasonable excuse; and
  • That there has been a contravention and it was a serious contravention and there was not a reasonable excuse.

What then is a contravention of an Order or Parenting Plan?  A person contravenes when they:-

  • Intentionally fail to comply with the Order or Agreement;
  • Makes no reasonable attempt to comply with the Order or Agreement;
  • Intentionally prevents compliance with the Order or Agreement by someone who is bound by it; or
  • Aids or abets a contravention of the Order by a person who is bound by it.

By including words such as “reasonable” in it’s definition of contravention, the Family Law Act enables argument about whether or not there should be punishment for a contravention.  That means that a Court can find that there has been a contravention of an Order, but that the person contravening the Order had a reasonable excuse for doing so.  A reasonable excuse can include:-

  • Not understanding the obligations imposed by the Order or Agreement; and
  • Contravening an Order or agreement because they reasonably believed that it was necessary to do so to protect the health and safety of the child or children

The Christmas period is a very important time for all families and having your children withheld from you would be devastating.  It is important however to ensure that you comply at all times with the terms of any Court Order in place regarding your children or any Parenting Plan in place regarding your children.

If you consider that there has been a contravention of your Orders or Agreement, please contact Attwood Marshall Lawyers without delay as it is important to act promptly to either swiftly have the children returned to your care or make arrangements for that to occur with appropriate ‘’make-up’’ time being arranged.

If you have any queries regarding breaches of parenting Orders or any family law matter in general, please do not hesitate to contact the team at Attwood Marshall Lawyers on 1800 621 071 or email info@attwoodmarshall.com.au.

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Jeff Garrett

Jeff Garrett

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