As a general rule, parties are required to comply with Court Orders, whether made on an interim basis or a final basis. However, there will be instances where a party contravening orders or neglects to comply with Court Orders. In those scenarios, the complying party may often feel helpless or frustrated as to the outcome of the proceedings as, on the one hand, they may have theoretically achieved Orders that reflect their desired outcome however, practically, are unable to enforce them without taking further legal action. This article will specifically focus on situations where the party with whom the child lives continues to contravene parenting orders.
Legal Obligations Regarding Time with Non-Resident Parents
Section 65N and 65NA of the Family Law Act 1975 (Cth) specify that parties have obligations to not hinder, prevent or interfere with a child’s right to benefit from spending time with, or communicating with, their non-resident parent. Additionally, parents have a positive obligation to facilitate time by encouraging their children to spend time or communicate with their non-resident parent. Case law such as TVT & TLM [2006] FMCAfam 20 has tried to outline what that obligation comprises of so as to provide guidance to parents as to the extent of their obligations. For example, a mere request that a child telephone the other parent, or come to the phone, is insufficient and, similarly, with respect to facilitating physical time, it would be unsatisfactory to tell your child words to the effect of “If you wish to go you can go, make up your own mind” as the parent’s authority ought to be exercised in the same manner as if a parent would ensure that their child attends school everyday.
Contravening Orders of Spend Time
According to section 70NAC of the Family Law Act 1975 (Cth), a parent has contravened a spend time with order when:
- The parent has intentionally failed to comply with the Order; or
- The parent has made no reasonable attempt to comply with the Order; or
- Intentionally prevented compliance with the Order; or
- Aided or abetted a contravention of the Order.
Resolving Disputes Before Court Intervention
The Court has an expectation that parties will attempt to resolve their disputes between themselves prior to seeking intervention, except in certain situations only, for example, where it is not safe to do so. Often, there will be Orders that requires parties to attempt alternate dispute resolution or mediation. This means that parties should try to ventilate their concerns and attempt to reach agreement as to compliance with the Orders, or a potential variation of the Orders by consent. A variation of any parenting Orders can also be documented via a parenting plan, such that the effect of the parenting plan is to override the Orders of the Court (see sections 70NBA and 70NBB of the Family Law Act 1975 (Cth)).
Mediation and Court Applications
If you are not successful in the mediation, the dispute resolution practitioner will generally issue a 60I certificate pursuant to section 60I of the Family Law Act 1975 (Cth) to demonstrate that parties have attempted mediation but were unable to resolve their dispute. Where it is not feasible to engage in alternate dispute resolution, or where parties have exhausted that method and achieved no outcome, a parent may consider filing an Application in a Proceeding seeking remedy for a party that has contravened Orders. As part of the application, you may seek a variety of remedies, including makeup time and community service and including as serious as sending the non-complying party to jail. Often however, the Court will take a practical view, noting particularly where the contravening parent has the full-time care of the child, to order that they engage in appropriate parenting courses such as Parenting After Separation to enhance their understanding of relationship dynamics and facilitating a relationship between the child and both parents after separation.
Reasonable Excuses for Non-Compliance
Bear in mind however, that the non-complying party may assert that they have a “reasonable excuse” for not facilitating time with your children, for example, if the child was ill or it was not safe to do so due to allegations of family violence. A “reasonable excuse” is defined as:
- Any circumstance in which a parent contravened an Order to facilitate time because, or substantially because, he or she did not understand the obligations that they were bound by; or
- Any circumstance where a parent believed on reasonable grounds that the actions were necessary to protect the health and safety of a person, whether that person is the child or otherwise.
Case Study: Leopold & Leopold [2022]
In the case of Leopold & Leopold [2022] FedCFamC1F 977, the Court found that the Mother had contravened parenting interim Orders on 11 occasions by not facilitating time between 2 children and their father however, that she had a reasonable excuse to do so given that the eldest child had commenced therapy by reason of fears and anxieties he suffered with respect to spending time with his father, including a diagnosis of Panic Disorder, General Anxiety Disorder and Post Traumatic Stress Disorder which the Mother felt would worsen if she, in fact, facilitated time between the child and his father in accordance with the interim Orders. It was found that these anxieties were worsened by the Mother having inappropriately given the child a GPS device so as to be able to track her son whilst he spent time with his father. Whilst the Court found that the Mother’s behaviour in doing that served to heighten the child’s anxiety and demonstrated no insight on her part, the Court ultimately found that she had a reasonable excuse to not facilitate time on the 11 occasions identified, to have done so would have been extremely distressing for the son.
To Sum Up: Legal Advice and Considerations
In such scenarios, the Court is less likely to be critical of the non-complying party; however, it may still find that the party breached Court Orders and then make Orders for an appropriate remedy. You should obtain appropriate legal advice before embarking upon Court proceedings. To know more about this, contact Michael Vassili Lawyers today!
