The relevant legislation is Division 13A of the Family Law Act 1975 (“the Act”).
One way to deal with another party who is not complying with Court Parenting Orders is to file a Contravention Application. The Application would include you pointing out what part of an existing Parenting Order had been breached, the dates, times and manner in which such breaches had occurred. You do need to be precise.
The definition of contravening a Parenting Order under the Act requires that the person intentionally failed to comply or made no reasonable attempt to comply or intentionally prevented another person to comply or aided a contravention of a person bound by the Parenting Order.
It is open to the Court to make the following findings:
- That there has been a Contravention alleged but not established;
- That there has been a Contravention alleged and established but with a reasonable excuse for the Contravention;
- That there has been a Contravention alleged and established with no reasonable excuse for the Contravention.
What is a reasonable excuse is set out specifically in section 70NAE of the Act. A reasonable excuse would include:
- That they did not understand their obligations under the Parenting Order;
- That they believed it was necessary to protect the child’s health or safety;
- That it was necessary to protect their own health or safety.
If the Court finds that a breach of the Parenting Order has occurred the possible penalties it would impose include:
- To vary the existing Parenting Order;
- Compensation of time lost;
- That the non-complying party pay part or all of your legal fees;
- A fine;
- A bond;
- Community Service;
- A prison sentence.
There are some things you need to look out for before making such an Application such as a subsequent Parenting Plan or agreement between the parties either in writing or through established practices. It is crucial you obtain legal advice prior to filing such an Application to ensure this is the appropriate Application to make.
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