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Parenting Orders – Compliance or Contravention - Enforcement

13/09/2021

Watson & Watson Lawyers act for parents in parenting cases. 

The failure to comply with Orders by one of the parents can require enforcement of Parenting Orders.  The most common circumstance where parenting orders are not complied with is where one parent prevents or fails to facilitate the children spending time with the other parent. 

Watson & Watson recently acted for the father in relation to an Application for Enforcement and in an Application against the mother for contravention of final parenting Orders made by the Family Court of Australia. 

Background Facts

The mother and the father both lived in Sydney and had one child.  When the child was 6 years of age the mother and father separated and both continued to live in Sydney.  The parties wished to formalise property division and at the same time entered into Consent Orders in relation to parenting.  The property and parenting Orders were approved by the Family Court of Australia.  The Parenting Orders provided that the child live with the mother and spend time with the father. 

The Orders envisaged a situation where at some time in the future, the father may not be living in Australia.  The Orders therefore included Orders for the child to spend time with the father in Australia and overseas if he resided overseas.

More Time with the Father and Overseas Travel

The Orders were made when the child was relatively young.  The Orders provided for an increase in the time the child spent with the father based on the age of the child.  The Orders included travel conditions to address issues where the father resided overseas. 

The father then relocated to a different country and Orders allowing the child to spend time with the father overseas became important.  The Orders that had been made by the Family Court of Australia provided a regime for travel which took into account the child’s age and capacity to travel unaccompanied by an adult. The Orders imposed conditions for the child’s travel overseas and required the father to pay and to provide notice to the mother in advance.

Conditions and Requirement for Overseas Travel

The Orders progressed and expanded in Stages that coincided with the child’s age:

  • Stage 1- The father was required to travel to Australia and spend time with the child in Australia. 
  • Stage 2- The father had to travel to Australia and travel with the child back to his country and spend time there. The father then had to accompany the child back to Australia. 
  • Stage 3- The child to travel to the father’s country by air travel as an unaccompanied minor and return to Australia as an unaccompanied minor. The father was required to meet him on arrival and place him on the aircraft for the return journey.
  • The Orders remained in force until the child attained the age of 18 years. 

Breach of the Orders

On the first occasion when the child by reason of having attained the age required to spend time with his father overseas, the mother refused to permit the child to travel The father had given all notice required by the Orders and fully complied with his obligations under the Orders. 

The child did not travel to spend time with the father overseas. The father sought legal advice from Watson & Watson. 

Watson & Watson – Advice and Action

Watson & Watson advised the father that he should make an application to the Family Court of Australia to enforce the Orders and to file an Application for Contravention of the Orders.  Watson & Watson meticulously prepared an Application for Enforcement and an Application for Contravention of Orders and these Applications were served on the mother in Australia.  The matter was listed on an urgent basis in the Family Court of Australia.  The father travelled to Australia for the hearing. 

The mother filed an application for Variation of the Orders and sought Orders that the child never travel as an unaccompanied minor and that the father fly to Australia to collect the child and then fly back with the child to Australia and then return to his country.  The time and expense of this requirement was not practical. 

The mother also sought some other changes to the Orders.  The father opposed the Orders sought by the mother being made on the basis that the Orders were final and the Court should not interfere with the final Orders. 

When will a Court Vary Final Parenting Orders

In circumstances where Final Orders have been made, the Courts are reluctant to make changes or variations to Orders.  The Courts wish to ensure Final Orders stay final.  The Court tries to avoid the child or children being subject to continuous litigation.  The Family Court of Australia has considered the circumstances in which a Court will allow change or variation to a Parenting Order.  In the case of Rice v Asplund.

The circumstances in which the Court may allow change or variation are

  1. Whether the relevant “change” is a circumstance which was outside or beyond the contemplation or consideration of the parties and the Court at the time the original Parenting Orders were made. 
  2. Whether some new factor or issues has arisen since the Orders were made.
  3. Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing and if there is such a likelihood, then the nature of the likely changes is to be weighed against the detriment to the child that could be caused by the litigation itself.

Conduct of the Case

Watson & Watson Lawyers on behalf of a father, also recently conducted a hearing in the Federal Circuit Court of Australia which was based on and considered the principles of the Rice v Asplund case.  In that case, the mother sought to vary Final Parenting Orders that had been made in 2012.  The husband/father opposed that application. 

The Federal Circuit Court of Australia approached the matter from the point of view of what was in the best interest of the child but determined that in all the circumstances, the desirability of maintaining Final Orders was important and would only allow the mother to continue her application for variation on a very limited basis.  In other words, the Court was able to uphold the Final Orders but allowed some minor adjustment.  The Orders were not (with some minor exceptions) set aside. 

What is a Contravention Application?

The Contravention Application is an Application made to the Court where an alleged breach by one parent of a parenting Orders, is brought before the Court for determination.  The Contravention Application is required to be served on the parent who is alleged to have contravened the parenting Order.  Examples of the circumstances where an Order might be contravened are where a person:

  • Does not comply or makes no effort to comply with the terms of the parenting Order;
  • Deliberately prevents or tries to prevent another person who is bound by the order from complying with the Order;
  • Does not have a reasonably excuse for contravening the Order. 

If the Court finds that an Order has been breached then there will be an Order in relation to the contravention and the Order for penalty will depend upon the seriousness of the contravention found to have occurred. 

Penalties for Contravention 

The Court could for example, make some or a combination of the following Orders:

  • Make up time to compensate for the time that the person missed. 
  • That a person attends a parenting education program such as a post-separation parenting program. 
  • That a person enters into a bond with the Court to do certain things for a period of up to two years.  This may involve attending appointments for counselling or “good behaviour”.  Good behaviour could include making sure that the person complies with the Orders in the future.
  • A monetary fine. 
  • Imprisonment for up to 12 months.
  • The party who breached the Orders to pay the other parties costs.

Outcome

The outcome was favourable to the father.  He was successful in preventing the setting aside of the Court Orders which provided for time being spent by the child with the father in Australia and overseas. 

The Contravention Application filed by the father was successful and the mother was placed on a bond to be on good behaviour for a period of 12 months.  The child recommenced spending time with the father in accordance with the original Orders. The case was concluded. 

Having contact you with your child or children is paramount for a parent and a child.  If you have any contact issues relating to contact for your child or children and/or are proposing to reside in another country or state and are unsure of what your rights are at Watson & Watson our experienced Senior Family Lawyers can assist you with this sometimes complex situation.  Please contact Richard Watson Senior Family Solicitor or his Personal Assistant to discuss your matter and seek appropriate advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.

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