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As we have done in the past, we will continue to offer alternative conferencing methods ie video conferencing, skype or telephone conferences. Reviewing of all documentation provided to us prior to any initial conference will be all inclusive of our set fee. Do not hesitate to contact Shereen Da Gloria on (02) 9221 6011 should you have any concerns.
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.
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:
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
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:
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:
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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