When a Court makes orders for a parenting matter, they are binding on all parties and each party must comply with the orders. If someone does not comply with an order, they are considered to be in breach of a Court order and there are serious consequences, unless that person has a reasonable excuse to breach the Orders.
The Court considers a “reasonable excuse” to be:
- The person believed they had to act in a way that breached the orders to protect someone’s health or safety and the breach continued for no longer than necessary to protect that person’s health or safety; or
- The person did not understand that they were breaching orders because they did not understand their obligations and the Court is satisfied that person should be excused from the breach.
One example is that a parent may be concerned that the children are at risk in the other parent’s household due to drug abuse or family violence and not allow the children to spend overnight time with the other parent. That parent can then argue they had a reasonable excuse to breach the orders however, whether the Court will agree with that parent depends on a number of factors. These include, the evidence the parent had of the risk, how serious the risk was and what steps the parent has taken to facilitate time in a safe way.
If one party breaches orders, there are a number of options available to the other party, including:
- Attempting to discuss the breach with the other party (if it is safe to do so) or through solicitors to reach a resolution.
- Invite the other party to attend mediation or family dispute resolution to try and resolve the issue and potentially change the orders if they are not working.
- File a Contravention Application with the Court. For parenting matters you will require either your section 60i certificate from family dispute resolution or an Affidavit explaining why you are exempt from having a section 60i certificate.
If a Court finds a party to be in breach of orders, there are a number of orders the Court can make including; an order for make-up time, an order varying an existing order, an order for legal costs to be paid, an order that punishes the party by way of a fine and in extreme circumstances, by way of imprisonment.
If you, or someone you know needs family law advice of help on what to do next, contact us on (02) 4322 0251 to speak to one of our Family Law specialists.