It can be an incredibly difficult and frustrating time if you are separated, and the other parent is not complying with Court Orders. There are a few options to consider if you are struggling with a parent who is not complying.
1. Write to the other parent and ask them to comply
Sometimes there may be some ambiguity in Court Orders, which means that the way you have interpreted the Orders is different to how the other parent has interpreted the Orders. This could occur if, for example, there is no Order about how time recommences after school holidays. In these circumstances, direct communication or negotiation with the other parent may be the easiest and simplest way to ensure that the other parent complies.
2. Invite the other parent to attend a mediation
Often parents who have been through the family court system dismiss attendance at another mediation as it “won’t work” or there is a misconception that the other parent “won’t agree to anything”. More often than not, attendance at a mediation can result in a better understanding of why the other parent is not complying with Court Orders, even if there is ultimately no agreement about how to reinstate the Orders. Mediation offers an opportunity for both parents to have time to consider how they would like to proceed with whatever hardship or obstacle is currently in the way of compliance with Court Orders or consider a change to any Court Orders.
3. File a Contravention Application
If no agreement can be reached between you and the other parent, you have the option to file a Contravention Application with the Federal Circuit and Family Court of Australia. This includes preparing a Contravention Application, setting out that:
a. The other parent is aware of the Orders and their obligations;
b. Specifically what Order was breached;
c. How the Order was breached; and
d. The date and time of the breach.
An Affidavit will also need to be filed with a Contravention Application, to provide the Court with your evidence as to how the Orders have been breached.
It is important to remember that in Contravention Applications, the non-complying parent will need to confirm if they agree the breach occurred or not. If they agree that it did occur (that is, they plead guilty to the contravention), then they need to show the Court that they had a reasonable excuse to breach the Orders.
If the Court finds that the non-complying parent has breached the Orders, then the Court has a variety of options available to ensure that the Orders are complied with, including placing the non-complying parent on a bond, issuing a fine, or ordering make up time. You should note that while the Court has the option to revisit the Orders, it is often unlikely that it will make a significant change to Orders in a Contravention Application.
4. File an Initiating Application
If you consider that the Final Orders must be changed because of the non-complying parent’s actions, then you may need to file an Initiating Application to seek a substantial change to the parenting Orders. You will need to ensure that you can satisfy the Court of the requirements of section 65DAAA of the Family Law Act, in that there must be a significant change of circumstances and that in all the circumstances, it must be in the best interests of the child for the Court to revisit the Orders.
You should seek family law advice about your options in relation to ensuring compliance with parenting Orders. Contact Robinson + McGuinness today to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.