Com­pli­ance with Chil­dren’s Orders

Any orders made by the Fed­er­al Cir­cuit and Fam­i­ly Court of Aus­tralia (FCF­COA) should be fol­lowed unless an agree­ment is reached with the oth­er par­ent to vary or amend the Order. It is impor­tant that both par­ties under­stand what is required by them under the Orders, which includes tak­ing all rea­son­able steps to ensure the orders are com­plied with.

In cir­cum­stances of non-com­pli­ance by the oth­er par­ent, there are steps that can be tak­en to ensure the oth­er par­ent com­plies with the Order. Under the new­ly estab­lished FCF­COA, par­ents are able to seek the Court’s assis­tance with Com­pli­ance by way of fil­ing an Enforce­ment of a Par­ent­ing Order Appli­ca­tion or a Con­tra­ven­tion Appli­ca­tion. In more seri­ous cir­cum­stances, par­ties can file an Appli­ca­tion for Con­tempt, how­ev­er, such an appli­ca­tion would need to estab­lish the non-com­ply­ing par­en­t’s non-com­pli­ance is a fla­grant chal­lenge to the author­i­ty of the Court or a seri­ous dis­re­gard of that par­en­t’s oblig­a­tion under the orders. 

If a par­ent files a con­tra­ven­tion appli­ca­tion, and the Court finds the non-com­ply­ing par­ent has con­tra­vened the Order they may be able to con­tend that they had a rea­son­able excuse for the non-com­pli­ance. There are many cir­cum­stances that may estab­lish a rea­son­able excuse, includ­ing — if a par­ty did not under­stand the oblig­a­tions cre­at­ed by the Order, or if such non-com­pli­ance was rea­son­ably nec­es­sary to pro­tect the health or safe­ty of the par­ent and or child. 

The new­ly estab­lished FCF­COA has set up a Nation­al Con­tra­ven­tion List, which intends on list­ing all con­tra­ven­tion appli­ca­tions with­in 14 days of fil­ing, in an effort to prompt­ly address any alle­ga­tions of non-com­pli­ance. One of the Court’s pri­ma­ry pur­pos­es is to ensure com­pli­ance with a court order, how­ev­er, par­ties should bear in mind the Court’s over­ar­ch­ing pur­pose will apply to all pro­ceed­ings to ensure the just res­o­lu­tions of dis­putes accord­ing to law and as quick­ly, inex­pen­sive­ly and effi­cient­ly as possible. 

It is essen­tial to seek legal advice if the oth­er par­ent is not com­ply­ing with a par­ent­ing order. Con­tra­ven­tion appli­ca­tions are com­plex, and the court can impose sig­nif­i­cant penal­ties on a non-com­pli­ant par­ent. Fur­ther, if an appli­ca­tion has been filed with­out mer­it, it is in breach of the rules or is friv­o­lous, then a par­ty (or their lawyer) may face an order to meet the oth­er par­ties legal costs.