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.