Contravention Orders

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When the Family Law Amendment Act 2000 came into force on 27 December 2000, it introduced new provisions dealing with the contravention of orders affecting children.

The new provisions do not prevent parents making their own agreements through parenting plans but changes the way that the Family Court deals with applications for a person to be dealt with for contravening a order or a parenting plan.

The enforcement of Family Court Orders for contact has long been a debated issue. The Family Law Council, in June 1998, completed a report titled, "Child Contact Orders: Enforcement and Penalties". The report indicated that the most problematic issue arising between separated parents is that of the contact parent being obstructed or denied contact with his or her child or children. The new provisions are the Government s response to this report.

Three Stage Regime

The Amendment Act incorporates into the Family Law Act a three stage compliance regime which aims to streamline and enhance the enforcement of Court Orders affecting children.

The three stages are described as follows:

Preventative Measures

The first stage aims to:

Improve communication between separated parents
Educate them about their responsibilities to their children
Ensure parents are aware of their responsibilities under any parenting order
Ensure parents are aware of the consequences of failing to abide by the terms of a parenting order

Section 65DA of the Family Law Act places an obligation on the Court to explain to the parties the obligations created by an Order and the consequences of contravention.

Remedial Measures

In some cases, Court intervention will be necessary to address issues between separated parents that they are unable to resolve between themselves. Action taken by the Court may include referring the parents to a post-separation parenting program, make an order compensating the contact parent for lost contact time or adjournment of the proceedings to allow for the lodgement and hearing of an application to amend the parenting order.

If the parties are referred to a parenting program, their attendance at the program is compulsory. The program provider will contact the Court to advise of a parent s absence. If the program provider decides that their program is unsuitable for a particular parent, the Court may then make a further order concerning that person s attendance at a more suitable program

Sanctions

In the case of a first time breach which is particularly serious or upon the second and subsequent breaches of a parenting Order, the Court has two available options. It can either deal with the matter under Stage 2 of the compliance regime and refer the party or both parties to a post-separation parenting program if it decides that this is the most appropriate course of action or it can deal with the breach under Stage 3 of the compliance regime.

Sanctions the Court can impose under the third stage include:

Community service orders
Fines
Bonds; or
In the most serious cases, a prison term

Before the Court can impose one of these sanctions, the party who breached the parenting Order must first have been ordered to attend a post-separation parenting program or the ourt must have ordered compensatory contact to the other parent. It is available to the Court to immediately impose a sanction if a post-separation parenting program is not reasonably available, the person was not considered a suitable candidate for such a program or where it is not appropriate to order compensatory contact.

Orders Affecting Children

The three stage regime applies to orders affecting children. Section 70NB of the Family Law Act defines this to include:

Parenting Orders
Injunctions granted pursuant to either Section 68B or Section 114 of the Family Law Act
Undertakings given by a party which relate to a Parenting Order
Subpoenas issued in respect of proceedings in which the parties are seeking Parenting Orders
Parenting Plans registered with the Court under Section 63E
Bonds

Contravention

The compliance regime is applicable when there has been a contravention of one of those orders detailed above. Section 70NC of the Family Law Act provides that a person will have contravened an order if they were bound by that order and then:

Intentionally failed to comply with it
Made no reasonable attempt to comply with it
Intentionally prevented compliance with the order by a person who was bound by it; or
Aided or abetted a contravention of the order by a person who was bound by it

Reasonable Excuse

A person who has contravened an order may have a reasonable excuse for doing so. What constitutes a reasonable excuse is defined by Section 70NE of the Family Law Act and includes that the breach occurred because the person causing the breach did not understand the obligations imposed by the order. The onus for proving that the excuse for breaching an order is reasonable lies with the person who committed the breach.

Conclusion

The new provisions place an onus on all separated parents to adhere to parenting plans and orders of the Family Court concerning child contact or face consequences which can potentially escalate to the most serious of all sanctions, imprisonment. It is in the best interests of all children that their parents establish routines in their lives and not unilaterally make decisions affecting contact with the other parent.