Obligations and consequences of parenting orders

The Family Law Act 1975 (the Act) sets out the rights, duties, powers and liabilities of spouses and children, and provides for enforcement of those rights and liabilities as well as the dissolution of marriage.

It is an automatic presumption in the Family Law Act 1975 (Cth) both parent have equal shared parental responsibility for each of their children until aged 18 years and this is not affected by changes in the parents' relationship status. Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation their children (see sections 61B to 61DB of the Family Law Act for details).



Before you apply to a court

Before you can apply to the court for parenting orders, you will need to participate a Family Dispute Resolution Conference. The Act requires you to obtain a certificate from a registered family dispute resolution practitioner before you file an application for a parenting orders.


What is the difference between consent orders and parenting plans?

If you and the other parent agree about parenting matters, you can make a parenting plan rather than apply for consent orders. A parenting plan is a less formal way of agreeing in writing about arrangements for your children. If you and your ex-partner do not agree about arrangements for your children and you apply to the court to decide, you are applying for a parenting order.


What are parenting orders?

Parenting orders are a set of orders made by a court about parental responsibility and the living arrangements for a child. The parties to a parenting order are legally bound to comply with it. You or the other party may enter into a parenting plan or apply to court for consent orders. Parents should understand that the best interests of the child is the paramount consideration for the family court. The Family court will determine those interests based on the individual circumstances of the particular family. Schools are not parties to parenting orders and they are therefore not required to comply with, or enforce, them


Structure of parenting orders?

A parenting order may deal with one or more of the following:

  • children primary living arrangement

  • how much time the children will spend with each parent or with other people

  • how the children will communicate with a parent they do not live with, or other people, and

  • any aspect of the care, welfare or development of the children e.g, medical, schooling, travelling, etc


Consequence of breach of Court Orders?

When a parenting order is made, either by way of consent orders or after a hearing by the court, every person affected by the order must comply with all of the terms of the order. If there is a breach of orders you can apply for a Contravention Application either the Federal Circuit Court or the Family Court, depending on how complex the matter is. A Contravention Application seeks an order from the court imposing a punishment or consequence on a person who has breached the Court Orders.

If one parent files an application alleging the other person did not comply with the parenting order, the court may decide that the contravention was,

  1. established.

  2. established but there was a reasonable excuse

  3. less serious and there was no reasonable excuse, or

  4. a more serious contravention without reasonable excuse.

If a parent disobeys an order multiple times or if a court finds that you have failed to comply with a parenting order without reasonable excuse, it may impose a penalty. These include:

  • vary the primary parenting order

  • order you to attend a post separation parenting program.

  • paying for any expenses incurred because of the breach (such as loss of airfares)

  • paying some or all of the other person’s legal costs

  • community service work

  • entry into a bond for up to 2 years

  • a fine

  • a jail term

If you’re accused of breaching a court order or you think someone else is breaching a court order, you should contact us for legal advice.


Dangers of sharing your Family Law proceedings on social media e.g. Facebook post, Instagram post, twitter etc.

It is so common that most people think that posting or venting on social media, or any media available about their separation or family law proceeding to the public, is acceptable.


Section 121(1) of the Act imposed strict rules in place concerning the non-publication of family law proceedings. The punishment for breaching section 121 can be as severe as imprisonment of up to 1 year. In conclusion, You should be careful of what you put on social media during family law proceedings to prevent such information from being used against you.



The impact of COVID-19 on parenting orders

We are all experiencing uncertain and unprecedented times in the wake of the COVID-19 epidemic. Our recommendations is to communicate with each other about complying with current orders and attempt to find a practical solution. If communication fails then please contact can us and we can help you mediate an agreement and recommend short-term alternate options where necessary and we will assist you with advice on your obligations and consequences of non-compliance.


Conclusion

The objects of the Act is to ensure that a parent who is entitled to spend time with their child ought to be able to do so. Every child has the right to a meaningful relationship with both parents regardless of their marital status, and parents should jointly share and fulfil their parental responsibilities in relation to their children. Parenting orders can be made by consent or as a result of a contested hearing before a Judge. The consequences for breach of parenting orders can result in care for the child.

If you or someone you know wants more information or needs help or advice, please contact us on 1300 411 04 or email info@britluchotlawyers.com.au


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