Children's issues

Parenting Orders during the Christmas period

The Christmas period is an emotional time for those parents dealing with a family breakdown or separation. The high emotions during this period can leave parents in turmoil over what is best for their child in relation to spending time with parents, siblings, grandparents and extended family over these special days.

The Family Law Act 1975 (Cth) ("the Act") has recently been amended to include mandatory requirements for parents to attempt to resolve parenting matters through family dispute resolution services before applying to the Family Law Court ("the Court") for a Parenting Order. If an agreement is reached during the dispute resolution phase the parties can apply to the Court for the agreement to be made into a Parenting Order. If no agreement is reached by the parties during the dispute resolution phase then an application may be made to the Court for a Parenting Order.

What is a Parenting Order?

A Parenting Order is an order from the Court dealing with the following issues:

1. The person(s) with whom the child is to live;

2. The time the child is to spend with another person(s); and

3. The allocation of parental responsibility for the child.

A Parenting Order will generally set out the times and dates that each parent will spend with the child during special holiday periods such as Christmas in order to minimise the possibility of conflict during these periods.

A Parenting Order can also allow for time for the children with grandparents and other members of the extended family with the Court taking into account the relationship between the child and the grandparents and the likely effect that separation from a grandparent will have on a child.

What happens if one party doesn't comply with a Parenting Order?

When a Parenting Order has been made each person affected by the order needs to follow the order.

Non-compliance with a Parenting Order over the Christmas period is problematic as it is a time when you may find it difficult to access legal services for advice on how to handle the situation.

At Oakfair Lawyers we ensure that you are aware of your rights and responsibilities under the Parenting Order so that you understand your options in the event that the other party does not comply with the Parenting Order during this period.

What constitutes contravention of a Parenting Order?

A Parenting Order will be contravened if a party:

1. Intentionally fails to comply with the Order; or

2. Makes no reasonable attempt to comply with the Order.

There are some instances where the Court will consider that a person had a reasonable excuse for failing to comply with a Parenting Order. The Court will generally accept the following reasons for failure to comply with a Parenting Order:

1. The person who contravened the Order did not understand the obligations imposed by the Order.

2. The person reasonably believed that their actions were necessary to protect the health and safety of a person.

3. The contravention did not last longer than was necessary to protect the health and safety of the person who contravened the order or the child.

What are the penalties for failing to comply with a Parenting Order?

If a party believes that there has been a contravention of the Parenting Order they need to make an application to the Court alleging that the person did not comply with the Order.

The Court has a number of options when considering whether a contravention of the Parenting Order has occurred including:

1. Deciding that the contravention has not been established.

2. Agreeing that there was a contravention but finding that the other person had a reasonable excuse for the contravention.

3. Deciding on the severity of the contravention where they do not find that the other person had a reasonable excuse to contravene the order.

If a person is found guilty of a contravention of a Parenting Order without a reasonable excuse the Court has the power to make any one of the following orders:

(a) Vary the Parenting Order.

(b) Order your attendance at a post separation parenting program.

(c) Compensate the other party for time lost with the child as a result of the contravention.

(d) Require the person to enter a bond.(e) Order the person to pay the legal costs of the other party.

(f) Order the payment of compensation for reasonable expenses lost as a result of the contravention.

(g) Order community service, payment of a fine or a sentence of imprisonment.