What Happens If a Parent Breaches Parenting Orders? Legal Options Explained
Legal Aid states that if you have a parenting order made after July 2006, you can make a parenting plan with different arrangements, and this plan must be followed in the parts where it is different from the order.
This article will discuss what a parenting plan is, what constitutes a breach of parenting orders, and why it is beneficial to consult a family lawyer with experience in child custody cases.
What is a Parenting Plan?
An informal, flexible agreement between two parties, a parenting plan allows parents to create an arrangement that works with their child’s needs. According to the Federal Circuit and Family Court of Australia, orders relating to a child include:
- A parenting order
- An injunction granted by the court under Section 68B or Section 114 of the Family Law Act 1975 insofar as it relates to the child
- A bond entered under a parenting order or contravention of a child-related order
- An undertaking that relates to an above order, injunction or bond
- A subpoena that relates to the above order, injunction or bond, which is issued to a party to the proceedings
The plan allows for adjustments over time without the need for court intervention, so it works as a practical solution for parents who communicate without issues. Parents can include details such as:
- Living arrangements
- Schooling
- Healthcare
- Communication schedules
A flexible plan like this is beneficial when circumstances change, such as a parent relocating or if there have been changes in the child’s routine.
However, a parenting plan is not legally binding, so a court cannot force its compliance if a parent breaches this order. If a dispute does happen, parents might need mediation or legal advice to resolve disagreements and to put together an arrangement that is more enforceable by law. It is recommended to have direct discussions to resolve problems and to look at family dispute resolution options.
If you need legal protection, a parenting plan can be changed to a Consent Order, which is a Family Law Court Order that is legally enforceable.
What if a Parenting Plan has been breached?
A breach of the order (or breaking it) is very serious unless there is a ‘reasonable excuse’. It is also an offence to help another breach a court order or try to stop them from obeying one. The Family Law Act 1975 (Commonwealth) discusses ‘reasonable excuse’:
- The person did not understand the obligations imposed by the order and the Court considers the person excused in respect for the contravention
- The person believed the breach was necessary to protect the health and safety of a person, including the person who contravened the order of a child
- The contravention did not last longer than needed to protect the health and safety of the person who contravened the order of the child
Burden and standard of proof
A standard of proof is applied when a Court makes a decision about the evidence you give. In the majority of cases, the party must prove the allegations on the ‘balance of probabilities’ and that they are more likely to exist than not.
What if a party has gone against the enforcement of the order, but they claim to have a reasonable excuse? They have the legal burden of proving the excuse on the balance of probabilities. If by chance the Court is considering a fine or imprisonment, the case is not proved unless allegations are shown ‘beyond a reasonable doubt’. It is the same standard required for criminal matters.
If the court finds you broke an order without a reasonable excuse, they can order you to participate in a parenting program run by an approved counselling service. The court also has the power to change an existing order to compensate the other parent for any loss of time with the children.
What if the order hasn’t been complied with more than once, or the order has been ignored? Severe penalties include:
- Paying for some or all the legal costs
- Community work
- Paying for any
- Paying for any expenses incurred due to the breach
- A fine of up to $18,000
- Jail term for up to 12 months
Penalties are listed in Division 13A of Part VII in the Family Law Act 1975.
If you are in a new relationship, you do not have to let your ex-partner know. However, you might need to give information if your new partner is spending time with your children.
What if you would like to move house to a new area? You do need to speak to your ex-partner, as it could be more difficult for your children to see the other parent. You need to come to an agreement about this move.
Read: Can a Child Choose Which Parent to Live With?
Why Choose Chatswood Family Lawyers?
From defending child custody to parenting time visitation and removal, there are many reasons to reach out to us during a parenting plan breach.
Holistic case handling
Integrating legal advice and emotional support together, the Chatswood family law team includes counsellors and mediators who collaborate with our child custody lawyer professionals.
Focus on mediation and resolution
We aim to resolve custody disputes through mediation and negotiated settlements. This way minimises conflict, isn’t a financial or emotional strain, and promotes a more positive co-parenting relationship.
Always prepared for litigation
We prefer and strive for amicable solutions, but if you need to go to court, we are skilled at arguing complex child custody cases.
Transparent communication
You will never be left in the dark with your case because our family lawyers provide regular updates and are always available to answer your questions.
Adaptive strategies
Have your circumstances changed? So will the needs for your case. Adaptable and responsive, we are ready to adjust our strategies to meet new challenges and opportunities that could arise during legal proceedings.
Need a Family Lawyer? Call Chatswood Family Lawyers
Hoping for an amicable agreement on parenting arrangements, need help with a contravention application, or facing a custody court process? Child custody matters are emotional, sensitive, and must be handled with care.
Chatswood Family Lawyers provide compassionate, comprehensive legal support with complex family law matters such as custody negotiations and litigation. The approach we take includes ensuring fairness for all parties and upholding the rights of the child.
Established by our principal solicitor and Accredited Specialist, Damian Phair, he has a genuine desire to provide quality legal representation. Since the firm’s inception, Chatswood Family Lawyers has become one of the leading family law firms across Sydney with over 20 years of experience.
Know that you’re never alone. Contact us today by calling (02) 9412 4500, emailing enquiries@chatswoodfamilylawyers.com.au or making an online enquiry.