It’s an all too common scenario. The kids should be back by now the parenting orders said so, but they aren’t. It’s an obvious breach, or is it?
A parenting order is a court order and differs from a parenting plan. A parenting plan is an agreement by the parties made by consent. A parenting order is a binding court ordered plan that may be made with or without the consent of either party.
The breach of a parenting order can be a serious infraction. But it is important to firstly establish whether the breach was even actually a breach!
A common assumption is that any failure to comply with orders is a breach. For a breach to have occurred, it must amount to:-
- An intentional failure to comply with the order; or
- A failure to make a reasonable attempt at complying with the order; or
- The aiding or abetting of a person who is in contravention of the order; or
- Intentionally preventing a person from complying with the order.
It should also be a point of consideration that a parenting order binds the parties to it, it normally does not purport to bind the child.
If a parenting order is the subject of a subsequent parenting plan, care should also be taken to establish whether the requirement to comply stemmed from the plan or the order.
If a Court establishes that a party is in breach of Orders, the next step is to decide whether that person had a reasonable excuse for the breach.
Deciding whether a person had a reasonable excuse to breach Orders can be complicated and depends on the circumstances of the parties and the fact of the alleged breach.
Penalties for Breach
If a breach with no reasonable excuse is established, the court has a number of options available to it. The powers of the court extend to:
- Mandatory attendance of a parenting program;
- A further parenting order that compensates the other party for the time lost;
- Fines and community service;
- A costs order made against the party (for legal costs of bringing the application);
- Require the party to enter into a bond, for a period of up to 2 years that may be with or without a surety or security requirement;
- Make further parenting orders.