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Is there any excuse for breaching parenting orders?

By November 15, 2016No Comments

By Gianna Huesch

When a court has made parenting orders, these need to be followed to the letter, or you risk being in breach or contravention of the orders and face a range of consequences if the other parent makes a contravention application against you.  Depending on the seriousness of a contravention, courts have the power to make a range of orders as punishment. This may include orders to make up lost time, to compel a parent to attend parenting education programs or counselling, to pay a fine and even to serve up to 12 months of jail time. Costs against the contravening parent may also be awarded. A court may also vary existing orders so that breaches do not happen in future.

Are there, however, any instances where a court will not punish someone for contravening parenting orders? In fact, there are, though they are limited. The court can find that while a parent did contravene an order, the parent should not be punished if the court is able to be satisfied that the contravening parent had a “reasonable excuse” for refusing to send the child to the other parent.

If a parent refuses to send a child to the other parent because they believe it isn’t in the child’s best interests, because there are circumstances in which it would be dangerous or disadvantageous to the child to do so, such as a reasonable fear of violence or abuse, the contravening parent may be able to argue they had a “reasonable excuse” to breach the order. It is up to the contravening parent to prove to the court that when the order was breached, there was such a “reasonable excuse” for the time period in question.

Section 70NAE of the Family Law Act 1975 makes specific provision for situations where a “reasonable excuse” may exist and gives two examples to describe what constitutes a “reasonable excuse” for failing to comply with an order. The first example in the Act relates to when a parent does not understand their obligations under the order and the court is able to find that the parent “ought to be excused”. However, this does not apply if a parent simply didn’t accept the order, or decided not to read it or pay any attention to it. The second example in the Act relates to when a parent believes on reasonable grounds that the action of not handing over the child was “necessary to protect the health and safety” of the child. The “reasonable excuse” for disobeying the orders only applies for the period necessary to protect the child’s health or safety—in the example where a child is ill, once the child was well again, the orders would have to be obeyed again.

If a parent successfully argues they had a “reasonable excuse” for a breach, a court may decide to make an order for the other parent to pay the costs of the parent defending the application.

It’s very important to seek legal advice, no matter which side of a potential breach of orders you may stand on. Please contact Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400 for assistance as soon as possible.

For more information, see also: http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-and-publications/publications/court-orders/parenting-orders-obligations-consequences-and-who-can-help

and

https://www.ag.gov.au/Publications/Pages/Parenting-orders-what-you-need-to-know.aspx

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