What happens if the Family Law Court grants a parent access to their kids after a separation, but the other parent refuses to comply? It doesn’t happen often – sensible parents respect and abide by the Court’s orders, because they recognize that by failing to do so, they may bring about a lot of trouble for themselves and their children.
And of course, changes may happen naturally with both parties consent – as children grow older and their interests and needs change, sensible parents may review their parenting orders and make changes in their children’s best interests.
But there are cases where one parent deliberately contravenes court orders for no proper reason. Is so, what can the other parent do?
The court takes breaches of parental agreements very seriously and does not take kindly to a parent who contravenes an order without a reasonable excuse. A parent who is accused of a breach must personally attend at the court and explain what they did and why. They are given the opportunity of establishing a “reasonable excuse”. However such excuse must relate
to a serious issue of the child’s safety. It is not a reasonable excuse to simply say the child ‘didn’t want to go’. Parents have a positive obligation to deliver children to the other parent and facilitate court orders – or apply to change them. They are not permitted to take matters into their own hands.
The penalties for not following the agreement can be severe. If it’s a first offence, the court may impose a bond. But a second and more serious offence can lead to a goal sentence and the payment of legal costs. The courts can also change the care arrangements for the children.
However, there are certain procedures that an aggrieved parent must follow. There is a special application form required, a so-called ‘contravention application’, which the parent must fill out and then file with an affidavit in the Federal Circuit Court. You will get further if your complaint against the other party is specific; that is, about specific instances, rather than a generalised complaint.
Going to court to get an agreement enforced is not pleasant or satisfying, and should be avoided. Generally, the court expects that you should have an attempt at mediation first. In fact, when you file a contravention application you must supply certification that mediation has been attempted.
It is usually better to deal with the problems behind the alleged breach and make the necessary changes if you can without recourse to the Court. But if this doesn’t work, the Court is there to make sure the agreement is honoured.
This is a situation where getting a lawyer is probably a good idea if you can afford it. You can apply to the Court yourself, with a bit of legal assistance, but it makes more sense to have a lawyer represent you and assist you in negotiations to get an early solution.