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 Contravention of orders in children's matter: what to do when a party contravenes an order |
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Every weekend in every city and town in Australia parents are denied contact with their children despite orders providing for contact. And on the other side of the same town a different parent decides not to give the children back after they have had contact. These situations can give rise to a mountain of emotions, including hurt, anger, frustration, despair, and distress - and these are just some of the feelings that the children can experience. There are a number of procedures which have to be negotiated in such situations.
The court will not automatically enforce its orders. An application must be made to the court outlining the particulars of the contravention and any request to have the orders enforced. Evidence in the form of a sworn affidavit will also have to accompany the application. This will not necessarily result in the instant return of the situation prior to the act of contravention or even the punishment of the offender.
Parties who seek the enforcement of orders will first need to attend the Family Court Counselling service in a bid to have the matter resolved without having to pursue litigation. Once an application has been made the parties may be required by summons to attend court. In a serious matter, if they do not appear a warrant may be issued for their arrest and they will be brought to court under police custody.
The appropriate punishment for the breach of orders is another particularly difficult area. The punishment needs to be directed at the offender and not at the child. In situations where contact has been denied to another party it will rarely be in the best interest of the child to send their primary care giver to gaol for any amount of time. Punishments for the contravention of Orders are more likely to consist of community service (only available in some states), weekend detention, undertakings, or fines and recognizances (an amount of money which the court requires as a surety that the party will not contravene the order again).
Where contact has been denied on numerous and regular occasions it may even be possible in an appropriate case for the residency of the child to be reversed.
The decision to enforce an order is completely at the discretion of the court.
The welfare and best interest of the children will always remain the paramount consideration in the court's decision in these cases. The court will not punish a person who has contravened an order with a "reasonable excuse". A "reasonable excuse" includes the situation where a party did not understand the obligations imposed by the order or the court is satisfied that the party ought to be excused. Where a party withholds contact from another or will not return a child after contact they must prove to the court that they believed on reasonable grounds that their actions were necessary to protect the health or safety of a person (including themselves or the child).
There would have to be overwhelming evidence of this belief and evidence that the belief was based on reasonable grounds. Just because a person holds a belief does not mean that belief is justifiable.
Reasonable grounds for denying contact to a party do not include the discovery that the other party has a new partner. A reasonable ground may include the discovery that the other party has a new partner who has been convicted of child sex offences in the past and the child has told you and others that the partner has behaved in an inappropriate way with the child. The court must be satisfied after having considered all the evidence that the party who has contravened the order ought not be punished.
It could also mean that at the same time as the contravention hearing that new orders may be made by the court which have the effect of altering the current ones. However, until such time as new Orders are made the parties are still liable to comply with the current order at all times unless they have reasonable grounds not to.
If the court finds that the orders have been contravened without reasonable excuse for the first time the court must do one or more of the following:
(a) vary the order that has been contravened;
(b) order the party to attend a parenting program;
(c) make another order which compensates the other party for any contact time lost as a result of their actions.
If the court finds that the orders have been seriously disregarded or there has been more than one occasion where they have been contravened, the court, in addition to the above, can order one of the following:
(a) a community service order (not available in NSW)
(b) a bond
(c) a fine up to $6600
(d) gaol for up to 12 months
It is clear that the court considers it of upmost importance that orders, initially made on the presumption of the best interests of the child, only be varied where circumstances have changed to the extent that the variation is required for the sake of the child's best interests.
It is now important to consider that those who continually contravene orders where the court has previously determined that they are in the best interest of the child and that there is no reasonable grounds for contravention, will be held more accountable for their actions.
February, 2001
February, 2001
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