A separating couple with minor children will need to work out the parenting arrangements for those children – where the children are to live, who they spend time with, and who may make decisions about the children.
If the couple can agree, their agreement can be formalised by way of Consent Orders (ie Orders made by the Federal Circuit and Family Court of Australia “the Court” by consent of the parties). If an agreement cannot be reached by consent, then the Court can determine and make orders about the parenting arrangements for them.
In either case, the Court will only make orders that it considers are in the children’s best interests.
Structure of parenting orders
Parenting orders, whether made by consent or otherwise, will cover topics such as with whom the children are to live and spend time with, and which of the parents (or other persons) may make decisions in relation to the children’s day to day and long term care, welfare and development. Theoretically, each aspect of a parenting order, whether made by consent or after a contested hearing, is binding and enforceable as a Court order.
Unfortunately, that theory is not always borne out in practice.
It can sometimes be difficult to prove a breach of parenting orders. Examples of commonly alleged breaches of orders include a failure by one party to consult with the other party over decision making (despite an order that they do so) or failure to facilitate the children spending time with the other party.
Before the Court will treat a parenting order as having been breached, it must first consider whether the allegedly “guilty” parent had a reasonable excuse for failing to comply with any orders. A common reason offered by a parent accused of a failure to facilitate a child’s time with the other parent may be that “the children don’t want to go and I can’t make them”.
Whether or not that constitutes a reasonable excuse will depend upon the facts of each case, including the ages of the children and the steps that the parent did take to try to encourage the children to spend time with the other parent. There are positive obligations on each party to abide by both the terms and spirit of any parenting orders. That includes encouraging children to spend time with the other party in accordance with any orders.
Consequences of breach
If the Court is satisfied that a parenting order has been breached without reasonable excuse, it has a range of penalties available to it to either punish the “guilty” parent, to “compensate” the innocent parent or to enforce the parenting orders. Those options include:
- requiring one or both parents to attend a parenting after separation course
- ordering that the children spend additional “make up time” with the “innocent” parent
- changing the terms of the parenting orders. This could include fresh orders that the children regularly spend more time or even commence to live with the “innocent” parent. This might occur in extreme cases
- where one party will continue to simply fail to facilitate any relationship at all between the children and the other party
- placing the “guilty” parent on a bond or sentencing him or her to imprisonment.
In relation to the last three of those options, the Court’s overriding consideration remains the children’s best interests. There have been a number of cases where, despite proven and repeated breaches of parenting orders by the parent with whom the children live, the Court has not drastically changed the earlier orders, jailed a “guilty” parent due to a concern that to do so would not be in the children’s best interests.
Unfortunately, the practical outcome in those cases was that the “guilty” parent’s breach of the parenting orders effectively goes unpunished. These are complex matters.
Consequences for taking children overseas
One particular breach of parenting orders which deserves special mention is where a parent removes the children overseas. Such a situation is treated very seriously by the Court, the Federal Police and relevant international authorities.
Parenting orders can be made by consent or as a result of a contested hearing before a Judge. The enforceability and consequences for breach of any parenting orders is the same, regardless of how those orders were made. Unfortunately, proving a breach of parenting orders and obtaining what the “innocent” parent might consider to be adequate redress can sometimes be difficult.
If you need assistance or advice on how to proceed please contact us on (08) 8344 6422 or email [email protected]