minimal to heavy consequences. According to Section 70NAA of the Family Law Act 1975, courts have the power to
draft orders that affect children and enforce compliance on
concerned parties. The court also has and will always have the
power to vary an order including parenting plans entered since the order was
made.
Parenting plans are out-of-court agreements that parents can
make themselves. Indeed, it’s an easy way for divorced or separated couples to make
parenting arrangements, but it is not legally binding. Even when
there are formal parenting orders in place, parents may deal
with disputes. The orders that the court can make under Section
70NAA will depend on whether:
- There is an alleged contravention but is not established
- The court finds that a contravention has occurred but the
contravening person/party has a reasonable excuse for doing so - The court finds that a party contravened an order with no
reasonable excuse
Failure to comply with orders that affect children can happen at
any time in family law proceedings. However, as mentioned,
there are times when there are reasonable excuses for the
contravention of an order. Read this article to find out more about
family laws contravention of orders that affect children.
Section 70NAB: Application of Division
Regardless of any other provisions under Division 13A, Section
70NAB states that this Division does not apply to a contravention
of an order (committed before the commencement of Division 13A)
under this Act affecting children. This is if a court made an order
under this Act as previously in force in respect of that violation
before the commencement of this division.
Section 70NAC: Meaning of Contravention of an Order
According to Section 70NAC, a person is believed to have
contravened an order if and only if he/she has:
- Intentionally showed a failure to comply with orders that
affect children - Made no reasonable attempt to comply with the parenting
order - Intentionally prevented a person bound by the parenting order
from complying - Aided in the contravention of a parenting order
As mentioned, some parties draft parenting plans in order to
have a reasonable excuse to contravene a parenting order. Courts
will always consider if there are parenting plans made during
family law contravention proceedings.
Section 70NAD: Specific Orders Meeting Certain
Requirements
According to Section 70NAD, there are requirements that courts
must include in parenting orders. These requirements are set out in
four different sections in the Family Law Act. Below is a table
that sets out each section and the requirement needed
| Section | Requirement |
| 65M | This section is a requirement for parenting orders that deals
with whom the child will live with. This section mentions that a person, contrary to the order, must not show a failure to comply with orders that affect children through the: Removal of the child from the care of a personRefusal or failure to deliver or return the child to a personInterference with a person performing his/her powers, duties, or responsibilities under the parenting order |
| 65N | This section is a requirement for parenting orders that deals
with whom a child is to spend time with. This section mentions that a person must not: Hinder or prevent a person and the child from spending time together in accordance with the parenting orderInterfere with a person and a child benefitting from spending time with each other under the parenting order |
| 65NA | This section is a requirement for parenting orders that deals
with whom a child is to communicate with. This section mentions that a person must not: Hinder or prevent a person and the child from communicating with each other in accordance with the parenting orderInterfere with the communication between a person and the child are supposed to have with each other under the parenting order |
| 65P | This section is a requirement that deals with parental
responsibility. A person with parental responsibility has the power to make decisions for a child’s long-term issues. This section mentions that a person must not hinder the carer (the person with parental responsibility) from discharging that responsibility. |
An Example of a Parenting Order With Requirements Applied
Susie and Chuck are divorced and are seeking a parenting order
in court for their child. After the hearing, the court allocated
parental responsibility to Susie, thereby making her the carer of
her child. It is mentioned in their parenting order that the child
will live with Susie from Monday to Friday, while the child’s
weekend time is dedicated to Chuck.
If we apply Section 65N to our example, Susie is not allowed to
interfere with her child and Chuck’s time. This includes Susie
being present on their weekend time or stalking them wherever they
go. Indeed, it’s a reasonable excuse for Susie to show a
failure to comply with orders that affect children. However, she
must prove that the child’s safety is at risk, let’s say,
for instance, that Chuck may harm their child in some way.
Section 70NAE: Reasonable Excuses for Failure to Comply With
Orders That Affect Children
- The contravening person did not understand his/her obligations
in the parenting order. A mentally incapacitated person, to an
extent, may not understand his/her obligations in a parenting
order. In these cases, a court may excuse the person in respect of
the contravention. - The contravening person may not have understood the language of
the parenting order. Courts have the duty and obligation to explain
a parenting order which concerned parties must readily
understand. - The contravening person believed that the contravention was
necessary to save a person or a child’s health and safety. This
includes interfering with a child spending time or communicating
with a person regardless of having parental responsibility or
not. - The contravention did not last longer than was required to
protect the health and safety of the contravening person or the
child.
Section 70NAF: Standard of Proof
Courts will require a standard of proof if a person indeed,
showed a failure to comply with orders that affect children without
reasonable excuse in proceedings. If this is the case, the court
may make an order under the following sections:
| Section | Type of order and effect |
| 70NEB (1)(da) | The contravening person without reasonable excuse will enter
into a bond with courts imposing a fine not exceeding 10 penalty units on the person. |
| 70NECA(3)(a) | The court may without prejudice, continue the bond and impose a
fine not exceeding 10 penalty units on the contravening person. |
| 70NFB(2)(a),(d), or (e) | (a) Courts will make a community service order(d) Fine the
contravening person of not more than 60 penalty units(e) Impose a sentence of imprisonment |
| 70NFF(3)(a) | The court may without prejudice, continue the community service
order or bond |
Failure to Comply With Orders That Affect Children:
Seeking Legal Advice
Indeed, it is difficult to deal with people who contravene
parenting orders especially if there is no reasonable excuse for
doing so. However, given the benefit of the doubt, some people
contravene an order for reasonable excuses.
Regardless of the situation, it’s important to seek legal
advice from JB Solicitors’ family lawyers. Should legal matters arise, our mediation and arbitration services can help
disputed parties come to an amicable agreement.
self
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
