09 Jun Contravening Court Orders
What rights do you have if your former partner is breaching parenting orders?
There are legal obligations created when parenting orders are made by the court and there can be significant ramifications for those who choose not to adhere to them. So what rights do you have if your former partner breaches parenting orders?
What are parenting orders?
When a dispute arises in relation to providing care arrangements for a child and court proceedings are initiated, the court will examine all of the evidence presented by the parties and consider what future arrangements will be in the child’s best interests. The court will then make a series of orders that deal with:
- • Who has Parental responsibility for the child;
- • Who the child lives with;
- • Who the child spends time with;
- • Details relating to the communication between the child and the parent they do not live with; and
- • Anything else that is relevant to the care, welfare or development of the child.
There are several different types of parenting orders including;
- 1 Interim orders – these are temporary orders that will apply until final orders are made by the court;
- 2 Final orders- These are orders that are made by the court after hearing evidence by all of the parties and apply until the child turns 18;
- 3 Consent orders- These are made by the parties reaching agreement on what is in the best interests of the child and following approval of the court will apply until the child turns 18 or the court decides otherwise.
What should I do if my former partner breaches the parenting orders?
Step 1- Seek legal advice
If you are frustrated that you former partner is not complying with parenting orders your first port of call should be to seek legal advice. Your lawyer will consider the seriousness of the breach and advise the best way to remedy the situation. If it is just a case of the other party misinterpreting the orders sometimes a quick letter from your solicitor might be enough to resolve the issue.
Step 2- Family Dispute Resolution Conference (FDR)
After considering the information you have provided your solicitor might suggest attempting a Family Dispute Resolution Conference (FDR). An FDR is often a faster, cheaper and less stressful option than going to court and unlike community mediation your solicitors are not only allowed to attend, but they play a meaningful role in facilitating the negotiations. Essentially an FDR allows you to negotiate your own solution to the problem rather than putting it in the hands of a judge.
In the spirit of court being a last resort, in most cases you will be required to provide a certificate from an authorised FDR provider before the court will even accept an application (although there will be certain situations where this requirement might be waived).
Step 3- Apply to the court (always a last resort)
If a breach is serious or the other party is repeatedly breaching the orders you can initiate court proceedings by filing a Contravention Application. You will also need to file a supporting Affidavit setting out the facts of your application. After filing these documents with the Court Registry you will then be required to serve a copy of these documents on all other parties involved including the person who is being accused of breaching the orders.
It is vital to seek legal action prior to taking any action when it comes to these types of situations. Making a Contravention Application for a minor breach may not work in your favour as this can be seen as an abuse of the court process and a waste of time and resources. At Adelaide Family Lawyers we can advise you on the best way to deal with a difficult ex and find the most appropriate solution for you moving forward.