Enforcement

Following Court orders

When the Court makes orders, all parties need to follow them. Otherwise the Court can impose penalties.  You should:

• take all reasonable steps to follow the order.
• seek legal advice if you can't follow the order, or the order becomes impossible to follow.
• talk to the other party about changing parenting order arrangements if they are no longer practical. These talks do not change the order or your obligations.
• attending any parenting programs the Court orders you to attend. If you do not attend, without a reasonable excuse, you may be in breach of the orders.

If the other party is not following the order

The first step is to attempt to resolve the dispute outside of court. You can use community-based family dispute resolution to help you work through the disagreement.

If you reach an agreement, you can enter into a parenting plan or apply to court for consent orders. Resolving issues this way is less formal than going to Court and should cost less in money, time and emotions.

If you cannot reach an agreement, you can make an enforcement application. The court can enforce an order a make a person comply with the order, or vary an order to make sure everyone can comply with it in the future. If an existing court order no longer reflects arrangements for a child, it should be changed.

Breaching an order

A person breaches an order if they deliberately don’t comply with it or make no reasonable attempts to comply with it. They also breach an order if they help someone else to avoid complying with it or prevent someone else complying with it.

Except for more serious breaches of orders or allegations of contempt of court, the person alleging the breach must prove the allegations on what is called the balance of probabilities. This means that the court must accept that it is more likely than not that the breach occurred. In the most serious cases, including contempt of court, the allegation must be proved beyond reasonable doubt. This means that the court must accept that the allegation must be the only reasonable explanation for what has occurred.

Enforcement hearing

If a court decides a person has breached an order, it must then consider whether they had a reasonable excuse for doing so. Some examples of reasonable excuses may be that the person did not understand the obligations imposed by the order or that the person believed that the actions taken when breaching the order were necessary to protect the health and safety of any person, including themselves or the child, and that the breach lasted only as long as necessary for that protection.

If it is alleged you have breached Court orders and you don’t attend the court hearing, the court may still make orders, including an order for your arrest. You can attend in person or ask a lawyer to represent you. If you cannot attend, you can request to appear by telephone or videolink. For more information about this, speak to the court staff well before the hearing date. You will need to explain why you cannot appear in person.

Penalties

If the Court finds you have breached an order without reasonable excuse, it may impose a penalty. Depending on the situation and the type of contravention, the Court may order that you:

• pay all or some of the other party’s legal costs;
• compensate the other party for lost time with a child;
• attend a post-separation parenting program;
• undertake community service. Failing to undertake the community service can result in another penalty being imposed;
• enter into a bond which can last for up to 2 years. It may require the person to be of good behaviour, attending counselling or participate in dispute resolution. Breaching the bond can result in a fine or other penalty being imposed.
• pay a fine; or
• serve a term of imprisonment.

The Court may also amend the orders, or adjourn the case to allow a party to apply to amend the orders.

Location and recovery orders

If you breach a parenting order by failing to return the child as required, the Court may make a recovery order. This is an order issued to the Marshal of the Courts and all Federal or State Police to find and return the child. The order may also allow a search of any vehicle, vessel, aircraft or any other premises where the child may be found.

If a party breachs a parenting order and cannot be found, the Court may make a location order. This order requires another person or organisation, including government departments, to give any information they have about the location of the party and the child.

 

Last updated: 19-Sep-2023

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