CoParent, Father or Mother Not Complying With Court Orders or Parenting Plan?

Co-parent, Father or Mother not following Court Order/Parenting Order

If you and your co-parent have Final Orders in place, specific to parenting arrangements, then both parents are legally bound to comply to the terms within those Final Orders.

If you are following the Orders but your co-parent is not, there are some actions you can undertake to make the right decisions for your child/ren and yourself.

What to do if your co-parent is not following Court Orders

The very first step is to seek advice from a family lawyer. Very often the decisions people make without legal advice contribute to a range of unforeseen and less than desired outcomes. 

While you may think “of course a lawyer they would say that”, know that it is truly in your best interest as issues like these can easily escalate and end up more stressful and costly than they might otherwise be.

When we assist our clients with matters like these we may advise that the best course of action is to file an Application for what’s known as a ‘Contravention of Orders’. Essentially, if this advice was given to you, it would indicate that your co-parent’s actions or behaviours would meet the criteria of the Court as Non Compliance Without Reasonable Excuse. 

While filing an Application for Contravention is one avenue, it is not the only option, as we’ll explore below.

A Contravention Application may be the best course of action and in other circumstances, an urgent application might be necessary. Or, it may be better to explore the non Court intervention methods available to get to a resolution.

Factors influencing Contravention Applications

Because we help parents with their matters relating to non compliance of Parenting Orders almost every day, we see what often leads to these issues arising and ending up in Court.

One common scenario is the withholding of children. Perhaps a parent has a desire to include children in their holiday plans despite the terms of the Orders.

Other scenarios we see include:

• When a co-parent makes medical decisions unilaterally
• When a co-parent changes a child’s school without proper communication or significant justification
• When older children refuse to comply with the conditions of the Court Order, often expressed as “they don’t want to go to their mum’s/dads & I can’t force them to.”

The reality is that Parenting Orders, whether issued by the Court or by consent, are to be followed.

In our work as family lawyers we see there is a bit of a trend where parents try to misuse contravention applications to reopen and change Final Orders. We can advise what is reasonable and necessary to ensure your actions do not reflect poorly on you in the eyes of the Court. 

Final Parenting Orders can be changed if everyone agrees. However, if there is no agreement, it is more complicated. The Court will not reconsider a Final Orders unless there is a significant change in circumstances since those Orders were made, and that in all the circumstances, it is in the best interests of the child to reconsider those Orders. Approaching this the right way is important to have the best chance at achieving the desired outcome.

As children become older (around 14 years of age or over), the Court may place more weight on the wishes of the child, subject to there not being concerns of safety, parental enmeshment or alienation, amongst other considerations.

A family lawyer with a depth of experience in managing matters like these is, without doubt, the best way to approach this. And, it’s worth mentioning at this point, that in the event this matter continues on for a few weeks or months, the longer you wait to seek legal advice about a Contravention of Orders, even if you think it will resolve itself in time, this may reflect poorly on you, influencing the judgment of the Court. This is why seeking legal advice early is particularly important, as close as possible to the moment in time these issues arise. 

Only then can you be aware of all of your options, and make well informed decisions.

Contravention of Orders Assessment

For a Contravention to be granted (we explain common consequences of a contravention below) the Court must find the co-parent to be non compliant without a reasonable excuse.

In the instance of withholding a child, central to the Court deciding on whether it meets a Contravention is whether the co-parent made a sufficient effort to resolve the issue before withholding the child (where it is safe to do so).

Resolving issues of non compliance of Parenting Orders

As family lawyers, when we learn the specifics of the family circumstances and the issues at hand, we can then provide the insights, information and advice about the options available to them and possible next steps. 

Where a child’s safety is compromised or they are at risk, it may be that we advise to do one or more of the following:

• File an Application for Contravention of Orders
• File an Urgent Application to the Court (specific to matters relating to child safety and risk)
• File an Urgent Recovery Order (where children are to be returned to the other parent)
• File an Injunction (to stop a parent from taking a particular action e.g. changing the child’s school or actioning a medical procedure)

Where the safety of children is a concern, before an Application will be reviewed as to whether it will be heard before a Court, there are what are known as Pre-Action Procedures. That is, steps that must be taken before a matter goes into the Family Court system.

Negotiation and Mediation are two of those options. In some circumstances it may be that lawyer assisted negotiation is the best first step, or a lawyer assisted mediation. These are just two of the ways to get to a resolution without the intervention of the Court.

If a matter does end up in Contravention Court (not a distinct Court but a Court that deals solely with contraventions), the outcomes for the non compliant parent can be significant.