Having an ex-partner who is not complying with the Family Court’s orders can be a stressful and emotional situation. Understanding how the Court considers the orders to be breached and what you can do about it will help you gain control in this difficult time. This article discusses the practical steps you can take to ensure your ex-partner abides by the terms of any parenting orders.
Breaching the orders
Think about the orders in place and what your ex-partner is specifically doing to breach them. The Court considers an order breached when the person intentionally fails to comply or makes no reasonable attempt to comply. It can also include when the person intentionally prevents or tries to prevent another person complying with the order. For example, a breach of an order may be when your ex-partner has refused to return your child to you after a visit and the Court has ordered that the child is to live with you.
The Court will think about whether the person has taken all reasonable steps to comply with the orders, and there are times where a reasonable excuse will mean they have not breached the parenting orders. Examples of this include where the person didn’t understand what they had to do under the order, or they reasonably believed they had to breach the order to protect the safety of another person or themselves. The breach of the order must also not have lasted longer than was necessary to ensure the safety of the person in that situation.
Fixing the problem
Now that you know what the Court will think about when considering if the orders have been breached, you need to ensure that your ex-partner complies with them.
First you will need to attend mediation with your ex-partner to try and work out the issues unless you can show that there is an exception to your case. The Court won’t let you file an application to help with the orders unless you have attempted mediation. Some of the exceptions to this include when there has been family violence, a risk of abuse to a child or when the person has shown serious disregard for an order made in the last 12 months. If mediation is unsuccessful, or you have an exception to attend, you can then apply to the Court for what is called a ‘contravention application’ and ask them to help at that point.
If the Court decides that your ex-partner has breached the parenting order, they have a few different actions they can take. If your ex-partner has kept your child after a visit and refused to return them, the Court can order that you receive extra time with your child to make up for the time you have missed out on. They can also order your ex-partner to attend parenting programs to help them understand what they can and cannot do after separation and to also remind them to act in the best interests of the child.
The Court might order them to comply with certain requirements for a period; for example, this could be attending counselling sessions for one year. Some more drastic options include imposing a fine, incarceration for up to 12 months, as well as ordering them to pay your legal costs. The Court can also decide to change the original orders if they think it will help to prevent any future issues in complying with the orders.
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