Breaches of parenting orders
by Maretta Twentyman & Debbie Dunbar - Morrison Kent
There are various things that can be done if someone breaches, contravenes or fails to comply with a parenting order. What the most appropriate course of action is will depend on the terms of the order and the circumstances of the breach.
If you have day-to-day care or contact with a child under a parenting order, and another party to that order refuses to return the child to your care, the first step is usually to call the police to assist. Whilst the police may help you to try and resolve the situation, they do not generally have the power to physically uplift a child without a warrant. You can apply to the Family Court for a warrant to enforce a parenting order, which can often be done on an urgent “without notice” basis. A warrant can authorise someone to uplift a child using reasonable force if necessary. Given how distressing the execution of a warrant can be for families, this is viewed as a last resort.
There are various other orders the Court can make if they are satisfied that a party to a parenting order has contravened it. This includes:
- Admonishing them – which is essentially a formal criticism or ‘telling off’ by a Judge;
- Varying (changing) or discharging (cancelling) the order – for example, by reducing the time during which the child is in the care of the person who contravened the order;
- Ordering them to enter into a monetary bond as an assurance that they will not contravene the order again;
- Ordering them to reimburse the other party to the order for costs incurred as a result of the contravention;
- Holding them in contempt of court.
Keep in mind also that it is an offence to intentionally breach, or prevent compliance with, a parenting (or guardianship) order without reasonable excuse, and you can be criminally charged.
There is nothing to stop parties to a parenting order from varying the terms by consent. However, it is important to ensure that there is clear agreement for any informal changes like this so as to avoid any of the consequences outlined above. If you are a party to a parenting order which is being, or has been, breached or you have concerns about the terms of the order, it is best to seek legal advice to discuss your options.If you would like any further information or advice please contact either of the article authors: Maretta Twentyman or Debbie Dunbar, or the Morrison Kent Wellington office (04) 472-0020.