GUIDE TO ENFORCEMENT OF CHILDREN’S ORDERS

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Paper prepared by Andrew Corish for the Family Law Reform Association September 2003

Publish Date: August 2005

This is a guide to enforcing a “child order” in the courts; in particular an application by a “contact parent” to enforce the contact orders against a “residence parent”, on the basis that the residence parent has contravened the orders without reasonable excuse.

It is certainly possible to act on your own and not have a lawyer represent you in an enforcement application. Many people do. It is understandable that, after having gone to a lot of trouble and expense to obtain the orders in the first place, they reluctant or able to afford further legal representation. However, enforcement applications can be technical and difficult. The law and procedure is constantly changing. If you are going to do it yourself, you have to go to the time and trouble to do it well. It is well worthwhile obtaining some legal advice from a family law specialist; at least at an initial stage and in respect of settling your documents.

You should think long and hard before going down the track of bringing enforcement proceedings. Certainly, it is frustrating if you are unable to see your children in accordance with court orders. But the question you must ask yourself is; will an enforcement application help the situation or in fact make it worse?

For contact orders to operate successfully, it is usually necessary that there be a fair degree of communication and cooperation between the parents. One parent seeking to have the other punished doesn’t necessarily promote such communication and cooperation. An enforcement application is extremely stressful and confronting to the resident parent and can lead to a great deal of resentment.

There are better ways to resolve disputes than by going to court. You can arrange mediation or counselling to discuss problems and promote a solution. You can discuss the matter with a lawyer and obtain assistance in negotiating a resolution and threatening the consequences if non-compliance continues. You can be more conciliatory and understanding of the difficulties the residence parent may be experiencing with the children and the contact arrangements. Sometimes there is a problem with the children or with the contact arrangements, which should be dealt with, rather than blaming the other parent. The court orders may have become outdated or impractical and need adjustment and variation. You can bring a “positive” application to vary the orders, so the contact works and benefits the children, rather than try to enforce impractical or outdated orders. You should think of speaking to a lawyer about this. The Federal Magistrates Court produced a helpful paper titled “What to do when parenting orders are not working”, available on their website.

However, in the end, if there is a deliberate disregard of the orders by the residence parent, you may have little option but to bring enforcement proceedings. Taking proceedings may be the only way of bringing home to the non-complying parent, the enormity and seriousness of breaching court orders Certainly Enforcement Applications can be effective. The procedure is streamlined and quick, compared to other family law proceedings.

Preparing for an Enforcement Application

Firstly, you need an enforceable court order. If you don’t have a copy of the court order, you can get a new copy from the Registry where the order was made. The order must be clear in the obligations it creates. If the order is vague or badly drafted, it may be in fact be necessary to obtain a variation of the order, before you try to enforce it. Secondly, you need to be able to prove one or more clear contraventions of the orders and that they were done deliberately and without reasonable excuse. You need to prepare in order to be able to prove this. It is no good making general complaints along the lines of “he/she has not complied with the orders lots of times”. You have to be like a policeman who needs to prove that at a certain date and time, a particular offence occurred.

You should keep a record of correspondence and communications if possible. For example, previous letter and emails specifying your complaints and perhaps enclosing a further copy of the court orders and drawing the attention of the other parent to their obligations, can be helpful at the hearing to overcome claims that anything was unclear or the other parent did not understand. If there has been a pattern of non-compliance, It is often sensible to set out in writing that you are coming to exercise contact in accordance with the court order at a certain date and time and expect the child to be made available in accordance with the order. It is important then that you actually turn up on that day, even if you know the child will not be made available, so the other parent cannot raise the excuse that you did not turn up and he/she was ready to comply. You may be able to anticipate problems and excuses. For example, if the other parent has previously claimed the child’s illness as a reason to deny contact, you should specify that notice should be given beforehand and a medical certificate produced.

It can be very helpful to have a witness present, when you collect the child, who can give evidence as to what he/she sees and hears, and perhaps may record it appropriately. Thirdly, it is helpful to do background preparation as to the appropriate law and procedure. The relevant sections of the Family Law Act are sections 70NB to NR and Order 35 of the Family Law Rules. You can access the law through the internet at the sites mentioned below. You can consider some of the decided cases on contravention applications. An excellent source is the Federal Magistrates Court website as set our below. In respect of the cases go to “Judgements-Family Law and Child Support-Contravention of Orders” and read some cases such as B&W (no 1) 2003.

Forms

The appropriate forms to commence proceedings are a Form 49 Application – Contravention of Child Order and Form 16 Affidavit by you and any witness, you wish to use. Precedent forms are attached to the paper. Blank forms can be obtained from the court registries or from the web sites: www.familycourt.gov.au (Family Court) and www.fms.gov.au (Federal Magistrate’s court). The forms should be typed but you can fill them in by handwriting.

Filling in the Forms:

The Form 49 Application:

The “file number” on this and other forms is the same number as on the original order, if you are in the same court, or leave blank if you are using another court and the court will insert a new number.

“4 Details of order(s):” it is better to attach a copy of the order with the court seal on it. If you do not have a copy of the court order, you should first obtain one from the court where the order was made.

“8 Details of orders alleged contravention(s)”. Number each one. It is important to include the date, time and place of each act or omission alleged to constitute the contravention. It is suggested to mention no more than 4 alleged contraventions. It is likely at the hearing that you won’t be allowed to rely on more than that, and may well be asked to choose your “best 2 or 3”, because of lack of time to hear more.

The Affidavit:

The affidavits should be fairly short and simple. They should relate the relevant facts in order of time, usually from the date of the order to the date of the last contravention. Put in any fact you think is relevant including some background information about the order and some of the events and problems you have had, but concentrate on events concerning the alleged contraventions. Any conversations should be quoted using the actual words and using inverted commas. If you can’t remember the words, it is permissible to say, ‘She said, to the effect, “….”. However, you should generally only quote the other party, sometimes if necessary you can quote the children, but you can’t generally quote what other people say, as that is usually inadmissible (that is the judge can’t take it into account) as “hearsay” evidence. You can annex to your affidavit (that is put at the end) relevant letters and documents sent to or received from the other party ( with a note saying “this is Annexure “A” referred to in the Affidavit of sworn the .).

Affidavits should be fairly bland. It is not helpful to make them works of art, using extravagant language and accusations. Just state the basic facts and events. It is not the place, and in fact not admissible to “argue” your case, or “make submissions” or make complaints about your personal difficulties and the state of family law in Australia. Stick to the facts, the same as a policeman would in bringing a charge.

Choosing the court

Claims can be brought in the Family Court, Federal Magistrates Court or Local Courts. You don’t have to use the same court where the order was made. You are entitled to use the court nearest to you. However, it is often a good idea to make the application in a court near to where the non-complying parent lives so that he/she has no excuse not to attend and his/her absence does not affect the children more than necessary. It is sometimes possible to use video links between court registries and you can make enquiries about this.

Signing and Filing

You need to sign the Application at the place indicated at the end and sign the Affidavit at the end as well as at the bottom of each page other than the cover sheet. The signing must be by way of swearing or affirming them before a Justice of the Peace or solicitor. You then need to do 2 copies and file them at the registry of the court you are going to use. There is a filing fee of $107 (at present) but such fee is waived if you are receiving social security or in financial hardship and make an application to waive the fee by filling in a form.

Service

You then need to serve the document on the non-complying parent, who becomes the person referred to in the court proceedings as the “respondent”, whilst you are the “applicant”. Service should take place as soon as possible and be personal service. That means it must be handed to the respondent by anyone other than you. It is possible to get a friend to serve the documents. You can be present when this is done but you can’t actually do it. The person who serves the documents should then file an Affidavit of Service in accordance with Form 22, a precedent of which is Attached. However, it can be a good idea to have the documents properly served by a professional process server. Sometimes the courts will assist with this. However, usually you are required to obtain your own process servers. Process servers can be contacted through the Yellow Pages. They will then serve the documents and provide you with the Affidavit of Service for a fee. You should copy the Affidavit of Service and file the original at the court prior to the hearing.

The Hearing

The court fixes a hearing date as near as practical to 14 days after filing, which date is inserted by the court on the Application form. (It may be possible to seek an earlier date if there is particular urgency.)

If the respondent fails to turn up, you need to prove service by way of the Affidavit of Service. You can then request that a warrant for the arrest of the respondent be issued by the court. This may be done and the matter is adjourned. It is much better that you tell the other party of the adjourned date by letter and try to ensure that they voluntarily attend next time.

Once the respondent attends, he/she may make an application for an adjournment to get legal advice or prepare and it is usually sensible to agree to at least one adjournment, as the court will usually grant it in any case.

There may be an opportunity to negotiate some sort of agreement. You may agree to change the court orders. You may agree to withdraw the application on some terms or conditions. If not, the hearing then commences. If it is in the Family Court, it will usually be done by a judicial registrar (who is referred to as Judicial Registrar), in the Federal Magistrates Court by a federal magistrate (who is referred to as Your Honour), in the Local Court by a magistrate (who is referred to as Your Worship). You may first be asked to indicate which of the alleged contraventions you are seeking to proceed with and may be asked to choose your best two or so, because of lack of time.

The respondent is then asked to stand and is informed by the judicial officer of the alleged contraventions against them as stated in the Application. The respondent is then asked to state whether he/she admits or denies the allegation.

If the respondent admits them, you move straight to the issue of penalty. If the respondent denies the allegation, you may be asked to go into the witness box and be available for cross-examination. There has to be evidence before the court necessary to prove the basis of a case; namely, that the non-complying parent has “contravened’ the order that he/she was bound by and has done so intentionally, or has made no reasonable attempt to comply with it, or has intentionally prevented compliance or aided or abetted a contravention. Such evidence should be contained in the affidavits you have filed. If you have witnesses, they should wait outside until it is their turn to be cross-examined. The judicial officer then rules if the basis of a case (a “prima facie” case) has been established. If not, the case is dismissed.

Often, by the stage the matters comes to hearing, the respondent will admit there is a contravention but says he/she has a reasonable excuse for the contravention. If so, it is up to the respondent to prove this on the balance of probabilities; that it, that it is more likely than not. The respondent would then usually go into the witness box and be available for cross-examination. The respondent is not obliged to put on any defence up to that stage, but may do so then, either verbally or by filing affidavits, explaining their reasonable excuse.

The law as to what constitutes a reasonable excuse is set out in Section 70NE of the Family Law Act. In respect of a contact order, it is a reasonable excuse if the respondent believes on reasonable grounds that it was necessary to deny contact in order to protect the health or safety of a person including the respondent or the child, and the period of deprivation was no longer than necessary to protect the health or safety of the person or child.

You then are entitled to cross-examine the respondent. Basically, you should politely “put” or “suggest” your case to the respondent, to support the summary of your case you are going to make at the end and particularly, if you are going to suggest that the respondent is not telling the truth about something; to give the respondent the opportunity to explain. If they do not have an adequate explanation, you will eventually ask the court to believe your version of events. Most questions in the cross examination should start with such words as “I suggest to you…”, or “Isn’t that the case, that…..”. Sometimes, you will ask them to explain “Why?”, particularly if there can be no adequate explanation.

A common excuse often offered is that the child was too sick that weekend to go on a contact visit. If so, your cross-examination may suggest to the respondent that she didn’t take the child to the doctor, nor that she hasn’t produced any medical report to the court, which would be reasonable and expected if the child was really sick, and particularly if you had made this clear that you would require this beforehand. Such cross examination forms the basis of your conclusion that the respondent should not be believed about such an excuse.

Sometimes the respondent does produce a medical certificate of some sort. You do have a right to demand such evidence should have been in affidavit form by the doctor who should be available for cross-examination.

Other excuses are that you did not turn up when you were supposed to or had indicated that you were not coming that weekend or the car broke down or such lame excuse. You need to be ready to respond, to put things to the respondent to show that the excuse is not reasonable.

The other and most common “reasonable excuse” is that the child did not wish to go on contact with the other parent, indeed refused to go. It is usually insufficient for the respondent to just state that. Parents can’t just decide that orders are no longer beneficial and then ignore them. If they claim that, they should make an appropriate application to vary the orders. It is not usually appropriate for the children to make such decisions as well, particularly if they are young. It is no more appropriate than that they decide at that age when to go to the dentist or what medicine or food they should eat.

Guidance on this issue can be found in the case of Stevenson & Hughes (1993) 16 FAM LR 443. In that case, the mother was supposed to make the children available for telephone contact. She said that she dialled the father’s number and asked the child whether he would come and speak to his father and he shouted: “No”. The mother then made no further effort to persuade the child.

Justice Nygh in the judgement in the Full Court said as follows:

“The question really before the court, and before us, is essentially how far she has to go to make a reasonable attempt. The wife’s argument was that she had done all that is humanly possible to comply with the order by issuing the invitation. This is what I might call a classical case which the Full Court dealt with in the case of “Stavros”, namely that there is an obligation cast upon the (residence)parent to take reasonable steps to make the child available for (contact). It is not open to the (residence) parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the (contact) parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms, behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep and, indeed, this situation is directly comparable to it. It is quite clear that such an approach is wrong and the wife in this circumstance, clearly, was in breach of her obligations under the order”.

The point is that a parent has a positive obligation to make the child available for contact and to encourage, persuade and facilitate contact. You should ask questions in cross examination seeking to show that the other parent did not fulfil this obligation.

At the end of the evidence, you will usually be asked to make your submissions and summarise your case.

The Court then makes a finding whether one or more contraventions have occurred. If it makes the finding, the Court then moves on to consider the penalty to be imposed.

Penalties

The relevant law on penalties is set out in the Family Law Act at sections 70NB – NR. You will often be asked as to what penalty you are seeking.

If it is a first offence, it is dealt with as a Stage 2 matter, unless the court considers the person showed such a “serious disregard for his or her obligations under the order” that the court can go straight to Stage 3 enforcement. This is very rare and has been invoked when a child was withheld for a long periods, and/or there has been considerable violence. (see B&M 2003 referred to above.)

Under Stage 2, the available penalties are limited to orders that the person to attend a “post-separation parenting program” or that the court makes a further parenting order that compensates for contact foregone, or adjourns the proceedings to allow either or both parties to apply to change the original orders.

As can be seen, the Stage 2 penalties are really quite weak if there has been a deliberate pattern on non-compliance. However, it is necessary to establish a Stage 2 non-compliance, in order that the court has available the more serious Stage 3 penalties in the event of a subsequent non-compliance.

If it is a second “offence”, or a first offence deemed sufficiently serious to be dealt with as a second offence, it is called a Stage 3 matter. If so, the range of penalties are as follows:

Community service order

Bond

Variation of original orders

Fine of up to $6,000

Sentence of imprisonment up to 12 months

Sadly, community service orders and weekend detention orders are still not currently available in NSW to my knowledge, because of funding disputes between the state and federal governments. Accordingly, the penalties are at present limited to a bond, fine or goal. Goal has been imposed but generally in the most severe cases and or where there has been violence and/or the person has absconded with children for a considerable period of time. Orders can be made that the unsuccessful party pay part or all of the legal costs of the other party, if they have been incurred, depending upon the ability to pay.

Conclusion

In summary, you can bring a successful enforcement application for non-compliance with a child order. You can do it on your own, and do it effectively. However, to be successful, you need to put the necessary preparation into the matter. It is of course best to seek to avoid enforcement applications and only use them as a last resort. However, the courts certainly have an interest in making sure court orders are complied with, and non-complying parents who deliberately breach orders without excuse may be shocked when they find they are treated with very little sympathy by the court, and may in fact be subject to quite serious penalties. If you are polite, patient and cooperative and above all show that you are just doing what is necessary for the welfare of the children, you can do very well.