07 Aug Breach of Parenting Orders – Withholding Kids

So you finally got some court orders about your child’s right to spend time with you.

But what happens when the other parent is withholding the children with excuses and parenting orders are breached?

This was looked at in the recent case of Raki & Perez Varela (2018)

Background of Raki v Perez case

• Parties began a relationship in 2004/2005
• Child, R, 10yo (almost 11) born in 2007
• Parties separated in 2008
• Parenting proceedings have been going on since 2010
• Final orders were made in March 2013
  • Mother had alleged sexual abuse, but the court did not find enough evidence to support this; Court believed the only risk with child’s time with Father was Mother’s increasing anxiety
  • Court orders made for the Father to have regular contact
• September 2013- Father claimed Mother had contravened by withholding child
• March 2016, further parenting orders were made by consent largely the same as the March 2013 orders.  They included a condition that parents were not to take the child to individual counselling without the agreement of both parties
• September 2016, Father filed another contravention application for the same reason, alleging Mother was withholding child and obstructing time. Father later withdrew the application after mother eventually made the child available.
• June 2017, Mother applied for orders that allowed her to take R overseas and for sole parental responsibility for medical care
• August 2017, Father filed another contravention against mother for 6 contraventions – 3 cases of not facilitating his time with the child, and 3 cases of the child attending counselling without his consent
• Mother said she acted on the advice of child services workers and that she had a duty to protect her child and not to force the child to go if he did not want to
• The three (withholding time) contraventions were proven.
• Mother admitted she took children to a psychologist without Father’s consent, but says she was advised to by child services after taking the child to a hospital for anxiety to do so.

Court Decision

• The court found that the Mother believed the referrals to a psychologist was necessary to protect the child, and that her belief was reasonable in circumstances. Her contraventions on this basis were reasonably excused.
• But she had to face sentencing on breaching the orders by withholding the child on the other 3 occasions.

The case has been adjourned for sentencing.

Penalties for breaching parenting orders

Contravention of parenting orders are quasi-criminal proceedings and the Family Law Courts have the power to impose penalties. Such penalties can include any of the following:

• Compensating a party for time lost with their child as a result of a breach by the other party
• Ordering the other party to enter into a bond for a period of up to 2 years that may require that person to attend family counselling, family dispute resolution or ‘be of good behaviour‘
• In circumstances of a serious breach, making community service orders or even terms of imprisonment.

Where do I stand?
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