Can Police Enforce Family Court Orders?
In Australia, police do not generally enforce Family Court Orders simply because one parent alleges that the other has failed to comply with them. Parenting Orders are ordinarily enforced through the Family Court. However, there are circumstances in which police may become directly involved, particularly where a Court has made an Order authorising police assistance, or there are separate concerns involving family violence, child safety or criminal conduct.
What Is a Family Court Order?
Most Parenting Orders in Australia are made under the Family Law Act 1975 (Cth) (‘the Act’) by the Federal Circuit and Family Court of Australia (‘FCFCOA’). Parenting Orders can deal with matters such as who a child lives with, the time a child spends with each parent or another person, parental decision-making and communication.
Once made, a Parenting Order is legally binding. A person cannot simply choose to disregard an Order because they no longer agree with it or believe that another arrangement would be preferable.
Can Police Enforce Family Court Orders in Australia?
Generally, police are not the primary mechanism for enforcing Parenting Orders.
For example, if an Order provides that a child is to spend the weekend with one parent and the other parent does not make the child available, a parent should not assume that police will attend, take the child and deliver them in accordance with the Parenting Order.
A failure to comply with a Parenting Order is ordinarily dealt with under the Act. Depending on the circumstances, the affected person may need to apply to the Court concerning the alleged contravention.
Police involvement is more likely where the Court has specifically authorised police to take particular action, or where the circumstances independently give police a reason to intervene.
What Is a Recovery Order?
A Recovery Order is an Order under the Act requiring the return of a child. It can authorise or direct specified persons, including the Australian Federal Police, state or territory police and other persons authorised by the Court, to take steps to recover the child.
Recovery Orders may be sought in circumstances where, for example, a child has not been returned after spending time with a parent, has been removed contrary to parenting arrangements, or cannot be located.
A Recovery Order is different from simply showing police a copy of an existing Parenting Order. If there is no Recovery Order or other relevant authority, police may tell a parent that the alleged breach needs to be dealt with through the family law system.
Whether a Recovery Order should be sought, and how urgently, depends on the circumstances.
What Happens if a Parent Breaches a Parenting Order?
The Act contains a specific regime dealing with contraventions of child-related Orders.
Whether a person has legally contravened an Order can involve more than establishing that the terms of the Order were not followed. The Court may need to consider the person’s conduct and whether any statutory defence or reasonable excuse applies.
For example, circumstances involving a genuine concern for a child’s health or safety may be relevant. However, a parent should be cautious about deciding for themselves that they are entitled to disregard an existing Court Order. The legal position will depend on the facts.
Where a contravention is established, the Court has a range of powers. The appropriate response will depend on matters including the nature and seriousness of the contravention and the circumstances surrounding it.
If an Order is repeatedly being ignored, family law advice should be promptly sought.
What if the Child Is in Immediate Danger?
An alleged breach of a Parenting Order and an immediate safety issue are not the same thing.
If there is an immediate risk of harm, family violence, threats, assault, abduction or other potentially criminal conduct, police have powers and responsibilities that arise independently of the Parenting Order.
In an emergency, call 000.
Depending on the circumstances, child protection authorities may also need to become involved.
Parents should not avoid contacting police about an immediate safety concern simply because parenting proceedings are underway. Equally, police involvement in a safety incident does not necessarily determine the underlying family law dispute.
Family Violence Orders
Family Violence Orders, known as Intervention Orders in South Australia and by different names across other states and territories, operate under state or territory legislation and are distinct from Parenting Orders made under the Act.
Police commonly have specific powers in relation to family violence, including responding to alleged breaches of Protection Orders. Breaching a Family Violence Order may also constitute a criminal offence.
Difficult issues can arise where a Family Violence Order and a Parenting Order both exist. Commonwealth family law contains provisions dealing with the interaction between parenting arrangements and Family Violence Orders.
If there appears to be an inconsistency between Orders, it is important to obtain legal advice rather than assuming that one can simply be ignored.
Can Police Remove a Child From the Other Parent’s Care?
A parent should not assume that police can remove a child merely because they produce a Parenting Order stating that the child is supposed to be with them at that time.
Police may be able to take action where they are authorised under a Recovery Order or another applicable legal power. They may also intervene where there are separate child protection, family violence or criminal law concerns.
Without such a basis for intervention, the appropriate course may instead be an application to the Court.
This distinction is particularly important when parents are dealing with changeovers. Calling police whenever a changeover does not occur as expected will not necessarily result in the Parenting Order being immediately enforced.
Other Parent Will Not Return Your Child
The appropriate response depends heavily on the circumstances.
If there is an immediate risk to the child’s safety, contacting police should be the priority. If the child’s whereabouts are unknown or there are concerns that the child may be removed from Australia, urgent legal advice may also be required.
Where there is no immediate danger but an existing Parenting Order has not been complied with, family law remedies may include seeking a Recovery Order, commencing contravention proceedings or applying for other appropriate Parenting Orders.
The urgency of the situation matters. A child who is several hours late returning from scheduled time presents a very different situation from a child who has been taken interstate, concealed or is at risk of being taken overseas.
Can You Call the Police if There Is No Parenting Order?
The absence of a Parenting Order does not prevent police from responding to alleged criminal conduct, family violence or immediate safety concerns.
However, where the disagreement is simply about which parent should have the child, and there are no relevant Court Orders or separate grounds for police intervention, police may not be able to resolve the parenting dispute.
In those circumstances, legal advice should be sought.
What Should You Do if a Family Court Order Is Being Breached?
If a Parenting Order is not being followed, keep an accurate record of what has occurred, including relevant dates, communications and missed changeovers. Avoid escalating the dispute or taking retaliatory action that may itself be inconsistent with existing Orders.
It is also important to read the precise wording of the Order. Parenting Orders can be detailed, and what a person considers to be a “breach” may not necessarily amount to a contravention of the actual Order.
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Related Blog – Can a Parent Withhold a Child Without Parenting Orders?
