Is your ex-partner breaching a Child Arrangements Order?

Senna & Aldenberg & Anor [2018] FCCA 2711

In October 2014 in Australia, an Order was made by agreement which provided for the children to live with the mother and spend time with the father.

Shortly after the Order was made, the mother moved with the children from the city where they and their father had been living. The mother removed the children from their school and commenced home education. She changed the children’s identities and moved around every three to four months for nearly three years, before the children were found which prevented the father from having any direct or indirect contact. The mother raised allegations of domestic violence against her former husband as the reason for her moving. The allegations were found to be fabricated.

The father obtained an Order, known as a ‘location order’. The location Order, directed the grandmother to reveal where the children were living. The children were at a property owned by their grandmother and had been living with her and their own mother for six months prior being found. The grandmother failed to disclose this.

Imprisonment 

The father brought applications against the mother and the grandmother for their breaches of the respective Orders. Both the mother and grandmother accepted their breach of the Orders. The mother was sentenced to 18 months imprisonment and the grandmother to six months but was required to serve three due to her age and her poor health.

Imprisonment was considered appropriate for the mother given ‘the significance of her conduct and to underscore the importance of compliance with orders of a court exercising jurisdiction under the Family Law Act’. The Judge imposed a sentence to deter other people from breaching Orders. The mother was found to have ‘deliberately ignored’ the Order. A fine was considered insufficient for the grandmother ‘because of the seriousness of the conduct in the circumstances’.

Imprisonment and enforcement of an Order also takes place in England. In Brown v Davies [2013] EWHC 3523 (and see also Re Davies [2013] EWHC 3294]) imprisonment was ordered against the maternal grandparents (Mr and Mrs D) and maternal aunt (Mrs W). The father had not seen the child since 18 December 2011, despite an Order being made in June 2011 ordering regular contact between the father and the child. It transpired that the mother had left Cardiff and gone to Russia with the child.

Location Orders were made against the grandparents and aunt requiring them to provide the court with information about the location of the child. Consequently, the grandparents and aunt attended and gave evidence on oath about their ability to contact the mother and the location of the child. The Judge was ‘in no doubt whatsoever that all three of them are lying …’ to the Court.  The grandmother said, under oath, that she had no way of contacting the child’s mother but had sent text messages to the child’s mother which she subsequently deleted.

At the time of sentencing each of them to twelve days imprisonment (half to be served), His Honour Mr Justice Keehan said:

‘If in the future the need ever arises to find your daughter and/or …[the child] I will expect you to cooperate with orders of this court and, whether out of a misguided sense of loyalty or otherwise, not to treat this court with contempt and cause yourselves, each of the three of you, to have to go through such distressing times and distressing periods in prison.  You have all brought this on yourselves.  I trust it will never be repeated again.’

Things to remember

1. Do not agree to an order if you cannot comply with it.
2. Obtain legal advice so you fully understand your obligations and your rights.
3. It is imperative to comply with an order of a court, whether the order relates to parenting or financial matters. Breaching a court order has serious consequences including fines and, in some circumstance imprisonment.
4. Failure to comply with an interim Child Arrangements Order can have a detrimental impact to the final order the court makes in your case.

Should you need any information or advice if your ex-partner is breaching an Order or if you are concerned that you may be breaching an Order please contact the Family Team at Emery Johnson Astills on 0116 255 4855 to book an initial fixed fee appointment.