A complete legal guide to the contravention of parenting orders

Every day separated parents across Australia make decisions for their children’s benefit, like schooling, religion and health. In an ideal world, this wouldn’t require the court system or family lawyers.

By James Caraglanis, Lawyer at AFL Kordos, Melbourne.

In reality, there are many family situations where this isn’t possible. In these cases, the courts are sometimes called upon to make orders for the care of children, or “parenting orders.” Parents who have obtained parenting orders from the court will sometimes find themselves in situations where the other parent has not complied with those orders. This is often referred to as a ‘breach’ or a ‘contravention’ of the orders. In some cases, these breaches may occur many years after the orders have been made.

So, what do you do when a parenting order is breached? What are your rights and obligations?

What is a contravention of a court order?

Firstly, under the Family Law Act, the court may find that a person who is bound by a court order has contravened that order if they:

1. Intentionally failed to comply with the order; or
2. made no reasonable attempt to comply with the order.

Alternatively, a person who isn’t bound by an order of the court (such as a stepparent who was not a party to the proceedings in which the orders were originally made) may also contravene orders in circumstances where they have:

1. Intentionally prevented compliance with the order; or
2. aided or abetted a contravention of the order.

Reasonable excuses for contravention of parenting orders in family law

Evidently, plenty of real-world situations may arise that could result in a parent breaching parenting orders.  

If a person has contravened a court order that they are bound by, it may be open for that person to argue that they had a reasonable excuse for doing so. Under the Act, a person may have a reasonable excuse if:

1. They contravened the order because (at the time of the contravention) they did not understand the obligations imposed by the order (e.g., where orders have been made in the absence of the other parent). 
2. The contravention (which resulted in the child not living with, spending time or communicating with the other parent) was necessary to protect the health or safety of a person (including the child). 

What can I do if I believe someone has contravened parenting orders?

If you believe that someone has contravened parenting orders without a reasonable excuse, you may consider filing a contravention application with the court.

Contravention applications are proceedings brought under the Act which are quasi-criminal in nature and are heard as such. This means that a person bringing a contravention application must be meticulous in accurately establishing the alleged contravention of court orders.

Furthermore, it’s important to note that contravention applications are distinct from ‘Enforcement Applications’, which aim to compel a person to comply with court orders that they are bound by. You should carefully consider and obtain advice as to which course of action is preferable for you.

The person bringing the contraction application (called the applicant) bears the responsibility of proving that, on the balance of probabilities, the respondent (the person the applicant claims breached the parenting order) knew of their obligations under the Orders and that they had breached the court orders without reasonable excuse.

If the respondent wishes to defend the proceedings, they may choose to either deny the breach or admit to the breach but attempt to establish that they had a reasonable excuse for doing so. Your solicitor will be able to assist you in determining which defence or reasonable excuse of contravention is most suitable for your matter.

How to file a Contravention Application?

In Western Australia, a contravention application should (in most cases) be filed in the Family Court of Western Australia. In all other states and territories, a contravention application should be filed in the Federal Circuit Court and Family Court of Australia (FCFCOA). All contravention applications filed in the FCFCOA will be dealt with through the court’s ‘National Contravention List.’

Moreover, an applicant’s decision to file a contravention application is not a decision that should be made without careful consideration. It is important to note that the court can make an order that the applicant pays for the respondent’s legal costs in connection with the proceedings if:

1. The court has dismissed the applicant’s application – for example, where the application had no real prospects of success; or
2. The court accepts that the respondent had a “reasonable excuse” for contravening the order. 

Therefore, if you are considering bringing a contravention application, you should consider obtaining expert legal advice before filing your application.

Penalties where a contravention application is successful

Finally, where an applicant has successfully argued that the respondent has breached a Court Order without reasonable excuse, the court is able to impose a variety of sanctions on the respondent.

For example, depending on the severity of the breach, the court may order that the respondent:

1. Undertake community service (if the court is empowered to make such an order under the laws of a particular state or territory).
2. Enter into a bond (with or without surety), which may include conditions that the respondent:
   • Attend an appointment (or a series of appointments) with a family consultant;
   • Attend family counselling;
   • Attend family dispute resolution; or
   • Be of good behaviour.
3. Facilitate “make-up” time between the children and the applicant if:
   • The applicant has missed out on time with the children as a result of the breach; and
   • Making such an order is in the best interests of the children.
4. Pay the applicant’s legal costs of and incidental to the contravention application.
5. Pay a fine of not more than 60 penalty units.
6. Be imprisoned for a period of no more than 12 months.

Experiencing issues relating to the contravention of Parenting Orders or considering filing a Contravention Application? Our friendly and knowledgeable team is available to assist you. Please feel free to reach out to our team directly or request a call back via the form below.