The Family Court of Australia has the jurisdiction to make various parenting orders under the Family Law Act 1975 (Cth). The court makes parenting matters to keep children safe, and so that they can enjoy a meaningful relationship with both of their parents. Most parenting matters are handled without the court’s involvement. Court orders are normally a last resort when negotiations between the parents have failed. If you fail to comply with a parenting order that the court has made, a contravention application may be brought against you.
This article provides information on what a parenting order breach is, and how to make a contravention application to the court, when a breach has occurred.
What are parenting orders?
The Family Court can make parenting orders if negotiations between the two parties have broken down. Parenting orders bind the parents to a number of conditions that they must abide by. If you do not abide by the conditions, you may face penalties, which will depend on the seriousness of the alleged contravention, and if it is your first time contravening a parenting order.
You, and the other parent subject to the order, must do everything possible to follow the conditions that the court has set out. The order will remain in force until a new parenting plan is made that changes it.
After the order has been made, you and the other parent may discuss a change to the arrangements. Even if you both agree on changes, they do not change the order. This means that you are still under the conditions set out in the existing parenting order. The only way to change court orders is to file an application to change the order. To do this, you will need to apply for a consent order.
What are consent orders?
After parents have reached a parenting plan agreement, they can apply to the court for consent orders.
After the court has approved the changes, the consent order becomes a legally binding court order. This means you must stick to its conditions. Failure to do so may result in court ordered penalties.
What are some common conditions of parenting orders?
Some common conditions of parenting orders may include that:
- your child can only have supervised visits with you
- you are to take your child to spend time with their grandparents once a week (or at the agreed frequency)
- you are not to consume alcohol in your child’s presence
- you are not to have a certain person, or family member at your house when your child is staying with you
If a person fails to comply with a court order, then you can make a contravention application.
What is a contravention order?
All court orders made by the Family Court of Australia are legally enforceable, and you must take reasonable steps to comply with an order. A contravention occurs when:
- you intentionally disobey the conditions of the order
- you do not make a reasonable effort to comply with the order
- you intentionally prevent another person from complying with an Order that has been taken out against them
- you help a person to breach the conditions of an order
What is a reasonable excuse for contravening an order?
You may not have intentionally set out to contravene the parenting orders. Reasonable excuses for contravening an order include:
- lack of understanding of what the order required you and the other party to the order had to do
- the child’s safety was in danger because of family violence
- the child’s safety was in danger because someone in the vicinity was consuming illegal drugs
- you only contravened the order for a reasonable period
Example 1
You have an order which says that your child will spend equal time with each parent. Your daughter then gets sick and you obtain a medical certificate. The court may find that you contravened the arrangement, however, it was because there was a risk to your daughter, and you were genuinely acting in her best interests.
Example 2
Your car broke down, or there was a major car accident on the highway, which delayed you handing over your son to their father. The court may consider this to be a reasonable excuse provided you handed over your son at the earliest opportunity.
Do I need to supply evidence?
Yes. In any circumstances where court orders are not complied with, the person who failed to comply with the order will need to supply evidence that they had a reasonable excuse for non-compliance. The court will make a ruling based on the probabilities.
What is not a reasonable excuse?
The court does not consider the following, as sufficient reasons for a person not complying with a ruling that was made:
- you do not agree with the order;
- you have a personal reason for not complying with the order such as not liking your ex’s new partner;
- your child does not want to spend time with the other parent.
The courts consider that both parents should be able to enjoy a meaningful relationship with both of their parents. This is as long as they will not be exposed to family violence or any other type of physical harm.
What are examples of parenting order breaches?
Example 1
There may be parenting orders that say one parent has equal shared parental responsibility for their children. One of the conditions of equal shared parental responsibility is that the two parents consult each other before making major long-term decisions about any children they share. One of the parents then decides to change the children’s name, without consulting the other parent.
Example 2
The parenting orders might say that a child is only supposed to stay with one of the parents at a certain time. For example, the child stays with the father on the weekends but the mother on the weekdays. The mother then chooses not to return the child to the father on the weekend.
Example 3
Parenting orders may say that a child is to spend time with a certain person, such as their aunt, but one of the parties to the parenting orders prevents the child from spending time with the child’s aunt.
In all of these cases, the parent breached the orders and they may be subject to certain penalties.
What are the penalties for breaching a parenting order?
If the court determines that a person has failed to comply with parenting orders, then the court has the jurisdiction to impose a punishment, or they can make a new order. The court may decide to:
- require you to make up time, to compensate for the time that was missed;
- require you to attend a post-separation parenting course;
- require that you enter into a bond for a certain period, such as requiring you to attend counselling for two years, or be of “good behaviour” for two years;
- vary the existing order;
- require that you undertake community service;
- issue you with a fine;
- order you to pay the other party’s legal costs; and/or
- sentence you to imprisonment of up to 12 months.
The court normally reserves imprisonment for the most serious cases only, such as if you have a history of contravening court orders, or if you try to take your children out of the country without obtaining authorisation from the other parent.
What is the court process?
If a parent has not complied with the court order, the court’s first course of action is to determine whether or not the original order should be varied so that future breaches can be avoided.
In most cases, the court will make an order for you to make up the time, and to attend a parenting course. The courts will be more lenient if it is the first time that you have breached a parenting order.
If you consistently contravene the court orders, then you will be liable to tougher penalties. The court will consider the seriousness of your actions, and the circumstances surrounding the non-compliance.
If you have breached a court order, you should our family lawyers on 1300 667 461 for free initial legal advice at the earliest opportunity.
What is a contravention application?
You can apply to the court if the other party has not complied with a parenting order. The purpose of a contravention application is to ensure that any existing parenting orders are complied with.
The most common reason a parent would apply for a contravention order is when the other parent is not following the arrangements set previously by the court. For example, they are not obeying custody orders.
If you are thinking about making a contravention application to the court, it is very important that you get legal advice as soon as you can. Unified Lawyers can review the existing arrangements you have in place for your children. They will see if the matter can be settled with the other party outside of court.
Generally speaking, most family matters involving children can be resolved outside of court. Our team is experienced in negotiating a desired outcome, without going to court.
How do I make a contravention application?
Before you make a Contravention application to the Family Court of Australia under Division 13A of Part VII of the Family Law Act 1975 (Cth), you must first make a genuine effort to resolve the matter privately, or use a family dispute resolution service.
If you decide to make a contravention application, you will need to file:
- An application with details of the alleged contravention
- An affidavit
- A certificate from a Family Dispute Resolution Practitioner unless you have an exemption as outlined in the Family Court’s Compulsory Family Dispute Resolution – court procedures and requirements fact sheet
- A copy of existing orders
You do not need to pay a filing fee. After you have filed the contravention application, you will need to serve the respondent.
You should also seek legal advice from Unified Lawyers before you file the contravention application.
What if a contravention application has been made against me?
If you have been served with a Notice of a Contravention Application after you contravened an order, you should call our family lawyers at the earliest opportunity.
We can review the circumstances around your children and any existing orders. We will then make recommendations on what the most appropriate course of action is.
Why bring a contravention application before the court?
The main reason to file a contravention application is when you want court orders to be enforced. The court has the power to impose a penalty or a remedy. They can also make it clear that all orders must be followed.
Who, and what is involved in contravention proceedings?
After you have made a contravention application, the hearing will follow several steps.
The court will take submissions from the respondent, who the application is being brought against, and the applicant, who has made the contravention application.
The judge will review any existing orders and if suitable, will change them. The respondent will then have a chance to admit or deny the allegations. If they admit the breaches, the judge will ask if they have a reasonable excuse, and they will be asked for supporting evidence.
If the respondent denies the allegations then the applicant’s case will be heard. They will be cross-examined and the respondent will be given the chance to contest any evidence. Witnesses will then be called to give their evidence.
The judge will then make a judgment, based on the evidence given, about whether or not a contravention occurred. If the applicant’s allegations occurred, then the judge will need to decide whether or not the orders should be varied.
The judge will then hear the respondent’s case, and they will have the opportunity to either disprove that the breach occurred or prove that they had a reasonable excuse.
Both the respondent and the applicant will be asked to make final submissions. During the final submission, the court will not accept any new evidence.
After the case has been heard, the court will make its decision.
Contravention proceedings and court costs
You do not need to pay a filing fee when you file a contravention application.
Evidence for contravention of court orders
Whether you are the respondent or the applicant in a contravention hearing, you will need to supply evidence to support your case. This may include:
- the circumstances surrounding the breach
- whether or not you breached the order once, or multiple times
- why the orders were breached
- the seriousness of the breach
Proof that the court may accept could be a signed affidavit, a medical certificate, video or camera footage if there was a motor vehicle accident, etc.
Application to change the primary order
If your circumstances have changed and the existing orders are no longer suitable, you can file an application to change the existing orders. You have two options:
- Sign draft consent orders, which the Family Court will enforce as legally binding orders.
- Enter into a parenting plan.
If you have used a dispute resolution service in the last 12 months, you do not need to do so again, unless you cannot reach a mutual decision.
Resources and useful links
Get legal advice now
If you have tried to negotiate with the other party, without success, contact us to see how we can help. We can help you make an application to vary the existing conditions or can review arrangements so that future breaches do not occur.
Before we make any recommendations, we will consider all the circumstances and the desires of both parties. Our goal is to help you reach an outcome that both parties are happy with.
Our team of divorce lawyers are just a phone call away and any discussion you have with them will be treated in the strictest of confidence.
Call us on 1300 667 461 for an obligation-free initial conversation.
