Contravention of parenting orders – does it really matter?
Put simply, yes.
If the Family Court makes an order, either by consent of the parties or by determination of a judicial officer, it is legally enforceable and must be obeyed. Each person affected by each order must comply with the order and take all reasonable steps to do so.
What is a contravention order?
A “contravention” is commonly known as a “breach”. Contravention of a parenting order occurs when:
- a person bound by an order intentionally fails to comply with the order;
- a person bound by an order makes no reasonable attempt to comply with the order;
- a person intentionally prevents compliance with an order by a person who is bound by it; or
- a person aids or abets a contravention of an order by a person who is bound by it.
What sorts of actions might constitute a contravention of parenting orders?
Common contraventions of parenting orders include:
1. Where the parenting orders say a person has parental responsibility for a child, preventing that person from execution of their responsibility.
For example, the Family Court might order equal shared parental responsibility between parents for a child. This requires parents to consult one another about major long-term decisions concerning the child and come to an agreement before such decisions are made. If one parent unilaterally baptises the child and raises them in observance of Catholic faith without the other parent’s agreement, they would be in contravention of the order for equal shared parental responsibility.
2. Where the parenting orders say a child is to live with someone, removing the child from that person’s care during the ordered time, or not returning the child to that person’s care during the ordered time.
For example, the Family Court might order a child to live with the father and spend time with the mother. If the mother refused to return the child to the father at the conclusion of her ordered time, she would be in contravention of the live with order.
3. Where the parenting orders say a child is to spend time with someone, preventing the child from spending time with that person, or negatively impacting upon the child’s time spent with that person.
For example, the Family Court might order a child to live with their grandparents and spend time with the father. If the grandparents collected the child from school early, preventing the father from collecting the child himself and spending his ordered time, they would be in contravention of the spend time with order.
4. Where the parenting orders say a child is to communicate with someone, preventing the child from communicating with that person, or interfering with the communication.
For example, the Family Court might order liberal communication between a child and the mother on the evenings that the child spends time with the father. If the father sits in on all Facetime calls between the mother and the child, intervening and ending the conversation early, he would be in contravention of the communication with order.
What is a reasonable excuse for a contravention order?
If the contravention of a parenting order has been established, the only legitimate defence is a “reasonable excuse”. Circumstances that give rise to a reasonable excuse include where:
- the person bound by the order did not understand the obligations imposed by the order;
- the person reasonably believed that their actions constituting the contravention were necessary to protect the health and safety of a person – and the contravention did not last longer than was necessary.
The Family Court is given a wide discretion to determine a reasonable excuse and its decision is entirely dependent on the facts at hand.
“My child didn’t want to go” – is that a reasonable excuse?
A child’s unwillingness to spend time with the other parent is unlikely to satisfy the legislative requirements for a reasonable excuse. To meet the threshold, the parent must have reasonably believed that preventing the child’s contact with the other parent was necessary to protect their health and safety.
Failing that, both parties have a positive obligation to facilitate a child’s contact with the other parent if there are orders in place for such an arrangement.
Nygh J articulated this obligation in the case of Stevenson & Hughes  FamCA 14, stating:
“…there is an obligation cast upon the custodial parent to take reasonable steps to make the child available for access. It is not open to the custodial parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the Father or to discourage the child from remaining on the doorstep and, indeed, this situation is directly comparable to it. It is quite clear that such an approach is wrong and that the wife in this circumstance, clearly, was in breach of her obligations under the order.”
What can I do if someone has contravened parenting orders?
There are two ways to deal with a contravention of parenting orders.
You can apply to enforce previous parenting orders as part of an application in that case or you can make a separate contravention application against the other person.
It is important to seek legal advice before making a contravention application. An unsuccessful contravention application can result in a costs order being made against you, requiring payment of some or all of the other person’s legal costs incurred by the unsuccessful application.
What are the penalties for a contravention without reasonable excuse?
Division 13A of Part VII in the Family Law Act 1975 (Cth) gives the Family Court power to order various penalties in contravention proceedings regarding parenting orders.
Depending on the severity and type of contravention established, the Family Court may:
- vary the primary order;
- order attendance at a post separation parenting program;
- compensate for time lost with a child as a result of the contravention;
- require payment of a financial bond;
- order payment of some or all of the legal costs of the other parties;
- order payment of compensation for reasonable expenses incurred as a result of the contravention (for example, last minute childcare);
- require participation in community service;
- order payment of a fine;
- order a sentence of imprisonment.
If you would like to know how this applies to your situation, please call us now on (08) 6381 0208 or fill out this form to schedule your first 30-min free telephone appointment. Loukas Law are the leading family lawyers Perth clients can trust to help them build a future they can live with.