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It can be very stressful when a former partner doesn’t stick to the provisions of a parenting order. It can lead to a lot of uncertainty, which makes it difficult to provide a calm and supportive environment that helps your child thrive. If you find yourself in this situation, there are options available.
Key takeaways
A breach is where one party fails to meet their obligations under a court order.
A parent may avoid penalties if there’s a reasonable excuse for the contravention.
You may resolve the breach through dispute resolution or court proceedings.
The Court may impose penalties of varying severity, depending on the case.
A family lawyer may help you find an appropriate solution and avoid common mistakes.
What counts as a breach of a parenting order?
Parenting orders set out each party’s legally binding parental responsibilities and living arrangements for the child. A breach happens when a party fails to make reasonable attempts to obey the obligations imposed by the order. Examples of a breach could include:
Routinely failing to have the child ready to be picked up at the scheduled time.
Refusing to allow the other party to communicate with the child at prearranged times.
Not complying with changeover provisions for special occasions like birthdays and Christmas.
Failing to take reasonable steps to encourage the child to spend time with the other parent in line with the order.
Reasonable excuses the Court may consider
The burden is on an aggrieved party to demonstrate that a breach has occurred. The contravening party may be able to avoid penalties for a breach if they have a reasonable excuse for contravening the order. The Family Law Act 1975 provides some excuses that may be accepted at the Court’s discretion, such as:
Not understanding the obligations imposed by the order. A genuine misunderstanding over a convoluted provision could be an acceptable excuse.
Reasonably expecting that following one of the order’s requirements is going to put the safety of the child or another party at risk. This excuse is only relevant to the period where the risk is present. It doesn’t give a parent unlimited permission to ignore the order.
Even if the Federal Circuit and Family Court of Australia (FCFCOA) accepts an excuse, it won’t necessarily just let the situation go. Depending on the circumstances, the Court may vary the order to prevent the breach from happening again.
Your options if your ex won't comply
You have different options if you’re dealing with multiple parenting order contraventions. Here are some avenues you can consider.
Family dispute resolution (FDR)
Instead of immediately approaching the FCFCOA, it may be worth reaching out to your former partner to resolve the issue amicably. If they’re having difficulty with the existing parenting arrangements, there may be an alternative plan that works better for both of you.
Structured sessions with an FDR practitioner can help parties explore conflicts and create practical strategies to overcome them. This can help you avoid the stress and expense of going to court. If you agree to a new arrangement, you can apply for a consent order or enter into a parenting plan that addresses the issue.
Apply for a contravention order
Court orders are legally enforceable. A contravention order asks the Court to impose a punishment or other consequence for a breach.
You generally have to pursue FDR before seeking a contravention order. You may be exempt from this step if there are domestic violence concerns that would impact your safety during the process, or if the other parent refuses participate. You may need to submit an affidavit that explains why an exemption should apply.
How a contravention application works
Contravention proceedings can lead to serious consequences, and the Court may apply penalties in the most serious cases. The FCFCOA has the ability to apply serious consequences for an alleged contravention, depending on the circumstances. The documents the applicant must submit to the Court include:
Application – Contravention
An affidavit explaining the facts of the case that allow the Court to make a decision.
A certificate from a registered FDR practitioner or an Affidavit – non-filing of family dispute resolution certificate.
A copy of the parenting order.
Potential court actions
The FCFCOA has the ability to impose a range of consequences for the breach of an order. These include:
Requiring the respondent to attend a post separation parenting program.
Varying or setting aside the parenting order.
Making a further parenting order that compensates the applicant for lost time with the child.
Ordering the respondent to pay compensation for reasonable expenses caused by the breach, such as legal costs.
In more serious cases, the Court may sentence the respondent to pay a fine or serve a term of imprisonment.
Getting help with a parenting order breach
Contravention orders can be complicated. Seeking legal advice from an experienced family lawyer can help you avoid mistakes and find a suitable solution to the matter. FDR can provide crucial opportunities to finding agreement on more workable arrangements. However, court proceedings may be necessary if you have unresolvable differences.
Do you need help with a contravention of parenting orders?
Ferrall and Co. Lawyers has been assisting parents enforce parenting arrangements since 2017. Contact us today for a free consultation to discuss your case.
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