Where one parent is not following or has breached the parenting orders made by the Court, the other parent can file a contravention application.
What constitutes a breach of parenting orders?
Under the Family Law Act 1975, unless an order has been varied by consent, a person is taken to have contravened or breached an order if they:-
- intentionally failed to comply with an order; or
- made no reasonable attempt to comply with the order; or
- intentionally prevented compliance with the order by a person who is bound by it; or
- aided or abetted a contravention of the order by a person who is bound by it.
It is a requirement that parties participate in family dispute resolution (“mediation”) prior to filing an application with the Court. Negotiating a resolution by consent is a much cheaper and more efficient outcome than proceeding to Court. Filing a contravention application should only be a last resort when the parties to the order have been unable to resolve the problem by consent.
When filing your application, it is also necessary to file an affidavit setting out the ways in which the other parent has breached the parenting orders. You will also need to set out the remedies you are seeking in your application.
What will the Court do, once I file the contravention application?
After hearing the evidence, the Court may find that even though the orders were breached, the parent had a reasonable excuse for doing so, for example to protect the child from harm. The Court may also find that:-
- there was no contravention of the orders;
- there was a less serious contravention than the one alleged without a reasonable excuse; or
- there was a more serious contravention than the one alleged without a reasonable excuse.
What penalties apply for a breach of parenting orders?
The penalty imposed by the Court will depend on the severity of the breach. These can include:-
- a variation to the original court order;
- an order for make-up time with the child;
- an order that the parent complete a post-separation parenting program;
- an order that one parent pay some or all of the other parent’s legal costs;
- a fine;
- a period of imprisonment.
What should I do if my parenting order has been breached?
Before commencing legal proceedings it is important to speak to a solicitor about whether a contravention application is the best course of action for you.
Please do not hesitate to contact one of our local family law experts on 07 4963 2000 or via our online contact form if you believe your parenting order has been breached. We will be more than happy to assist.