If you have been through the process of obtaining Family Court orders in relation to parenting for your children, you expect that the Orders will be adhered to. Unfortunately that isn’t always the case.

Contravention of parenting orders under Family Law can happen at any time after the orders are made.

A contravention of court orders is when one party either intentionally fails to comply, or makes no reasonable attempt to comply, with the orders set out by the court.

With the focus being on restoring and preserving relationships with the children, filing a contravention application with the court may be the only way to get parenting arrangements back on track.

So that you understand how the law applies to your individual circumstances, you should seek legal advice before you begin a contravention application.

Before you can begin any child related proceedings in court, including a contravention application, you must attempt to reach a resolution through Family Dispute Resolution, also known as mediation. There are some exceptions to this requirement, including:

• Where one party has contravened and disregarded court orders that were made in the last 12 months
• If one party is unable to effectively participate in the mediation
• If the Court has reasonable grounds to believe that:
  o   There has been family violence or child abuse by a party
  o   There is a risk of violence by a party, or
  o   There is a risk of child abuse if there were to be a delay to allow for mediation

How to file a Contravention Application

If you decide to proceed with a contravention application with the Court, it is important that the alleged breaches are set out clearly in the Application. Our family law solicitors can assist you with preparing your contravention application so you can be confident that the application is done correctly.

Any alleged contraventions need to be specific; you must state exactly what the other party did, or did not do, which amounts to a breach of the orders. If there are multiple alleged breaches, each one should be addressed individually as separate incidents.

You will need to clearly articulate the details not only of how the court order has been breached but also that the other party has either intentionally failed to comply, or made no reasonable attempt to comply.

As part of the application you will also need to submit an affidavit, setting out the evidence in support of the contravention allegations.

Once you have filed your application with the Court you will receive a case number for your matter and be allocated a date for your hearing.

You must serve the documents on the other party so that they are aware of the contravention proceedings. Any person over the age of 18 can serve the documents, or you can arrange for a process server or the Sheriff of the Local Court.

In all cases, service of these documents must be done in person. If you are having difficulty serving the other party, contact our family lawyers for assistance arranging substituted service or for a location order.  

What happens in Court on the day of Hearing

On the hearing day the other party will be given the opportunity to explain the circumstances surrounding the alleged breach of orders. There may be valid reasons why a contravention has happened, which the Court will consider.

Reasonable excuses that the Court may consider are:

• The party didn’t understand the Court order
• The party believed that contravening the Court orders was necessary to protect the health or safety of a person including themselves or the child
• The contravention did not last any longer than necessary to protect the health or safety of the above person.

Some excuses that the court does not consider to be reasonable are:

• The child doesn’t want to spend time with the other party
• You do not agree with the other parties personal lifestyle of circumstances, for example, if they have a new partner
• You do not agree with the other parent’s style of parenting
• You do not agree with the court orders.

What are the possible outcomes after Court

Once your contravention application is heard, the Court will come to one of four conclusions:

• The alleged contravention was not proven
• The contravention was proven but there was a reasonable excuse
• There was a less serious contravention without a reasonable excuse
• There was  a serious contravention without a reasonable excuse

For the latter two conclusions the Court may impose a penalty on the party who breached the Court orders. Some penalties, depending on severity, may include:

• A parenting order compensating for the time the Applicant did not spend with the child
• Ordering the contravening party attend a parenting program
• Ordering the contravening party to pay some or all of the other Applicants legal costs for filing the Contravention Application
• Changing or suspending the original orders
• Ordering the contravening party to enter into a bond
• Ordering the contravening party to pay a fine
• Ordering the contravening party to partake in community service
• Ordering a prison sentence to the contravening party.

Are there any options other than going to Court?

If your orders are not working for you, or the other party, and you’re not able to adequately prove that there has been a contravention of the orders, then it may be time to revisit the orders. For example:

• The orders could be interpreted in more than one way
• The court orders do not have a practical application, for example, they do not contain details for pick up time and location
• The court orders are vague or rely on the parties agreeing to time spent

If this is the case with your orders, then considering alternatives to contravention proceedings may be more appropriate.

Family dispute resolution or mediation may be the most efficient method of coming to an agreement about varying your parenting orders. FDR is a more informal process and avoids the more lengthy and costly option of going to court.

If you have already attended FDR and have not been able to reach a resolution, you may make an application to the Court to vary the existing orders. In order for a variation to be considered by the Court you will need to prove that there has been a significant change in circumstances that makes the current arrangement inappropriate or unworkable.  These applications are often difficult to progress and rarely succeed. Our family law solicitors will be able to advise you whether your current circumstances warrant an application to vary existing orders.

If you have entered into a parenting plan subsequent to the court orders, then a breach of the orders may not have occurred. The Court can’t enforce a parenting plan.

If you are having difficulty with your parenting plan being followed, contact our family law solicitors for advice about what steps can be taken.