Contravention of Parenting Orders

Unfortunately, Parenting Orders are not the end of the matter for some parties and may require a contravention.

A parent contravenes Parenting Orders when:

• He or she fails to comply with the Parenting Orders.
• He or she takes action that prevents the other parent from spending time with the children in accordance with the Parenting Orders.

The Family Law Act 1975 sets out different categories of contraventions. Each category carries a different penalty.

Excuses for contravention of Parenting Orders

If a contravention has occurred, the Court considers whether there is a reasonable excuse for the contravention. This may be because:

1. At the time of the contravention the party did not understand the obligations imposed by the Parenting Orders and the Court considers it reasonable that they be excused; or
2. The person has reasonable grounds to believe that a contravention of the Parenting Order was necessary to protect the health and safety of a child and the contravention did not last longer than necessary.

Contravention of Parenting Orders categories

The different categories of contraventions that the Court considers are as follows:

• One party alleges a contravention but is unable to prove.
• A contravention is proved but there is a reasonable excuse.
• There has been a less serious contravention but there is no reasonable excuse.
• There has been a serious contravention and there is no reasonable excuse.

Depending upon the nature of the contravention and whether there is an excuse, penalties imposed by the Court can range from nothing, a requirement to attend a parenting program, legal costs, fines, a community service Order or in the most serious of cases, imprisonment.

An example of a serious contravention and a resultant Order for imprisonment is set out in the 2003 case of B & W heard in the Federal Magistrates Court. The Mother was ultimately imprisoned for 7 months for continuously failing to comply with the Parenting Order.

Remedies for contravention range from enforcement of the Parenting Order to imprisonment.

Practical Tips

• Not agreeing with the other parent’s style of parenting or lifestyle is not a sufficient ground to contravene Parenting Orders. There must be an exceptional reason and one that is not contemplated by the Orders.
• If the other parent is repeatedly failing to comply with the Parenting Orders, you should seek legal advice in respect of making a contravention application.
• If possible, counselling is always the preferred option to try and reach a resolution. Legal costs are a factor if you decide to make a Court Application, as is improving your relationship with the other parent.
• Seek legal advice prior to filing your application for contravention to assess whether compliance with the pre-action Family Dispute Resolution process is required prior to filing a Court Application.
• Document any contraventions by sending a letter or email to the other party contemporaneous with the contravention. These communications can be attached to your Court Application if necessary as proof of the contraventions.

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