Contravention of Parenting Orders
In Australia, a contravention of parenting orders occurs when a person fails to comply with the terms of a parenting order made by the Federal Circuit and Family Court of Australia without a reasonable excuse.
What are parenting orders?
Parenting orders are legally binding court orders that outline arrangements for children after separation or divorce. These orders can cover:
- Who the child lives with
- How much time the child spends with each parent or other people
- How parental responsibility is shared
- Communication with the child
- Other aspects related to the care and welfare of the child
They may be made by consent (agreed upon by both parties and then formalised by the court) or decided by a judge after a hearing.
Are parenting orders and consent orders the same?
Parenting orders and consent orders are related but not exactly the same:
- Parenting orders are court orders that set out arrangements for a child ( where a child lives, time with each parent, decision-making).
- Consent orders are a type of parenting order made when both parties agree on parenting arrangements and ask the court to make them legally binding without going to trial. They can be made after a court hearing or by agreement, and can also outline financial matters and property settlement.
Both have the same legal effect once made by the court. Breaching either is a contravention of a court order.
How long are parenting orders valid for?
Parenting orders in Australia are legally binding until:
- The child turns 18,
- They are changed or cancelled by the court, or
- They are replaced by a new agreement or order (such as a new consent order).
Even if circumstances change, the original parenting order remains enforceable unless formally varied by the court. Informal agreements between parents do not override a court order unless they are turned into a new court order.
What is a breach of parenting orders?
A breach of parenting orders occurs when a person does not follow the terms of a legally binding parenting order made by a court, without a reasonable excuse. This includes failing to return a child on time, denying access or not allowing communication. It is also called a contravention and can lead to legal consequences, such as make-up time, fines, or, in serious cases, imprisonment.
What constitutes a contravention of parenting orders?
A contravention occurs when reasonable steps are not taken to comply with parenting orders. This occurs when one parent:
- Fails to comply with the order
- Makes no reasonable attempt to comply
- Intentionally prevents compliance (one parent stops the child from seeing the other parent)
- Aids or abets someone else in breaching the order
What is the difference between a breach and a contravention?
In parenting matters, a breach occurs when a person who is bound by a legally enforceable parenting order fails to comply. A contravention refers to a breach being formally addressed through contravention proceedings. To prove a contravention, the alleging party must establish, beyond a reasonable doubt, that the breach occurred without reasonable excuse.
If proven, the court considers imposing penalties, which may include orders to pay compensation for time lost, legal costs, or, in serious cases, a prison sentence. The respondent is believed to have contravened and may be required to attend a post-separation parenting program or family counselling.
What is considered a reasonable excuse for the contravening party?
The Family Law Act 1975 provides for a “reasonable excuse” for an alleged contravention in some situations. We’ll look at some of the reasonable grounds below, but it’s essential to seek legal advice specific to your matter, because how the courts decide if one party has a reasonable excuse for contravening may vary depending on a number of factors.
The incident was unavoidable, a one-off, or would have been difficult to avoid.
A contravention is when someone intentionally fails to meet their obligations under their parenting orders. At times, it may be impossible to meet an order, or difficult, which the courts would not see as a contravention. This may occur when someone is sick, has an emergency or natural disaster to deal with, or has a valid reason for why it was difficult to meet obligations at the time.
This may be something like being unable to facilitate a child to communicate with the other parent because a sporting event took place at the same time, or if the child was feeling unwell. It could also be if someone is stuck in traffic and cannot make a pick-up or drop-off time. The court makes decisions based on whether it feels the contravention was avoidable, and if it wasn’t, a contravention is unlikely to be imposed.
The person did not understand the obligations of the order.
If someone was unable to receive legal advice when the orders were made, has an intellectual disability, or speaks English as a second language, consideration may be given to their inability to meet their legal obligations. If the respondent believed they were following orders or were not aware of the orders, a contravention application may not be successful.
The contravention was necessary to protect the health or safety of a person (often the child or the parent).
If a parent needs to leave due to domestic violence or suspects abuse is occurring, the court will take into account why a child was not being returned to the other party. In matters like this, it’s important for the parent to seek legal advice regarding existing orders, to ensure they are abiding by them, or have reasonable evidence that it was not in the child’s best interests.
An urgent hearing can be requested by a parent in this situation to change the parenting orders, based on the seriousness of the safety concerns, and also to avoid a contravention being made against them. The court will assess whether the excuse was valid based on the circumstances.
Consequences of contravention proceedings
If the court finds there was no reasonable excuse to breach the order, it may impose penalties depending on the severity and frequency of the breach.
These can include:
- Make-up time with the child
- Participation in a parenting program
- Fines
- Community service
- Compensation for lost time or expenses
- Imprisonment (in the most serious or repeated cases)
The aim is generally to encourage compliance, not to punish the other parent, especially when it’s in the child’s best interests.
Is a contravention application the same as an enforcement order?
No. A contravention application alleges a breach of parenting orders without reasonable excuse, while an enforcement order seeks to enforce existing obligations imposed by a parenting order. Both may result in serious consequences, including further parenting orders or penalties.
What is a recovery order?
A recovery order is made by the court to locate and return a child to a parent or person entitled to spend time with them under a parenting order. If the child’s whereabouts are unknown, it may be issued alongside a location order.
Is a contravention an urgent matter?
It can be, particularly if the result of the contravention risks the child’s welfare or prevents a parent from spending court-ordered time with the child. Urgency depends on the serious consequences of the breach and any criminal matters involved.
What is a location order?
A location order directs agencies, such as those under the Attorney-General’s Department, to provide information about a child’s location when they are missing or withheld from a person entitled to spend time with them under a parenting order.
How do you apply for a contravention order?
You must complete the relevant court forms, including an affidavit, and file them with the Federal Circuit and Family Court of Australia. Include further information supporting your claim that the other party breached obligations imposed by a parenting order without reasonable excuse.
Step 1: Complete the required forms
- Fill Out An Application For A Contravention: This form initiates the contravention application.
- Provide An Affidavit: This is a sworn statement detailing the facts supporting your claim of a breach.
- Provide A Certificate or Affidavit Regarding Family Dispute Resolution: If applicable, include a 60I certificate from a registered family dispute resolution practitioner or an affidavit explaining why this certificate is not filed.
- Submit A Copy of Parenting Orders: Attach a copy of the existing parenting orders that are alleged to have been contravened.
Step 2: File Your application
Contravention orders work somewhat differently from other parenting matters, and applications are submitted via email rather than through the Commonwealth Courts Portal.
- Email Submission: Send your completed forms and supporting documents to contraventionlist@fcfcoa.gov.au.
Step 3: Prepare & file an affidavit
- Affidavit Requirements: Your affidavit should set out facts, not opinions, and must be sworn or affirmed to be true.
- Filing the Affidavit: Once completed, your affidavit should be filed electronically using eLodgment or at a Court registry if eFiling is not practicable.
What are the costs involved with a contravention application?
Unlike parenting and consent orders, contravention applications do not charge a fee.
- No Filing Fee: There is no fee to lodge a contravention application.
Other costs may include court filing fees, legal representation and potential orders to pay compensation or legal costs if found in breach. The court may also order attendance at a family dispute resolution practitioner or post-separation parenting program.
How do you respond to a contravention order?
The respondent must file a Response to the Initiating Application and an affidavit, outlining their version of events. If they had a reasonable excuse for the alleged breach, it must meet the same standard of proof applied in criminal matters.
How long does it take for the courts to hear and assess a contravention application?
Timeframes vary by case and court availability. Urgent matters may be prioritised, but standard contravention hearings can take several months. Delays can occur if further parenting orders, subsequent parenting plans, or further information are required before resolution.
Legal process for contravention proceedings
If you are considering a suspected contravention, it’s important to note that the applicant bears the burden of proof. If the respondent raises a reasonable excuse, the court must consider whether it is clearly believable and strong enough to justify the breach under that high standard.
1 – An application is filed
The affected party usually files a Contravention Application in the Federal Circuit and Family Court of Australia.
2 – The respondent replies
The respondent files a response and affidavit, explaining their version of events and any reasonable excuse for the alleged breach.
3 – The Judge reviews the application
The alleging party (the applicant) must present evidence and prove that the obligations imposed by the parenting order were not followed. The court considers whether the breach meets the same standard of proof required in criminal matters, beyond a reasonable doubt.
4 – The court hears both sides
Each party (or their lawyer) can:
- Present arguments
- Cross-examine witnesses
- Respond to the other side’s evidence
- The court may also refer parties to family counselling or a family dispute resolution practitioner if appropriate.
5 – If no contravention is found
If the respondent had a reasonable excuse, the court may dismiss the application. No penalties will be applied, but the court may make subsequent parenting plans or recommendations to prevent future issues.
6 – If a contravention is found
If the court finds a contravention without reasonable excuse, it may:
- Issue a further parenting order
- Order the time lost with a child be made up
- Impose a fine, require the party to pay compensation or legal costs
- Refer the matter to the police if there are serious consequences
- In very serious cases, impose a prison sentence
If you or someone you know is facing or dealing with a contravention issue, it’s recommended to seek legal advice, especially because the legal and factual details in family law can be complex.
Final thoughts
Understanding your rights and responsibilities around parenting orders is crucial, especially when facing or filing a contravention application. It’s important to note that a contravention application focuses on whether a person breached a parenting order without reasonable excuse, while an enforcement order is used to ensure a person complies with the obligations imposed by the original court order moving forward.
Some matters, particularly where the safety or wellbeing of a child is at risk, may be treated as urgent. In such cases, the court can fast-track proceedings and issue recovery or location orders if necessary.
Need help with a contravention or complex parenting matter?
Our family lawyers help you understand your rights and responsibilities under the Family Law Act. Whether you are involved in a parenting dispute or dealing with a possible parenting order contravention, our team are ready to provide clarity around your legal options and assisting you with your next steps.