Parenting orders are orders made by the Federal Circuit and Family Court that set out the parenting arrangements for a child.
They’re governed by the Family Law Act 1975 (the Family Law Act), and are typically made when a couple’s relationship has broken down to make sure that the children of that relationship are cared for in a way that’s in their best interests.
Parenting orders (also known as parenting arrangements) will often cover things like who the child will primarily live with, how much time they’ll spend with each parent (and others, such as grandparents), how the child will communicate with the parents, who is responsible for payments of school fees (and orders for child support), other costs, and any other aspect that might affect the care or welfare of the child.
Once an order is made, the parties to the order (generally both parents) must follow it precisely. In other words, they must do everything the parenting order says. However, sometimes, for one reason or another, one parent does not.
This is known as ‘contravention’ or breach of parenting orders. So, what happens if you breach a parenting order? What about if your ex does? What are your rights and obligations?
What is contravention of a parenting order?
Under the Family Law Act, a person who is a party to the order will be considered to have contravened a parenting order if they intentionally fail to follow the order or make no reasonable attempt to comply with the order.
A person who is not a party to the order might also contravene it. For example, a stepparent can contravene an order if they intentionally prevent a parent from complying with the order or aid them in not complying.
Common reasons for a breach of parenting orders
There are many reasons that someone might breach a parenting order. Some of these are intentional, and some are not.
Miscommunication
For example, one parent believes they’re meant to pick up the kids on Saturday, when it’s actually meant to be on Friday.
Lack of understanding of the terms of the order
Sometimes parenting orders can be complicated. It’s a good idea to get advice if you’re not sure.
Emergencies or unforeseen circumstances
Emergencies might mean that one parent needs to keep the children during the other parent’s time. This happened in lockdowns during the pandemic, for example.
Deliberate defiance
Sometimes one parent just doesn’t want to follow the orders, so they don’t. This is deliberate contravention.
Children’s preferences or resistance
Occasionally a child—particularly an older child—might express a preference that goes against the parenting order. For example, they might have a fight with one parent and want to stay with the other even when it’s not in the agreement.
Logistical issues
Things like traffic delays, car breakdowns, or travel disruptions can sometimes lead to accidental or unintentional breaches.
Cultural or religious commitments
It’s always a good idea to get cultural and religious observances set out in a parenting order. If not, one parent may feel pressure to prioritise that observance over a parenting schedule.
External influences
Sometimes there can be pressure or interference from family, new partners, or even friends that might cause one party to breach the order.
Reasonable excuses for the contravention of orders
As we’ve seen, there may be many reasons that a parenting order may be breached. But only some of these will be considered reasonable excuses. Under the Family Law Act, a person may have a reasonable excuse for contravening an order; however, they don’t provide examples of those excuses.
Case law does give us some ideas of what might be considered reasonable, including if:
The breach is due to a lack of understanding
One reasonable excuse is if at the time the party breached the order, they didn’t understand the obligations that were imposed by the order. An example of this might be where the orders were made in the absence of the other parent.
The breach is necessary to protect someone
The second reasonable excuse is where the breach was necessary to protect the health or safety of another person, whether the child or someone else. In this case, for the contravention to be called reasonable, the period of time where the breach was occurring can’t be longer than is necessary to protect the health and safety of that person.
What to do if a party contravenes a parenting order
If you believe that someone has contravened a parenting order without a reasonable excuse, you can consider filing a contravention application with the Federal Circuit and Family Court.
Contravention applications are quasi-criminal in nature, so they need to be carefully considered, drafted precisely, and extremely detailed. The person bringing the application must prove that the breaching party (the respondent) knew of their obligations under the order but breached them anyway.
Steps to take if parenting orders are breached
If parenting orders are breached, there are steps to take even if you aren’t ready to file a contravention application.
- Always document everything. Keep detailed records of every incident so you can include these details in a contravention application if and when it’s needed.
- Attempt to resolve the issue amicably. Resolving the issues outside of Court is less expensive and less upsetting for the family as a whole.
- Attend mediation. The Court will require this step before hearing the issue in the Court.
- File a contravention order. This is your final step and it’s vital that you get help from a family law expert if you do reach this stage.
How to file a contravention application
- Get legal advice first.
- Lodge an application filing by submitting an Application – Contravention via email to contraventionlist@fcfcoa.gov.au.
- With the application, you must also submit:
- An affidavit setting out the facts in support of the application.
- A copy of the parenting order.
- A section 60I certificate showing that you’ve attempted family dispute resolution or an exemption to this requirement.
- Pay the filing fee.
- Serve the application, affidavit, and copy of the parenting order on the other party.
Defending against a contravention application
Once the Federal Circuit and Family Court has received the application, it will set up a hearing where it will hear the facts of the matter and then determine whether a breach did occur.
If you’ve been served with a contravention application, you must respond within the timeframe set out by the Federal Circuit and Family Court. In most cases, your lawyer will advise you to not file an affidavit in response to the contravention application until a hearing and after the contravention is proved.
Legal consequences of contravening parenting orders
If a person is found to have contravened a parenting order without reasonable excuse, the Federal Circuit and Family Court can order a number of different remedies. They may:
- Issue a warning or reprimand.
- Put additional conditions or orders in place to make sure that the party complies in the future.
- Order compensatory make up time for the parent who lost time with the child.
- Impose a fine.
- Order community service.
- Require the breaching party to attend counseling or parenting programs.
- Order the breaching party to pay the applicant’s legal costs.
- In the case of serious or continuing breaches, make a change to the existing parenting orders or arrangements.
- Order that the breaching party be imprisoned for up to one year.
FAQs about contravening parenting orders in Australia
What happens if I accidentally breach a parenting order?
Nothing happens unless another person decides to file a contravention application or otherwise approach the Federal Circuit and Family Court about the breach. Before they can do this, however, they’ll need to offer you the opportunity to attend mediation or another form of family dispute resolution (save for in limited circumstances). Here you can explain your position and try to come to an agreement to avoid court proceedings.
Can I change parenting orders if circumstances change?
The Federal Circuit and Family Court is typically reluctant to change final parenting orders. You will need to show that there has been a significant change in circumstances before proceeding to make an Application to Vary Final Parenting Orders, and the Court won’t make any changes unless they’re in the best interests of the child.
A significant change might be if the other parent is seeking to relocate with the children or if there is abuse.
Do I need a lawyer to file a contravention application?
It’s not a requirement that you have a lawyer to file an Application – Contravention. However, the Federal Circuit and Family Court advise that you should obtain legal advice before doing so.
A lawyer can help explain how the law applies to your unique situation, help you complete all the forms, and lodge the application itself.
We can help!
If you believe that your parenting orders have been breached by another person, or you need to defend against an application for a breach, get in touch with our friendly team.
