What is a breach?
A breach (or contravention) of a parenting order occurs when a party to an Order:
- intentionally fails to comply with the order; or
- makes no reasonable attempt to comply with the order; or
- intentionally prevents someone else from complying with the order; or
- helps someone else from complying with the order.
What do I do if I think someone has breached the orders?
If you think someone is breaching parenting orders, the best first step is to politely raise the issue with them. The ‘breach’ could be a simple miscommunication or misunderstanding.
If it is a recurring issue, another option before engaging lawyers is attending Family Dispute Resolution (FDR), which may be able to help you come to an agreement about the best way to navigate the orders. FDR is also required if you want to make a contravention application (unless an exemption applies).
A further alternative is that you contact your lawyer to discuss additional options, such as issuing proceedings in the Federal Circuit and Family Court of Australia for a contravention/breach.
What are the consequences of a breach?
There are four potential outcomes that can arise from a contravention hearing:
- the alleged breach is not established;
- the breach is established but there is a reasonable excuse;
- a less serious breach is established and there is no reasonable excuse; or
- a serious breach is established and there is no reasonable excuse.
At any point during the contravention hearing the court can also vary the original parenting orders.
If the alleged breach is not established or if the breach is established but there is a reasonable excuse then there are no penalties the court can impose.
If a breach is established and there is no reasonable excuse, the court may impose a range of penalties that depend on the circumstances and the seriousness of the breach. When determining the penalties, the emphasis remains on what arrangements are in your child’s or children’s best interests.
For a breach of a less serious nature, the court may decide to any or all of the following:
- vary the primary orders;
- order the party in breach to attend a post separation parenting program;
- compensate for time not spent with the child as a result of the contravention;
- adjourn the matter to allow either party to apply for a further parenting orders;
- order the party in breach to enter into a bond;
- order the party in breach to pay all or some of the legal costs of the other parties; or
- order the party in breach to compensate the other party for reasonable expenses lost as a result of the contravention.
For a breach of a serious nature, in addition to the above list, the court may:
- require the party in breach to participate in community service;
- order the party in breach to pay a fine; or
- order the party in breach to a sentence of imprisonment.
If you are concerned that you may have breached parenting orders or if you think your ex-partner has breached parenting orders please do not hesitate to contact us for detailed legal advice.
Article By: Natalie Pogson
Throughout her time at University, Natalie volunteered at several Community Legal Centres. This developed her client-focused approach and strong passion for using the law to help people.
Natalie understands how complex and confusing the Family Law system is to navigate. She is here to help guide people through a stressful time and achieve positive outcomes.