Children and Parenting Matters – Orders

When a parenting order is made by the court, all affected people are legally bound to comply with it. If your former spouse or partner contravenes a parenting order, you should seek legal advice that will help you understand your rights and responsibilities. A Taylor & Scott Family Law professional can analyse your situation, explain how the law applies in your case and help you reach an agreement without having to go to court.

How is a parenting order breached?

According to Australian Family Law related to children and parenting matters, a person can breach a parenting order in several ways:

  • Intentionally failing to comply with the order;
  • Making no reasonable attempt to comply with the order;
  • Intentionally preventing compliance with the order by a person who is bound by it;
  • Aiding or abetting a contravention of the order by a person who is bound by it.

The only defence to contravening a parenting order is a “reasonable excuse”.  If a party is found to have contravened a parenting order that party may then seek to argue he or she had a reasonable excuse for the contravention.  The most obvious “reasonable excuse” is consent of the other party.  For example, a child did not spend time with a parent pursuant to court orders because both parties agreed to alter the arrangement. The reasonableness of a decision to breach court orders, however, is a highly technical issue which you should discuss with a Taylor & Scott lawyer.

What happens if a parenting order is breached?

If you believe the child’s other parent is in breach of a parenting order you can attempt to resolve the conflict independently. If this isn’t possible, the conflict may be resolved through counselling, mediation, negotiation, or, in the worst-case, litigation. An accredited Taylor & Scott Family Lawyer can represent you and advise on how the Court would determine the child’s best interests, providing the best chance of a solution via negotiation or mediation.

If your former partner continues to disregard a parenting order, you can apply to the court with an allegation that the parenting order has been contravened (broken). The ‘best interests of the child’ is the highest priority in children and parenting matters, with breaches of parenting orders taken very seriously. Every situation is unique, and a breach of a parenting order may result in referral to a parenting program, a fine, compensation or even jail time.

Parenting Disputes - Decide who Child Lives With

How can you file a breach of a parenting order?

Before filing a contravention application you should be confident that you will be able to prove the contravention alleged.  Contraventions are quasi-criminal proceedings and therefore, are very technical in nature.  The Court requires meticulous drafting of a contravention application. It is strongly recommended that you seek assistance from your Taylor & Scott representative.

The following questions should be asked when considering filing a contravention application: Firstly, ask yourself the following questions.

  • Have I obtained a copy of my court orders?
  • Do I need to attend family dispute resolution?
  • Are my court orders, including dates and times, clear?
  • Is the respondent aware of the parenting orders?
  • Should I file an application to vary the court orders instead?
  • Have I done anything that contributed to the breach of court orders?

If you wish to pursue the allegation you are required to:

1: Complete an ‘Application – Contravention’ form and attach a copy of the parenting orders.

2: Complete an affidavit in relation to the application, including supporting evidence.

3: Include a section 60i Certificate from a Family Dispute Resolution provider if applicable.

The documents can be filed in person or posted to the nearest Family Courts Registry.  The documents must be served personally on the respondent.

Do I need to attend court if I file a breach of a parenting order?

Both parents (or guardians) are required to attend court for the hearing. You will need to be fully prepared to answer any questions asked by the Judicial Officer, so you should have a summary of your case on hand, including a timeline of events related to the breach of  the parenting order.

If you are alleged to have breached an order, you should seek legal advice immediately.  You have the right to silence in contravention proceedings against you.  You should prepare an affidavit to take to Court, unsworn and unsealed, to file in case the Judge establishes you contravened the order.  At that point, you may seek to file the affidavit and rely upon it in establishing a reasonable excuse.

Although breaches of parenting orders aren’t uncommon, the experience can be harrowing for people unaccustomed to court proceedings. Your Taylor & Scott Lawyer will negotiate, mediate, and do everything in their power to avoid the need to go to court, but if strong representation and sure guidance is required to get you through proceedings, we are ready to support you all the way.

At Taylor & Scott, We Care For You.