How the Family Law Court establishes a contravention of a parenting order

Date: Dec 01, 2011
Document Type: Newsletter

When parenting orders are issued by the Family Law Court, there is an expectation that all parties observe the orders relating to:

  • where the child lives;
  • how the child spends time with another person or persons;
  • how parental responsibility is allocated; and any other aspect of the care, welfare, or development of the child, or any other aspect of parental responsibility for the child.

If a person contravenes an order by acting illegally or by breaching the order intentionally, or the person has made no reasonable attempt to comply with the order, they can then be found to be in contravention of the order, and in such a circumstance the order can be varied or they can make a contravention application.

What are the actions that may be seen to be a contravention of a parenting order?

Under s 70NAC(a) of the Family Law Act (the FLA), a person contravenes an order that is binding, if they intentionally fail, or made no reasonable attempt to comply with the order.

Additionally, a person must also not:

  • intentionally prevent compliance with the order by a person who is bound by it;
  • aid or abet a contravention of the order by a person who is bound by it;
  • remove a child from the care of a person;
  • refuse or fail to deliver, or return the child to a person;
  • interfere with the exercise or performance of any powers, duties or responsibilities the person has under the order;
  • hinder or prevent a person and the child from spending time together in accordance with the order;
  • hinder or prevent a person and the child from communicating with each other in accordance with the order;
  • interfere with the communication that a person and the child are supposed to have with each other under the order;
  • interfere with a person and the child benefiting from spending time with each other under the order.

What is considered as a reasonable excuse for the contravention of a parenting order?

The Court will consider a person (respondent) to have a reasonable excuse for contravening an order if:

  • the respondent contravened, or substantially contravened the order because he or she did not at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
  • the court is satisfied that the respondent ought to be excused in respect of the contravention.

If the Court makes the decision that a person had a lack of understanding of the obligations imposed under the order, it is then the duty of the Court to explain to the person in terms which are understandable the duties and obligations of the order, as well as making the person aware of the consequences that will arise if another contravention occurs.

The Court under s 70NAE(4)-(7) of the FLA, will also consider that if a person had believed on reasonable grounds that the contravening of the order was to protect the health or safety of the child, or someone else and the contravening action did not last longer than considered necessary, the Court may also consider the contravention as a reasonable excuse.

What are the categories of contravention?

Contraventions are divided into four categories, and depending on the contravention, the Court can specify the remedy or action that can be undertaken.

Contravention alleged but not established (Subdivision C): the Court may order the person who has bought proceedings, to pay some, or all, of the other person’s costs.

Contravention established but reasonable excuse for contravention (Subdivision D): if the Court has found that a contravention of an order was established, but there was a reasonable excuse for the contravention, then an order can be made to compensate the person for the time that they did not spend with the child, or oblige the party who is in contravention, to pay some or all of the costs of the other party.

Less serious contravention established without reasonable excuse (Subdivision E): in circumstances where the Court has considered a contravention to be less serious, it may issue an order that can include some, or all of the following directions:

  • the party who committed the contravention is to attend a post-separation parenting program;
  • make a further parenting order that compensates the person for the time that they did not spend with the child;
  • allow the parties to make an application to vary orders;
  • require the person to enter into a bond;
  • make an order for compensation for any costs incurred as a result of the contravention (eg. travel expenses);
  • require the person to pay some or all of the other party’s costs.

More serious contravention established without reasonable excuse (Subdivision F): if a party displays a serious disregard for their obligations under the order through their behaviour and a serious contravention has been established, the Court must then make an order to the contravening party to pay all of the other party’s costs.

Furthermore, the Court may:

  • subject the person to a community service order;
  • require the contravening party to enter into a bond;
  • make a parenting order that compensates the person for the time that they did not spend with the child;
  • order the person to pay a fine;
  • sentence the person for up to 12 months imprisonment;
  • make an order for compensation for any costs incurred as a result of the contravention;
  • order the person to pay some or all of the other party’s costs.

What effect does a contravention allegation have on a parenting plan?

If an allegation, or a contravention of a parenting plan does arise, the Court must have a regard to the terms of any subsequent parenting plan that deals with matters contained within the order for as long as the contravening actions have occurred, and while the plan was in force. 

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