There are many ways in which a parenting order can be breached.
The most common situation that arises is where there is an order that provides for one parent to spend time with a child and the other parent does not make the child available. This is an issue being raised quite a lot at the moment amid the current coronavirus pandemic, particularly where one parent is concerned that allowing time may expose a child to the risk of infection. In late March 2020, the Chief Justice of the Family Court released a statement to give guidance to parents during the coronavirus pandemic. The overarching principle, as always, is that parents should act in the best interests of their children, ensuring their safety and wellbeing. In the statement, the Chief Justice made it clear that parents are expected to comply with Court orders in relation to parenting arrangements, including facilitating spend time with arrangements. There are however some cases, where it may not be possible to comply with a parenting order. For example, where contact is supposed to take place at a contact centre and that contact centre is now closed. In those cases, parents are asked to communicate with each other to see if they can reach a practical solution to the problem. In the case of a contact service being closed and where an alternative supervisor cannot be sourced, the next best temporary solution may be to negotiate non-face to face contact through Zoom, Skype or other similar platforms.
Another example of a possible breach of orders is where there is a restraint in the parenting order and one party is alleged to have failed to comply with that restraint. For example, where there has been a concern about a parent or parents drinking too much alcohol and the effect that may have on their parenting capacity, the orders might restrain one or both parents from consuming alcohol to excess when the child is in their care. Another example of a restraint in orders is a restraint on one or both parents from taking the child to a psychologist without the other parent’s consent.
A third example where it may be suggested a parent has breached a parenting order is where a parent is alleged to have contravened an order for equal shared parental responsibility. The vast majority of parenting orders include a provision giving each party equal shared parental responsibility. The effect of this order is that neither party can make decisions in relation to the long term care, welfare and development of a child without the consent of the other parent. Examples of the types of decisions this order would cover include what school a child goes to, major medical decisions such as elective surgery and what religion a child practices. So for instance, if a parent enrols a child in a school without the consent of the other parent, it may be that the enrolling parent has breached the parenting order.
The examples I have given are perhaps the common scenarios that arise but that list is not exhaustive.
When it is alleged a parent has contravened a parenting order, the most obvious course of action is to file a Contravention Application but this is not always the best course of action.
As with any application for parenting orders, there is a requirement under the Family Law Act for parties to attempt mediation and obtain a section 60I certificate. The major exceptions to this requirement are where there has been family violence or there is a risk of family violence, where the application is urgent or where the application relates to a contravention of court orders which are less than 12 months old and there are reasonable grounds to believe that the respondent has shown a serious disregard for their obligations under the orders.
Before any Contravention Application is filed it is important to carefully consider the following questions:
- What outcome does the parent who alleges that the other parent has contravened the orders want to achieve? Is their desired outcome to simply have the orders complied with or do they want something else?;
- Is the application likely to be successful? and
- Is the application commercially viable?
Looking at that first point, what for example does the parent who has been denied time with the child under the orders want? Do they want to make up time or do they want something else? Perhaps they may want the parenting order to be varied to give them more time with the child or to vary the changeover arrangements. In the example, I gave about a child being enrolled in a school without that parent’s consent if parents are unable to agree about what school the child should attend perhaps the appropriate course is to make an application to the court for an order that the child attend a particular school.
Knowing what the desired outcome is will help to determine what the appropriate course of action should be.
If the desired outcome is a variation of the parenting order, then it may be more appropriate to simply file an application to vary the orders instead of a Contravention Application.
If the non-offending party just wants the orders complied with, then consideration should be given to the likely success of a Contravention Application and the commercial viability of making an application.
For example, a parent who has been denied court-ordered telephone contact on one occasion might be better off negotiating a make up telephone call instead of racing off to court and filing a Contravention Application.
Under the Family Law Act, a person will have contravened an order:
- Where a person is bound by an order, they have intentionally failed to comply with the order or made no reasonable attempt to comply with the order; or
- Where a person has intentionally prevented compliance with the order by a person who is bound by it or has aided or abetted a contravention of an order by a person who is bound the order.
The standard of proof that an applicant must meet is the balance of probabilities, except where a serious sanction is sought such as a bond, community service order, major fine or prison. In those circumstances, the contravention must be established beyond reasonable doubt which is a higher standard of proof.
In every case, it is essential to prove that a person was bound by the order. Where a person was present in court and legally represented when orders are made, evidence should be given of this to help in establishing that a person was aware of the orders and understood their obligations under the orders.
Where the allegation is that a person has intentionally failed to comply with an order, it will be necessary to provide evidence of the state of mind of the person who is said to have contravened the order. This evidence may not be readily available, and in those circumstances, it may be easier to instead show that a person made no reasonable attempt to comply with the order.
A case that looks at the notion of reasonable attempt to comply and with the notion of a parent understanding their obligations under the orders is Daly and Campbell (2005) FLC 93-236. In that case, there were orders in place that provided for changeovers to occur at a children’s contact Centre. Whilst the mother took the parties’ 7-year-old child to the Contact Centre, the visit did not take place because the child refused to go into the room where her father was waiting. In this case the mother had said to the child upon arrival at the centre words to the effect of “off you go”. The mother gave evidence at the hearing that she expected the contact centre workers to take care of the physical handover and that her obligation did not extend past bringing the child to the contact Centre. At first instance, the trial judge held that the mother had not done enough to facilitate the contact taking place and merely taking the child to the centre was insufficient to discharge her obligations and sentenced her to 30 days imprisonment. On appeal, the Full Court of the Family Court confirmed that a parent’s obligation extends beyond simply bringing a child to the changeover venue however, the court did find that the mother did have a reasonable excuse as she had mistakenly thought she was fulfilling her obligations.
It should be noted that all parenting orders now attach an annexure which explains a parent’s obligation to comply with parenting orders and which sets out the consequences that may flow if a parent fails to comply with the order.
Contravention applications must be personally served on the person alleged to have contravened the order.
If the contravention is established, the respondent may raise the argument that they had a reasonable excuse. Under the Family Law Act, a person may be taken to have had a reasonable excuse for contravening an order if:
- The respondent contravened the order because, or substantially because, they did not, at the time of the contravention, understand the obligations imposed by the order on the party who was bound by it; or
- The court is satisfied that the respondent ought to be excused in respect of the contravention; or
- The respondent believes on reasonable grounds that the contravention was necessary to protect the health or safety of a party (including that party or the child), and the period over which the breach extended was not longer than was necessary to protect the health or safety of a party in danger.
Again, this list is not exhaustive and there may be other circumstances which warrant a finding of a reasonable excuse.
When looking at whether someone has acted reasonably, some useful questions to ask are:
- Was the response proportionate to the circumstances?
- Were there any other options available?
- Did the breach continue for longer than was necessary?
In the current environment where there are restrictions on movement owing to coronavirus, an example of a situation where a parent may be deemed to have a reasonable excuse may be where the other parent has recently returned from overseas and during the required quarantine period, the parent withholds the child from spending face-to-face time with that other parent in order to protect the health and safety of the child so long as the period during which the child is withheld is no longer than the quarantine period.
In the case of Childers and Leslie (2008) FamCAFC 5, the father filed a contravention application after the mother withheld time from the father with respect to the parties’ five-year-old daughter. The mother contended that she had a reasonable excuse because her daughter was ill and she had a medical certificate to say that the child should rest and not undertake much activity. The trial judge held that the mother had a reasonable excuse however on appeal the Full Court held that the medical certificate did not constitute a reasonable excuse presumably because the child could have rested and refrained from activity while still in her father’s care.
The sanctions available to the court in a contravention application will depend on whether the court is satisfied that a reasonable excuse exists, whether the contravention is deemed to be less serious or more serious and whether there have been previous proven breaches of an order.
In all proceedings where a contravention application is filed, the court can of its own motion, vary the parenting order. This should be borne in mind before filing a contravention application as the parent alleging a contravention may end up with a variation of the parenting order even though this is not what they wanted.
In Osman & Bellis  FCCA 1152, the mother did not make the children available to spend time with the children during school holidays despite the orders providing that the school holidays were to be shared between the parties. In arguing that the mother had a reasonable excuse, the mother gave evidence that the father had threatened the mother that he would harm the children. The trial judge dismissed the contravention application and varied the court order to reduce the time the father was able to spend with the children and to include a requirement that his time be supervised. The judge also made an order that the father pay the mother’s costs.
Where a contravention is alleged but not established, the court can (as happened in Osman & Bellis) vary the parenting order and order that the unsuccessful applicant pay costs. The court can also make orders for compensatory time and orders for attendance at the post-separation parenting program.
If a contravention application is established but it is held that the respondent had a reasonable excise for contravening the order, the court can vary the existing parenting order, make an order for compensatory time, order the respondent to attend a post-separation parenting program, grant an adjournment to allow the respondent to file an application to vary the parenting order, order to the respondent to enter into a bond, make an order compensating the applicant for lost expenses such as expenses for a holiday that did not occur, and make an order for costs in favour of either party.
In more serious contravention cases where a reasonable excuse is not established, including cases where the respondent has been found to have contravened parenting order on previous occasions, the court can impose community service orders, fines, bonds, imprisonment, compensatory time and costs.
In conclusion, contravention applications can be a useful tool in ensuring that parents comply with parenting orders. Despite this, a Contravention Application should not be filed without careful consideration of what is sought to achieve and of the possible ramifications of making such an application.
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