Contravention Proceedings

The Court can make parenting orders by consent or through judgement that will outline a parenting procedure for your children. Following such orders being sealed by the Court, each parent is bound to adhere to the orders.

If your children are subject to orders, it means:

  • you are obliged to proactively ensure compliance with the orders. For example, if the order provides that your children are to be in the care of the other parent and they say they do not want to go, you should both encourage your child to spend this time and actively compel them to do so;

  • the orders must be complied with even if the circumstances change with respect to your children, yourself or the other parent. If there is a change which causes a complete inability to comply with the orders, the orders will require formal amendment. In this regard, the orders will remain enforceable until amended either by:

    • written agreement between yourself and the other parent. This can be achieved by entering into a new parenting plan or through joint application for consent orders varying the existing orders; or 

    • through additional judgement of the Court following an application for variation being filed.

how are parenting orders breached?

A parenting order is breached or contravened by a party when they:

  • fail to comply with the orders; or

  • do not make reasonable attempts to comply with the orders. This includes:

    • preventing compliance with the orders by a party who is bound to the orders; or

    • assists or entices a breach of the orders by a party bound to the orders.

A breach will only be ‘excused’ if the breaching individual can provide a reasonable excuse or justification for the breach of the orders. It should be noted however that once the defence of “reasonable excuse” is raised, this effectively amounts to a concession that a breach or contravention of the parenting order has occurred.

What can I do if the children’s other parent breaches parenting orders?

It is always recommended to resolve any disputes with respect to parenting orders by attending Family Dispute Resolution (FDR). If this is not possible or suitable, you may apply to the Court for a contravention order either through an Application in a Case, Contravention Application or Application to Vary Existing Orders.

Contravention Application

If you need to enforce or implement existing orders, you may file a ‘Application – Contravention’ with the Court. Before filing this application, consideration needs to be given on what the desired outcome is, with respect to the available remedies. The Court can order the following:

  • vary existing parenting orders;

  • enforcement of arrangements previously contained in the orders;

  • compensate a parent for lost contact time via ‘make up time’;

  • require a contravening parent provide the Court a ‘bond’, returnable when the child(ren) is in the other parent’s care;

  • provide notice to the contravening parent that further contravention will result in punishment;

  • order a contravening parent be punished by way of a fine and/or imprisonment; and/or

  • make additional specific orders, being:

    • the requirement for the parents to attend a post-separation Parenting Orders Program;

    • an Order for one parent and/or organisation to disclose where you and/or the child(ren) may be located; and/or

    • an Order to the Marshal of the Court, the AFP, and state and territory police requiring that the child(ren) be located and delivered to the other parent (i.e., a recovery order).

Application to Vary the Primary Order

If you require a variation to existing Orders, an Initiating Application with supporting Affidavit will need to be filed with the Court. This Affidavit will set-out the significant change in circumstances which have arose since the making of the Orders, and provide why the change is in the best interest of the child(ren).

To this end, there is a very high threshold for establishing that a change in circumstances are significant enough to warrant the variation of existing parenting orders.

Pickering Pendleton is a Sydney family law firm with experienced lawyers who are able assist you and formulate the best course of action for your personal situation. If you are concerned about your obligations or your child(ren)’s other parent’s obligations under parenting Orders, or the contravention of these Orders, please contact us for a free 30 minute consultation.