A contravention of court orders happens when a person fails to follow the orders set by the court. "Contravention", in simpler terms, means "breach."

In Family Law, most parenting orders contain terms on where the children will live and how they spend time with the other parent. A contravention occurs when one parent refuses to deliver the child to the other parent, or the other parent refuses to return the child to the parent with whom the child lives.

For instance, if there are orders for a child to see the father every Sunday and the mother refuses to let the child go, she contravenes the parenting order. This article discusses the rules pertaining to contravention of parenting orders under The Family Law Act 1975.

What is a "Contravention"?

When a court issues orders, whether through consent or after a court proceeding, the parties involved must follow these legally binding orders. A person violates an order without reasonable excuse if they do one of the following:

  • Failure to comply with the order on purpose,
  • Made no reasonable attempt to comply with the order,
  • Intentionally prevented a person who is bound by the order from complying with it, or
  • A person who is bound by the order aided or supported a violation of the order.

What is a "Reasonable Excuse"?

Reasonable excuses for contravening a parenting order include:

  • A party did not understand their obligations imposed under the order,
  • A party believed on reasonable grounds that their actions of disobeying the parenting order were necessary to protect the health or safety of the child or another person, and
  • The length of time of disobeying the order was not longer than reasonably necessary (for example, there was a car accident thus delaying a child being handed over to the other parent).

The following do not constitute a "reasonable excuse":

  • A party does not agree with the terms of the order, or
  • Personal reasons (for example, a party dislikes their former partner's new partner).

Breaching a Parenting Order

If the Court finds that a person breached a parenting order, beyond reasonable doubt, the Court can make a variety of orders, such as an order:

  • To make up time to compensate for the time that the person with parental responsibility missed. Parental responsibility refers to the authority to make major and long-term decisions for a child.
  • For a person to attend parenting education programs such as a post-separation parenting program,
  • For a person to enter into a bond and/or receive a fine, or
  • Requiring the contravening person to pay some or all of the costs of the other party.

In addition, the Court can decide to vary or change the original parenting order even if a party did not apply for a change of the order. Often, the Court assesses whether an order needs to be varied to prevent further problems in the future.

Read more about the Court's power in relation to contravention without excuse here.

Case Law: Bircher & Bircher [2022]

In the case of Bircher & Bircher, the children's father filed a contravention application with the Federal Circuit and Family Court of Australia. Mr Bircher argued that the mother withheld the child from spending time with him (pursuant to parenting orders made in 2019) on a number of occasions.

The parties had three children together, aged 12, 13, and 15. The court made parenting orders in November 2019. The father filed a contravention application in May 2021, alleging that between 1 January 2021 and 8 January 2021, the mother contravened the parenting orders by failing to make one of the three children available to spend time with him during the school holidays. The mother retained that child in her care for seven days.

The mother argued that she retained that child because the father had, without reasonable excuse, previously withheld the same child from her between 4 December and 11 December 2020 (also a period of seven days), contravening the parenting orders as well. At that time, the mother chose not to file a contravention application, but rather, withhold the child at a future time to "make the score even."

Court Findings

The Court found that the mother's behaviour of "evening the score" did not constitute a reasonable excuse for her to contravene the terms of the parenting order. The Court imposed a fine against her and made an order for compensatory time between the child and the father.

The mother appealed the case, but the Court dismissed the appeal and said that even if the father initially contravened the parenting orders by retaining the child in December 2020, the father's lack of compliance of the orders does not entitle the mother to withhold the child as she did in January 2021.

The Court further noted that the mother's appropriate course of action or remedy would be invoking the Court's power by making an application for the father's previous contravention rather than engaging in "self-help".

It also noted that to accept the mother's argument would lose sight of the fact that parenting orders regulate the actions of parents for the benefit, protection and security of the children. The Court added that parties must not resort to "self-help" when they believe another party breached a court order or legal rule; the remedy always lies in an application to the courts to adjudicate upon such issues according to law.

The Court also emphasised that parents ought to consider the best interests of the child first. But in this case, the actions of both parents appear to have been for their own benefit, not the children's. Hence, their behaviour resulted in double disruption of the court-ordered parenting arrangements and negative impact towards the children.

The Importance of Seeking Legal Advice

The Bircher case clearly shows that parties must not "even the score" if the other party breached or failed to comply with a parenting order. Hence, getting legal advice is the first thing to do if you want to make a legal accusation against your former partner of contravening a parenting order.

The Court judges a case according to its individual circumstances. Thus, outcomes vary, which highlights the importance of understanding how the law applies to your specific situation.

JB Solicitors has a leading team of expert family lawyers that can help with your case. You may obtain legal advice from us for your family law issues, including any need to file an application for breach or non-compliance with parenting orders.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.