Family & Relationship Law 20 January 2023

Compliance and Contravention of Parenting Orders

Parents can formalise their agreed care arrangements for children by way of Consent Orders (filed with the Federal Circuit and Family Court of Australia – the Court) or the arrangements can be determined by a Judge at the end of the Court litigation process.

Once Parenting Orders are made they legally binding on both parents and cannot be changed unless there has been a significant change of circumstances since the Orders were made. Parenting Orders can be Interim (meaning short term orders until further short term orders or a Final Order is made) or Final (being the orders that govern the arrangements for the child on a long term basis).

This article focuses on what parents can do if the other parent does not follow the Parenting Orders, and in particular, Contravention Applications.

What can I do if the other parent does not follow (breaches or contravenes) a Parenting Order?

The first step is to address the reason for the non-compliance with the other parent either directly through polite negotiation or through lawyers. There might be a practical issue that can be easily addressed rather than pursing formal Court applications.

However, if negotiation does not work, a party can either:

  1. Apply for an Enforcement Order – this is done to address the problem, force someone to do something and ensure compliance with the Order; or
  2. File a Contravention Application – the aim of this application is to punish the other party for repeated minor breaches or serious non-compliance with Parenting Orders.

Whether or not to issue a Court application is best discussed with a lawyer. Factors that should be considered are the costs of litigation, the type of breach, potential cost orders against a party and the impact this may have on the ongoing post separation parenting relationship.

What is considered a contravention of a Parenting Order?

The Family Law Act 1975 (Cth) (the Act) states that a person bound by the order intentionally failed to comply with the order or made no ‘reasonable attempt to comply’ with the order. It also includes a person who prevents a person bound by an order to comply or aid or abet the breach of the order.

The Court must be first satisfied that a breach of an order has occurred – which must be clear and unambiguous. If the breach is established, a parent may have a reasonable excuse for not complying.

‘Reasonable attempt to comply’

The term ‘reasonable attempt’ has long been ambiguous and has provided little guidance for parties unsure of their obligations. As such, there has been a requirement to provide clarification to this point to avoid unnecessary Contravention or Enforcement Applications from being brought before the Court.

The case of TVT & TLM [2006] FMCAfam 20 summarises key principles to determine whether steps taken by parties had been a ‘reasonable attempt to comply’ with a parenting order.  Whether such steps are considered ‘reasonable’ depends upon the individual facts and circumstances of each case. However, it is accepted, that a parent has a duty to not only ensure that a child spends time with the other parent as ordered but does so in a positive manner.

The principles include the following:

  1. The parent must actively encourage the child to spend time with the other parent as ordered.
  2. The parent should take reasonable steps to deliver the child to the other parent as ordered.
  3. The parent must do more than bring the child to the front entrance and invite them to walk to the other parent. If the child refuses, the parent should not argue that their obligations under the order are satisfied by merely standing and doing nothing or discouraging the child from remaining on the doorstep.
  4. A mere request that the child telephone or come to the telephone to communicate with the other parent is insufficient.
  5. Once a parenting order has been made, the parent can no longer say to the child; “You go if you want to’, ‘If you wish to go, you go’ or, ‘You make up your own mind’.
  6. The parent is expected to utilise all authority they have over the child. For example, just as a parent would ensure the child attends school, they should ensure a parenting order is complied with.
  7. It is not enough for an invitation to be made to persuade the child that the order is something which the parent approves of but is stated in a tone which suggests that it is the choice of the child to comply with the order, and the parent does not mind if the child says ‘No.’
  8. It is not enough to make a token effort at compliance by stating a few phrases which, are not designed to positively encourage the child to spend time with the other parent, but to convey the burden on both the child and the other parent, that such compliance is by way of obligation.
  9. It is not enough for the parent to point to words and actions and to say, in effect: ‘You see I tried,’ or ‘But the child does not want to go!’’ and to figuratively fold their arms as if that was the end of the attempt.
  10. The parent should not treat the other parent as an enemy who should be dissatisfied wherever possible, either by active steps or by passive resistance.

What is a reasonable excuse for not complying with a Parenting Order?

Whether or not there is a reasonable excuse for non-compliance will depend on the Parenting Orders and the fact of the case. Some examples include that the Orders are unclear, particular scenarios that arise or the contravention is necessary to protect the health and safety of child (being for a period no longer than necessary to do so).

You should seek legal advice about any reasonable excuse in not complying with a Court Order or your parenting case in general.

What are the consequences for failing to comply with a Parenting Order?

There are serious consequences for failing to comply with a Parenting Order. That is, if the Court finds a parent contravened an order without a reasonable excuse, the Court may (depending on the seriousness of the breach):

  1. Vary (change) the initial Parenting Orders;
  2. Impose a penalty such as a fine or prison sentence; or
  3. Order that the parent that contravened the order pay some or all of the other parent’s legal costs.

What if I do not have Parenting Orders? What if I have just a Parenting Plan?

If there are no Court Orders in place and just an informal agreement but the other parent is not sticking to the agreement, then you should seek legal advice about either formalising the agreement into enforceable Court Orders (by consent) or through litigation depending on the issues.

A Parenting Plan is an informal document setting out the agreement for the children in writing. Parenting Plans are not legally enforceable but are evidence of the agreement reached.

How we can help

If you or the other parent is not complying with a Parenting Order it is always best to seek legal advice as to the best method to resolve the issue, in a cost-effective and efficient way. Please do not hesitate to contact us for a 30 minute no cost consultation with one of our experienced lawyers in the Family & Relationship Law Team. We are here to help you navigate issues concerning you and your family.

Courtney Johnson.
Courtney Johnson Lawyer Employment, Discrimination & Equality Law View profile
Laura Villemagne-Sánchez.
Laura Villemagne-Sánchez Senior Associate Family & Relationship Law View profile
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