While each parent is presumed to have or share in the parental responsibility for a child, this is subject to any Court order to the contrary. Contravening (breaching) such an order is a potentially serious matter. A Court order is legally enforceable, and each person involved must take all reasonable steps to comply.
What are Parenting Orders?
The Family Law Act (Cth) stipulates that a parenting order may deal with, for example, one or more of the following:
- who the child is to live with;
- who a child is to spend time with;
- the allocation of parental responsibility for a child;
- if two or more persons are to share parental responsibility for a child, the form of consultations those persons are to have with one another;
- the communication a child is to have with the other parent;
- the process for resolving disputes about orders;
- all aspects of the care, welfare or development of the child.
What constitutes a breach of a parenting order?
A breach occurs when, for example, a person:
- intentionally fails to comply;
- makes no reasonable attempt to comply;
- intentionally prevents compliance by another person who is bound by the order;
- aids or abets a contravention by a person who is bound.
Can the breach of a parenting order ever be acceptable?
Where a contravention has occurred, the only acceptable defence is that there was a ‘reasonable excuse’. Some examples of reasons that might be acceptable to a Court include:
- not understanding the obligations contained in the order;
- believing that the contravening actions were necessary to protect the health and safety of the child;
- the breach did not last longer than was necessary.
Case Study 1: Bircher & Bircher (2021)
In this case, a father filed a contravention application in Court alleging that the mother had breached a parenting order by preventing one of their three children from spending time with him during school holidays.
The mother’s excuse for doing this was that the father had done much the same to her. At the time, the mother had not filed a contravention application. The Court did not accept that her ‘tit for tat’ behaviour constituted a ‘reasonable excuse’ to breach the terms of the parenting order. She was fined, and an order was made for compensatory time between the child and father to make up for the lost contact.
The mother appealed, but this was dismissed. The Federal Circuit and Family Court reiterated that the father’s previous non-compliance did not entitle the mother to act as she had. Rather it would have been appropriate for her to make a contravention application in respect of the father’s previous breach of the parenting order instead of taking matters into her own hands. The Court noted that parenting orders exist to ‘regulate the actions of parents for the benefit, protection and security of the children’.
Case Study 2: Raider & Raider (2011)
This case also involved non-compliance with a parenting order by the mother over children spending time with the father during school holidays. The mother lived in Sydney with two children aged 13 and 11. The father stayed in Surfer’s Paradise, Queensland.
The parenting order included provisions for the children to spend time with the father during school holidays and the mother had to give 28 days' notice of when that was to happen.
The father made a contravention application. The mother claimed the reason for the breach was that the children did not wish to see or speak to him on the telephone.
The Court had to decide whether the mother had intentionally failed or had made no reasonable attempt to comply or whether she had a ‘reasonable excuse’ for failing to comply. It determined that the mother was in breach of some of the father’s allegations to the extent that she had not provided the required notice or encouraged the children to speak to their father. However, she did have a reasonable excuse because the 13-year-old son had threatened to self-harm, and it was in the children’s best interests not to spend time with the father.
The Court reiterated that, in general, the parent with whom the children live is expected to have an active role with an obligation to positively encourage access and not just sit back and rely on saying they tried, but the child did not want to go.
What does it mean?
The Court will always consider the best interests of the child as paramount when making parenting orders. These orders are designed to give both parties confidence in the care of their children after separation.
A parent contravenes parenting orders when they fail to comply with the orders or takes action that prevents the other parent from spending time with their children in accordance with the orders.
If a contravention is alleged, a contravention application can be made. The applicant must show that the other parent has intentionally failed to comply with the parenting order or has made no reasonable attempt to do so.
If existing Court orders no longer fit the prevailing circumstances, or either of the parties cannot reasonably comply, steps should be taken to change the order rather than breaching the existing orders by one parent taking matters into their own hands.
Non-compliance with parenting orders can have serious ramifications, including but not limited to, fines and even imprisonment in very serious cases.
The Court has wide discretion as to whether a defence of ‘reasonable excuse’ will be successful.
The law on contravention or breach of orders can be complicated. If a person alleges that there has been a breach of an order it is important that they seek legal advice because an unsuccessful application can result in a costs order against the applicant.
Contact our Family Law Solicitors in Sydney, NSW
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