In an ideal world, parenting orders and final court orders would be a fixed endpoint to what is often a long, gruelling process. Unfortunately, sometimes this is not always the case, with problems continuing to arise from parents not abiding by the final orders granted.
So, what action can you take if your former partner is breaching these orders?
The first thing to be aware of is that when someone breaches a court order, this is known as a contravention, and is an offence punishable by the court.
What is considered a contravention?
Before considering your legal options for dealing with a contravention, it is important to first identify whether the other person has actually contravened the order.
A contravention only occurs when someone has either:
- Intentionally failed to comply with any of the final orders granted;
- Makes no reasonable attempt to comply with any of the final orders granted;
- Intentionally prevents the other parent from complying with any of the final orders granted; or
- Aids or abets the other parent in contravening any of the final orders granted.
On the other hand, someone is not considered to have contravened an order if:
- They did not understand the obligations imposed by the order; or
- The person reasonably believed that the actions constituting the contravention were necessary to protect the health and safety of a person, including the person who contravened the order or the child, with the contravention not lasting any longer than was necessary to protect the health and safety of the person who contravened the order or the child.
What do I do if the Mother/Father breached our court orders?
If you believe there has been a breach, it is best to seek legal advice before deciding how you would like to proceed. While you can file an application with the court, it is a good idea to first try to negotiate a resolution with the help of your lawyer and/or attend Family Dispute Resolution to try and resolve the problem.
This is usually the best course of action as ultimately your goal is to have an arrangement that works without the court’s supervision through the mutual cooperation of you and your former partner. By attempting to resolve these issues outside of the court, it is more likely that you will preserve a working relationship with the other parent so that breaches are less likely to occur in the future.
Applying to the court
In the event that the issue cannot be resolved without the court’s input, you can file an application with the court in relation to the breach.
There are two types of applications which can be made:
1. an application for enforcement (that is, an application for an order requiring the other party to comply with court orders), or
2. an application for contravention (that is, an application for an order to punish the other party for failing to obey an order).
We are able to assist you with either type of application.
What penalties can be issued if the court finds there has been a contravention?
There are a range of penalties the court can impose for breaching a parenting order.
- Varying the original orders;
- Ordering that the contravening parent attend a post separation parenting program;
- Giving the non-contravening parent “make up time” for the time lost as a result of the breach;
- Requiring the contravening parent to enter into a bond;
- Ordering the contravening parent to pay some or all of the other party’s costs of the contravention application;
- Ordering the contravening parent to pay compensation for any reasonable expenses lost as a result of the breach;
- Requiring the contravening parent to participate in community service;
- Ordering the contravening parent to pay a fine; or
- In exceptional circumstances, ordering the contravening parent to a sentence of imprisonment.
The penalty issued by the court will depend on the circumstances and seriousness of the breach.
How can Sharrock Pitman Legal assist?
If you are experiencing any problems with the parenting orders you have in place, please do not hesitate to contact our Family Law Team, on 1300 205 506 or via email at email@example.com for advice and practical assistance.
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
Liability limited by a scheme approved under Professional Standards Legislation.
For further information contact
Katharine is a Senior Associate of Sharrock Pitman Legal.
She is an Accredited Specialist in Family Law (accredited by the Law Institute of Victoria). For further information, contact Katharine on (03) 8561 3319.