Breaching parenting orders can be costly

21-March-2015 Family Law By Simone Green

How do I file a contravention application?

Before commencing proceedings in court for parenting orders, each party is required to make a genuine attempt to resolve the matter by Family Dispute Resolution (FDR).

Once a party has attended FDR, they would usually be issued with a certificate. This certificate needs to be filed with the court documents as evidence of attending FDR.

In special circumstances, where there has been child abuse, family violence or there is urgency, FDR may not be required. In these circumstances, the party must provide a detailed explanation to the Court as to the reason why FDR is not appropriate. The circumstances must fit with one of the FDR exemption categories

What does it mean to have contravened a parent order?

A person is taken to have contravened an order affecting children if:

(a) the person has intentionally failed to comply with the order; or

(b) the person has made no reasonable attempt to comply with the order.

What is considered to be a “reasonable excuse” for contravening an order?

The first step is to prove to the court that the other party has contravened the orders. If this is proved on the balance of probabilities, the Court must then be satisfied that there was a reasonable excuse for that contravention to have taken place.

If an order relates to time spent with a child, a person is taken to have had a reasonable excuse for contravening an order if:

(a) that person believed, on reasonable grounds, that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person; and

(b) that the period during which, because of the contravention, the child and the person did not spend time together was no longer then what was necessary to protect the health or safety of the person referred to above.

The court’s powers in a contravention application

The orders the court may make following a hearing of a contravention application will depend on what finding has been made and if the contravention is considered reasonable (as explained above).

Essentially, the court can come to one of the three following conclusions:

  1. no contravention is established. In this scenario, the court can consider making an order for costs against the person who has commenced proceedings for contravention.
  2. a contravention is established but a reasonable excuse exists. In this scenario, the court must consider making an order compensating the person for lost time with the child. The court will have regard to the child’s best interest in ordering such time. 
  3. a contravention is established but no reasonable excuse exists. In this scenario, the court can order a range of penalties, from directing the party in breach or any other person to attend a post-separation program or do community service through to fines and even imprisonment.
Regardless of the outcome of the hearing, that is whether the court finds in favour of (a), (b) or (c), the court may make an order varying the parenting orders in place. This is a risk the person defending a contravention application is faced with.

Streeterlaw’s Andrew Banna said breaching parenting orders can be costly to all involved.

“Any breach should be avoided as you risk upsetting or damaging your relationship with your children and it opens the door for a judge to alter your current parenting arrangement, which may not be in your favour,” he said.


For further information or advice, please contact Streeterlaw’s Family Law experts on 8197 0105 or email advice@streeterlaw.com.au.

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