A parenting order is a set of orders made by a court about parenting arrangements for a child. These orders will include provisions on things like where the child will live, who they will spend time with, and how decisions about their upbringing will be made and may include provisions in relation to the parent’s communication, and holiday and travel provisions. Family Courts may make parenting orders based on an agreement between parties (consent orders) or after a court hearing.
A party to a parenting order must take positive action to ensure that their obligations under the orders are strictly complied with. Parenting orders are legally binding, and non-compliance may result in Courts imposing penalties upon the party who contravenes the orders. A parenting order will remain in force until a further parenting order or parenting plan changes it in some way.
How do you report a contravention?
Parties who allege that a party to an order has contravened their obligations under the orders will need to file:
- An application – contravention;
- An affidavit;
- A certificate from a Family Dispute Resolution Practitioner; and
- A copy of existing orders alleged to have been contravened.
Parties will also need to provide evidence of the contravention, such as emails, text messages or any other relevant information.
Standard of proof
When the court is presented with evidence surrounding the alleged contravention, it will apply a standard of proof. Except in serious contraventions, a party must prove the allegations on the ‘balance of probabilities’. In circumstances where a contravention is alleged, the alleging party must prove that it is more likely than not that the contravention occurred.
However, if the court considers imposing a prison sentence, it will not find the contravention proved unless the allegations are established ‘beyond reasonable doubt’. This is the same standard of proof that applies in criminal matters.
The rules of evidence are strictly applied in contravention matters which differs from the rules of evidence which can be applied in parenting matters.
What conduct constitutes a contravention?
A contravention of parenting orders occurs when one party fails to comply with the terms of a parenting order. Contravention will occur if a party:
- Intentionally fails to comply with the order; or
- Makes no reasonable attempt to comply with the other; or
- Intentionally prevents compliance with the order by a person who is bound by it; or
- Aid or abets a contravention of the order by a person who is bound by it.
Whether a contravention has occurred will depend on the specific terms of the parenting order. Common causes of contravention include failure to facilitate the child’s time with the other parent pursuant to the orders, failing to notify the other parent of a change of address, or taking the child out of Australia without the other parent’s consent.
What constitutes a reasonable attempt to comply?
Once the Court has ruled on whether a contravention of a parenting order occurred, they will consider whether there was a reasonable excuse for contravention. Some examples of reasonable excuses that may satisfy the Court include:
- The person did not understand the obligations imposed by the order; or
- The person reasonably believed that the actions resulting in the contravention were necessary to protect the health and safety of a person, including the person who contravened the order or the child subject of the order; and
- The contravention did not last longer than was necessary to protect the health and safety of the person who contravened the order of the child.
If the Court finds a party has contravened a parenting order but had a reasonable excuse to do so, no penalties will be imposed.
What are the consequences of contravention?
If a parent is found to have contravened a parenting order without reasonable excuse, Family Courts may impose penalties. In determining the penalty, the court will consider the seriousness of the contravention and the circumstances surrounding it. Some of the penalties that may be imposed include:
- A bond
- A fine
- A requirement to attend a post separation parenting program
- A variation of the order
- Community Service
- Imprisonment
Ultimately, non-compliance of parenting orders is treated very seriously by Family Courts and those that contravene orders, without a reasonable excuse are likely to face penalties.
If you wish to seek advice surrounding your legal obligations pursuant to a parenting order or believe you or another party have contravened a parenting order, please do not hesitate to call our office at 03 9670 4122 to arrange an initial consultation.