Last updated 8 August 2016

Contravening a parenting order means disobeying the orders and other obligations that affect children. Contravention applications are very technical and are dealt with in a quasi-criminal manner. It is necessary for the applicant to establish a breach of an order and, if established or admitted, the proceedings move into considering if the respondent has a reasonable excuse or not. Depending upon the outcome, the application or parts of it may be dismissed, or if no reasonable excuse is established, penalties may be imposed. Before filing a contravention application, it is important that consideration is given to the client’s desired outcome. In many instances, a variation to the orders is requested or required, and a better approach may be to file an application seeking that variation.

A person is taken to have contravened an order under pt 7 of the Family Law Act 1975 (Cth) (Family Law Act) if, and only if, the person is:

  • bound by the order and they have:
    • intentionally failed to comply with the order
    • made no reasonable attempt to comply with the order
  • not bound by the order and they have:
    • intentionally prevented compliance with the order by a person who is bound by it
    • aided or abetted a contravention of the order by a person who is bound by it (s 70NAC).

Remember, a subsequent parenting plan varying an order may mean no breach of an order has occurred.

Section 70NAE(2) of the Family Law Act provides that a person has a reasonable excuse for contravening an order if they did not understand the obligations imposed by the order, and the court is satisfied that the respondent ought to be excused in respect of the contravention.

Where the respondent is alleged to have contravened a parenting order that provides for a child to live with, spend time with or communicate with a person, or provides for the allocation of parental responsibility in relation to a child of a person (s 70NAE(4)–(7) Family Law Act), the respondent is taken to have had a reasonable excuse for contravening the order only if:

  • the respondent believed, on reasonable grounds, that their actions were necessary to protect the health and safety of the child or themselves
  • the period that the child did not live with, spend time with or communicate with the person, or for which the respondent hindered or prevented the discharge of the parental responsibilities, was no longer than necessary to protect the health or safety of the person they were protecting.

The court retains the power to vary an order regardless of whether or not it finds that a contravention has occurred (s 70NBA(1) Family Law Act). If the court is considering varying the order that is alleged to have been contravened, the court must:

  • have regard to any parenting plan that has been entered into since the order was made (s 70NAA(2) Family Law Act)
  • consider whether it is appropriate to vary the order to include some or all of the provisions of the parenting plan, if a subsequent parenting plan has been made (s 70NBB(2)(d) Family Law Act).

Contravention alleged but not established

Where the court does not find that the respondent committed the alleged contravention (s 70NCA Family Law Act), the court may order the applicant to pay some or all of the other party’s or parties’ costs (s 70NCB Family Law Act).

As a significant deterrent to parties bringing unfounded contravention applications, the court must consider making an order for costs if the applicant has previously brought contravention proceedings, and, on the previous occasion, the court was not satisfied there had been a contravention or did not otherwise make an order dealing with the respondent (s 70NCB(2) Family Law Act).

Contravention with reasonable excuse

Where the court is satisfied that a contravention has been committed, but the respondent proves that they had a reasonable excuse for contravening the order, the court may order and must consider making an order that compensates for the time the applicant did not spend with the child as a result of the contravention, unless doing so would not be in the best interests of the child (s 70NDB(1)–(2) Family Law Act).

When the court does not make an order for ‘make up time’, the court may order the applicant to pay some or all of the other party’s or parties’ costs (s 70NDC Family Law Act). The court must consider making an order to that effect if the applicant has previously brought contravention proceedings, and, on the previous occasion, the court was not satisfied there had been a contravention or did not otherwise make an order dealing with the respondent (s 70NDC(2) Family Law Act).

Less serious contravention without reasonable excuse

A less serious contravention will be established where the court is satisfied that a person has contravened a primary order without reasonable excuse and:

  • no court has previously made an order imposing a sanction for contravention or adjourning previous contravention proceedings (s 70NEA(2) Family Law Act)
  • a court has previously made an order imposing a sanction for contravention or adjourned previous contravention proceedings, but the court is satisfied it is more appropriate to deal with the current contravention as a less serious contravention (s 70NEA(3) Family Law Act).

This type of contravention does not apply if the court finds that the person who contravened the order has behaved in a way that shows serious disregard for their obligations under the primary order (s 70NEA(4) Family Law Act).

If the court finds that the contravention is a less serious contravention, it may (pursuant to the Family Law Act):

  • make an order directing the person who committed the contravention or that person and another person to attend a post-separation parenting program (ss 70NEB(1)(a), 70NED, 70NEF, 70NEG)
  • make a further parenting order compensating a person for the time not spent with the child (ss 70NEB(1)(b), 70NEB(4)–(5))
  • adjourn the proceedings to allow a party to apply for a further parenting order that discharges, varies, suspends or revives a primary parenting order (s 70NEB(1)(c))
  • require the person who contravened the order to enter into a bond (ss 70NEB(1)(d), 70NEC)
  • make an order requiring the person who committed the contravention to pay compensation for any expenses incurred as a result of the contravention in which the applicant was prevented from spending time with the child (s 70NEB(1)(e))
  • order the person who contravened the order to pay some or all of the costs of the other party or parties (s 70NEB(1)(f))
  • order the person who brought the application to pay some or all of the costs of the contravening party if the court makes no other orders (ss 70NEB(1)(g), 70NEB(7)).

More serious contravention without reasonable excuse

A more serious type of contravention will be established where the court is satisfied that a person has contravened a primary order without reasonable excuse and:

  • no court has previously made an order imposing a sanction for contravention or adjourning previous contravention proceedings, but the court is satisfied the respondent has demonstrated a serious disregard for their obligations (i.e. a serious contravention) (s 70NFA(2) Family Law Act)
  • a court has previously made an order imposing a sanction for contravention or adjourning previous contravention proceedings (s 70NFA(3) Family Law Act).

In cases where the court regards the contravention as serious, the court must:

  • make an order that provides for the contravening party to pay all of the costs of the other party, unless the court is satisfied that doing so is not in the best interests of the child (s 70NFB(2)(g) Family Law Act)
  • consider making the other most appropriate order (s 70NFB(2) Family Law Act)
  • make at least one other order if the court does not make a costs order (because doing so would not be in the best interests of the child) (ss 70NFB(1)–(2) Family Law Act).

Section 70NFB(2) of the Family Law Act sets out the orders that the court can make in cases of serious contravention:

  • a community service order (where the court is empowered under s 70NFC of the Family Law Act to do so)
  • an order that requires the person who contravened the order to enter into a bond
  • a further parenting order that compensates for the time the applicant did not spend with the child
  • a fine of not more than $10 800
  • a sentence of imprisonment in accordance with s 70NFG of the Family Law Act. The court must not impose a sentence of imprisonment unless it is not appropriate for the contravention to be dealt with by any other provisions, or unless it is satisfied that the contravention was intentional or fraudulent (s 70NFB(4) Family Law Act). Sentences of imprisonment cannot be imposed in relation to child support contraventions (s 70NFG(5) Family Law Act)
  • an order requiring the person who committed the contravention to pay compensation for any expenses incurred as a result of the contravention in which the applicant was prevented from spending time with the child
  • an order that the person who committed the contravention pay some or all of the costs of another party.