Author: Carol Pages, Pages Family Law.

One of the advantages of having Court orders for your parenting arrangements are that these are enforceable.  See our earlier article in our Parenting After Separation series here: Parenting after separation – What’s the best way to document your agreement? | Family Law

Parenting orders can be varied by written agreement between the parents, to make new arrangements for their children.  What if you can’t agree? Or what if a parent does not comply with the Orders? What happens next?  If one parent breaches their parenting orders a Contravention Application to the Court can be made by the other parent.  The below information provides some information to help you decide if this is the right path for you.

1. Try to resolve the dispute the first time the orders are not complied with. This should be done in writing.  
2. Is this a one-off breach of the orders? Could negotiating make up time with the parent who missed out on time with the children resolve the issue?
3. Is it that the other parent intentionally failed to comply with the order or made no reasonable attempt to comply?  Would they argue they have a reasonable excuse? 
4. If you are the parent not complying with the order – do you have a reasonable excuse?  Reasonable excuse includes a reasonable belief that it was necessary to contravene the order to protect the health and safety of a person, such as the children.  The contravention must be no longer than necessary to protect the person’s health and safety.
5. Prior to making a Contravention Application you must make a genuine effort to resolve your dispute using family dispute resolution. There are exceptions to this – such as if there is a risk of child abuse or family violence, the application is urgent, or the order being contravened was made in the last 12 months and the other parent has behaved in a way that shows they are disregarding their obligations under the order.
6. For either parent – what is the outcome that you seek? Before attending mediation or making a Court application consider whether you seek make up time with the child or whether the orders need to be varied or suspended.  A parenting plan made at mediation can vary the existing orders.  Depending on the circumstances, it may be helpful to attend a post separation parenting program, or family therapy to assist in making arrangements in your children’s best interests.

If you are considering making a Contravention Application, or if you have received service of one, it is advisable to obtain legal advice.  In applications alleging contravention of orders affecting children very serious orders can be made by the Court including costs orders against either party, compensation for reasonable expenses lost because of the contravention (eg airfares) fines or even imprisonment.

_________________________________

The content of this article is provided for information purposes only and does not constitute legal advice.  We recommend that you seek legal advice relevant to your own circumstances and we would be happy to assist you.

Carol Pages is the Principal of Pages Family Law and an Accredited Specialist in Family Law and a Nationally Accredited Mediator. If you would like advice about your own separation, please contact Pages Family Law at info@pagesfamilylaw.com.au or on 03 9121 8077.