Breaching parenting orders: what you can do

When parenting orders are not being followed, it is understandable to feel frustrated, powerless and eager to take immediate action. A parent may miss time with their children, be denied communication, or find that arrangements which were meant to provide certainty are simply not working in practice.

However, taking an ex-partner back to court is not always the best response. A contravention application can be appropriate in some circumstances, but it is not a simple solution and it may not address the real issue behind the dispute.

What does it mean to breach parenting orders?

Parenting orders can be made by agreement between parents or imposed by a court. Either way, they set out the arrangements parents are expected to follow in relation to their children.

When one parent does not comply with those arrangements, the other parent may consider making an application for contravention. In practical terms, this is an application asking the court to deal with the other parent for breaching the orders.

The focus is on the specific conduct said to amount to a breach. It is not enough to make a broad assertion that the other parent has not complied. The application needs to be carefully prepared and clearly identify the relevant:

• Times when the alleged breach occurred
• Dates of the alleged breach
• Places relevant to the arrangements
• Parts of the parenting orders said not to have been followed

That level of detail matters. Parenting disputes are often emotionally charged, but court applications need to focus on the particular orders and the particular events that are said to have occurred.

For general information about family law contravention proceedings, the Federal Circuit and Family Court of Australia provides current court information and resources.

Possible consequences of a proven contravention

If the court is satisfied that a parent has contravened parenting orders, it has a range of options available. Those options can include penalties such as a fine or a bond. In serious cases, imprisonment can also be available.

But an important point is often missed: the court has discretion. Even where a breach is established, the court may decide not to impose a penalty. A contravention application is therefore not an automatic path to punishment, nor is it necessarily a path to a practical resolution.

The court may also make an order for make-up time. This is time intended to compensate a parent for time lost with a child because the other parent did not comply with the parenting orders.

Make-up time may sound straightforward, but it does not always solve the broader problem. If the arrangements continue to break down, parents can remain caught in an ongoing cycle of missed time, allegations and further legal action.

Why a contravention application may not solve the real problem

Before making an application for contravention, it is worth thinking carefully about what outcome is actually needed.

Sometimes the issue is not simply that one parent has chosen to ignore orders. Sometimes the underlying difficulty is that the parenting arrangements are no longer workable. Circumstances may have changed, communication may have broken down, or practical features of the orders may be creating repeated conflict.

As Bruce Provan, Managing Director of Page Provan Family & Fertility Lawyers, points out, an application for contravention may fail to deal with that underlying problem. If the orders themselves are not working, enforcing them may not provide the long-term answer.

In that situation, an application to vary the parenting orders may be more appropriate. Rather than concentrating on past conduct and punishment, a variation application addresses whether the existing arrangements need to change.

There can be unintended consequences

There is a real risk in approaching a contravention application as a simple enforcement tool. The court has authority to vary parenting orders in the course of dealing with a contravention matter if it considers that the orders are not appropriate.

That means a parent who applies for contravention may not necessarily end up with the result they expected. It is not uncommon for a parent to make such an application and ultimately receive less time with the children than they had under the earlier arrangements.

This is why the question should not simply be, “Has there been a breach?” It should also be:

• What is causing the arrangements to fail?
• Are the current orders still practical?
• Would a change to the parenting orders better address the situation?
• Is there a way to resolve the dispute without adding further conflict and expense?

The best legal step depends on the facts of the particular family. A response that is focused only on punishment can sometimes make an already difficult co-parenting situation more entrenched.

Parenting coordination as an alternative

Parenting coordination can offer another option where parents are struggling to make parenting arrangements work.

This process involves parents consulting with a qualified parenting coordinator to identify and address the issues leading to non-compliance. The aim is to develop an agreeable plan that helps the parenting arrangements operate more effectively.

Rather than allowing the dispute to escalate directly into court proceedings, parenting coordination focuses on practical solutions. It may assist parents to work through recurring difficulties and find a way forward that is more manageable for everyone involved.

It can also be a lower-cost option than contested litigation. Going to court can involve considerable expense, particularly where both parents are represented by lawyers. More importantly, litigation may not resolve the practical issues that keep causing parenting arrangements to break down.

Parenting coordination will not be the right approach in every matter. But where the central problem is ongoing conflict about how arrangements are implemented, rather than a single isolated breach, it may be worth considering.

Choose the remedy that fits the problem

There are broadly three pathways that may need consideration when parenting orders are being breached:

1. A contravention application, where the purpose is to ask the court to deal with an alleged breach of parenting orders.
2. An application to vary parenting orders, where the existing arrangements are no longer suitable or workable.
3. Parenting coordination, where a structured, practical process may help parents resolve the issues causing repeated conflict.

Each option has different consequences. The appropriate choice depends not only on what has happened in the past, but also on what needs to happen next for the parenting arrangements to work.

A parent should be particularly cautious about commencing a contravention application solely because they want the other parent punished. The court’s discretion, the possibility of changed orders, and the risk of further expense all need to be considered carefully.

Get family law advice early

If another parent is contravening parenting orders, obtaining early advice from a lawyer who practises in family law is important. Early advice can help clarify the available options, assess whether a contravention application is likely to be useful, and identify whether a variation or alternative process may better address the problem.

Bruce Provan has more than 34 years of family law experience and practises in areas including parenting disputes, property disputes, financial agreements and mediation. As a Nationally Accredited Mediator, he also brings a practical understanding of the value of resolving conflict where possible.

For support with parenting orders, parenting disputes and other family law issues, Page Provan’s family lawyers in Brisbane can provide advice tailored to the circumstances of the matter.

The key is to take a measured approach. A breach of parenting orders may justify court action, but the most effective outcome is usually the one that addresses the real reason the arrangements have stopped working.