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My ex-partner isn't following the court orders about our children What can I do?

Contravention of parenting orders

What is a “contravention?”

Contravening a parenting order means disobeying the parenting order. For example if a person:

  1. does not comply or makes no effort to comply with the terms of the parenting order; or
  2. deliberately prevents or tries to prevent another person who is bound by the order from complying with the order; and
  3. does not have a reasonable excuse for contravening the order; (See the What is a reasonable excuse? section)

then they may have breached or contravened a court order.

Most parenting orders have terms about where the children will live and who they will spend time with. Therefore a contravention of the orders might occur if a person refuses to deliver or return the child to a person with whom the child lives or spends time with. For example, if there are orders for a child to see their grandparents every second Sunday and the father refuses to let the child go, then he may be contravening the parenting order.

What happens if a parenting order has been breached?

If the Court finds that an order has been breached, depending upon the seriousness of the contravention, the Court has the power to make a variety of orders. For example, the Court could make an order for:

  1. make up time to compensate for the time that the person missed;
  2. a person to attend parenting education programs such as a post separation parenting program;
  3. a person to enter into a bond with the Court to do certain things for a period of up to 2 years. This may involve attending appointments for counselling, or being of “good behaviour”. Good behaviour could include making sure that a person complies with the court orders in the future;
  4. a fine to be imposed;
  5. imprisonment for up to 12 months; and/or
  6. the party who breached the orders to pay the other party’s legal costs.

In addition, the Court can decide to vary or change your original parenting order as part of the contravention proceedings. This can be done even if you did not apply for the Court to change the order. Often the first thing the Court will do when a breach has been proved is assess whether an order needs to be varied to prevent any further problems in the future.

The most common outcomes in contravention applications are orders for make up time and for the breaching party to attend a parenting course, especially the first time a breach of the court orders is found to have taken place.

Who is involved in contravention proceedings?

The person applying for a contravention order is called “the applicant”. Any person that has previously been a party to a parenting order is able to apply to the Court.

The “respondent” to a contravention application is the person alleged to have contravened or breached the parenting orders. This will usually be the other parent.

Should I be worried about court costs?

The Court is required to consider whether to make an order for the applicant to pay the respondent’s costs in the following circumstances:

  • The contravention application is dismissed because the alleged breach could not be proved.
  • A respondent successfully argues that there was “reasonable excuse” for contravening the order.
  • There have been contravention applications made by the applicant in the past which have failed.

The Court must consider making a costs order against the respondent if it finds that there has been a contravention of the orders.