Contraventions / Breaching Orders
A party is taken to have contravened a parenting order (whether it is an interim or final parenting order) if the party is bound by the order and has intentionally failed to comply with the order or the party has made no reasonable attempt to comply with the order.
When determining whether a parenting order has been contravened the court can make the following determinations:
- The contravention is alleged to have occurred but is not established;
- The contravention has occurred but there is a reasonable excuse for the contravention; or
- The contravention has occurred and there is no reasonable excuse for the contravention.
A contravention is alleged but not established
If the party filing the Contravention Application cannot establish that the other party contravened the parenting order the court can make an order for that party to pay some or all of the other party’s costs for responding to the Application.
There is a reasonable excuse for the contravention
If the party is found to have contravened the parenting order the next step is for the court to determine whether that party had a reasonable excuse for contravening the order. To determine this the court must be satisfied with the following:
- The party contravened the order because he or she did not, at the time of the contravention, understand the obligations imposed on her/him by the order; or
- The party believed on all reasonable grounds that the actions which led to the contravention were necessary to protect the health and/or safety of the child or the party.
If the court finds that a party had a reasonable excuse for contravening the orders the court must then consider making a further parenting order to compensate the party who did not spend time with the child as a result of the contravention. However, the court is not required to make this order, only to consider it.
There is no reasonable excuse for the contravention
If the court has found that a party contravened a parenting order without reasonable excuse, on the balance of probabilities, the court can make an order for the contravening party to complete community service, enter into a bond for a period of time and/or in accordance with specific provisions, for example, to attend counselling or a parenting program or a sentence of imprisonment until the order is complied with or for a specific period of time.
Varying parenting orders
Whether the contravention has or has not been established the court has the power to vary any parenting orders made. The court also has the power to make an order for the contravening party to complete a post-separation parenting program.
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