Child not returned? What is a contravention?
If a parent intentionally fails or makes no reasonable attempt to comply with a parenting order, the court can make a finding that they have contravened the order. Where it is found that an order has been contravened, the court has the power to make a variety of orders depending upon the seriousness of the contravention. Such remedies may include enforcing the parenting order, providing make up time to compensate a parent for time missed, imposing a fine against the contravening parent or potential imprisonment.
A person is found to have contravened an order, where they have either:
- intentionally failed to comply with the order; or
- made no reasonable attempt to comply with the order.
When drafting a contravention application, it is important to specify whether you say the other party either intentionally failed to comply or made no reasonable attempt to comply.
An applicant in a contravention matter must show the court that:
- An order exists (whether an interim or a final order); and
- The respondent has contravened the order.
You must state, clearly and concisely, the facts you rely upon to demonstrate the contravention. If you allege that more than one order has been contravened, and contravened on more than one occasion, deal with each alleged “breach” separately. Making one statement to cover all alleged contraventions, is not advisable.
A contravention may be excused where there is a reasonable explanation for breaching the order, for example, where the non-compliance was necessary to protect the health and safety of the child or themselves.
What are you seeking to achieve?
The law on contravention of orders is complicated and we recommend you obtain legal advice before making an application to the court. It is also important that you consider carefully what it is that you are seeking to achieve by bringing a contravention application and if only to punish the other parent, how this may affect your co-parenting relationship.
The court has expressed an unwillingness to entertain petty and unwarranted claims for contravention of parenting orders.
In a recent decision, the court found that the mother had contravened the parenting order without reasonable excuse, by not ensuring that the child was available for telephone contact with the father and for failing to give the father the required 60 days’ notice of the child’s proposed international travel. Despite finding against the mother, the court held that the father’s application was “petty and unwarranted” and subsequently, the court did not impose any sanction against the mother and instead ordered costs against the father.
If you are concerned about your obligations under a parenting order, or if your contact time with your child has not been facilitated, one of our experienced family lawyers can assist you. Call our office on (07) 3221 4300 or fill out our booking form online.