Breach of a parenting order

Where your former partner is in contravention or breach of a parenting order, what can you do?

You may have obtained a parenting order for living arrangements for your children but then find that your former partner has committed a breach of a parenting order, whether in failing to care for the children over the times provided in the Order or otherwise.

This can be a very frustrating situation, especially where there were difficulties involved in obtaining the order in the first place. What can you do in those circumstances?

In this week’s blog and next week’s blog, we will consider various different types of contravention or breach of a parenting order and how the Court addresses them.

contact our family lawyers Brisbane and family lawyers North Brisbane at LGM Family Law for free initial advice over the phone if you need help with this situation. We also offer fixed fee initial consultations. Read on for more information right now….

Where a contravention or breach of a parenting order is alleged by one party but not established

One party (the “applicant”) may allege that the other party is in contravention or breach of a parenting order but depending upon the evidence produced, the court may find that the alleged breach is not proven. Under s70NCB(2) of the Family Law Act (1975) (“Act”), in this situation, the Court may make an order for costs against the applicant. Further, the Court must consider making such a costs order against the applicant if there has been a previous contravention/breach allegation, and either the court was not satisfied that there had been a contravention/breach, or it was satisfied but it did not make an order for either variation, compensatory time, costs or post-separation parenting program attendance, or the court did not impose a penalty or a sanction.

The rationale behind the threat of cost orders in these types of cases seems to be trying to deter parties from making repeated contravention applications alleging breaches of an order by the other party.

Where there is a contravention or breach of a parenting order but a reasonable excuse exists

An applicant may be able to show the Court that the other party is in contravention or breach of a parenting order but that other party may be able to prove that he or she had a reasonable excuse for the contravention or breach. Under s70NBA of the Act, in this situation, the court must consider making an order for compensatory time under s70NDB for the person who did not spend time with a child provided for in orders as a result of a contravention or breach by the other person and may in fact make such an order. Section 70NDB provides as follows:

“(1) If:

(a) the primary order is a parenting order in relation to a child; and

(b) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period);

the court:

(c) may make a further parenting order that compensates the person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention; and

(d) must consider making that kind of order.

(2) The court must not make an order under paragraph (1)(c) if it would not be in the best interests of the child for the court to do so”.

It should be noted that, as s70NDB(1)(c) clearly states that a compensatory order is a parenting order, by s 60CA of the Act,  the court must regard the best interests of the child as the paramount consideration in making any order for compensatory time. You should not therefore assume that compensatory time will automatically be awarded by a Court even where a contravention or breach by the other party is established.  

Reasonable excuse for breach of a parenting order 

Section 70NAE(5) of the Act provides that:

A person (the “respondent”) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

      (a)  the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

       (b)  the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

 Parent withholding unwell child on doctor’s advice that child should rest

In the case of Childers and Leslie [2008] FamCAFC 5, on appeal, the Full Court of the Family Court of Australia found that the two above conditions must be met for a person to have a reasonable excuse to withhold a child where a parent was in breach of a parenting order.

 In that case, the father was entitled by court order to spend time with his daughter, aged 4, on a Saturday. The child’s mother did not permit that to occur. She claimed that she had a reasonable excuse in that the child was unwell and on advice from a medical practitioner, the child was required to rest and partake in minimal activity for a few days. The father was a doctor. He said he could care for the child. The father filed a contravention application. The mother argued that the doctor’s advice coupled with the fact that the child expressed a wish to be cared for by her mother constituted a reasonable excuse for contravening the court order.

At the trial in the lower court, the presiding Federal Magistrate found that the mother had an excuse for the child not attending with her father on the weekend in question and dismissed the father’s application. On appeal however, the Full Court determined that the Federal Magistrate had erred by not making a finding that keeping the child at home was necessary to protect the health of the child. There was no finding by the Federal Magistrate that keeping the child at home was necessary to protect the child’s welfare; nor was there any finding about any belief of the mother about that.

Wish of the child to stay home with mother

The Full Court seemed to consider that the wish of the child to stay at home with the mother should have been considered by the trial judge in the context of the impact that denying that wish would have on the health of the sick child. The trial judge had not made that assessment and in those circumstances, the Full Court queried why the trial judge had given apparent weight to such a young child’s wish which the Full Court noted as not a factor that would normally assist a claim of excuse for contravention of an order that the child spend time with the other parent.

The Full Court concluded that the mother did not believe (or if she did, that her belief was not held on reasonable grounds) that withholding the child from the father was necessary to protect the child’s health.

The Full Court noted that compensatory time is not to be ordered by way of retribution, without regard to the child’s best interests. The event that led to the litigation had occurred almost a year since the time of the appeal. The father did not lead any evidence showing what other arrangement the father proposed. The Full Court did not have any evidence of what, if any, interference compensatory time might cause in the child’s current activities. The Court was therefore not satisfied that any order should be made compensating the father for the time lost by reason of the mother having withheld the child and being in breach of a parenting order.

Where a parent withholds a child incorrectly believing the other parent is not  available to spend time with the child

Let’s consider another example of parenting orders which provide for a child to be with the mother on a weekend. The mother has led the father to believe that she would not be available on the weekend to spend time with the child. However, the father’s belief is incorrect. The child is not made available and the mother subsequently brings contravention proceedings. The court finds on the facts that the father has contravened the order but was satisfied that he had a reasonable excuse, believing as he did that the mother would not attend for time with the child on the weekend in question.

Under s70NDB(1)(c) of the Act, the court makes a further parenting order compensating the mother for the lost time with the child.

Whilst this may seem unduly harsh on the father who established a reasonable excuse for breach of a parenting order and where the court was satisfied that it was not his fault that the child had not spent the weekend with the mother, the justification for providing compensatory time in these circumstances can be found in the Explanatory Memorandum to Family Law Amendment (Shared Parental Responsibility) Act 2006 (at [279]) which provides:

“… This is appropriate given that the original parenting order for contact was made in the best interests of the child, that contact with both parents is an important aspect of ensuring that a child maintains a meaningful relationship with both parents and that parents are able to fulfil their parental responsibilities in relation to their child”.

If you need assistance concerning a contravention or breach of a parenting order, contact our Brisbane family lawyers and family lawyers Northside at LGM Family Law for advice particular to your circumstances and move forward with us to resolve your matter.