Family orders, regardless if they are interim or final, are legally binding and therefore must be followed by all parties. Breaching a family order constitutes serious legal offence, unless the offending party has a reasonable excuse for the breach.

If a party violates an order, the other party has several options to ensure that the order is enforced or he or she can change the provisions, in case the existing order is no longer serving its purpose. One of the available options is filing an Application in a Case to change certain items in the order. Another option is filing a Contravention Application or an application for family mediation in an attempt to settle the disagreements between two parties.

How a Parenting Order Is Breached

A parenting order is breached if a party commits any of the following:

• Fails to comply the order with the intentions to do so
• A reasonable attempt to comply with the order was not executed
• Intentionally prevents compliance of the order by the person or party bound to comply it
• Aids a person to breach the order who is bound to comply it

Reasonable Excuse for Breach of Parenting Order

The Family Law Act states that a breach of parenting order has reasonable excuse if the breach happened under the following circumstances:

• The breach was done to protect someone’s health or safety
• The person has no clear understanding that the order was being breached at the time the breach was being committed. This is stated in the Family Law Act, Section 70NAE.
• The breach did not last longer than the necessary period to protect the health and safety of the person committing the breach.

What to Do In Case of a Breach

If the breach is minor, both parties can talk about it and get into a Family Dispute Resolution (FDR). FDR is provided by the Family Law Act, Section 601. However, if the breach is frequent, this may be an indication that the order is not working and maybe requiring an update. Either of the parties can apply for an order change before the court. If both parties agree to the need for a change in the order, they can sign a Parenting Plan where the necessary changes are indicated and applied.

Contravention Application

In case an agreement and a Parenting Plan do not materialize, the complaining party can file for a Contravention Application. The application must be accompanied by an affidavit indicating the details of the breach and a Section 601 certificate.

In case of an exemption of Section 601, an affidavit should also be submitted indicating the reasons why an exemption should be granted. The contravention application will be successful if the court is satisfied based on the following merits:

• The circumstances involving the breach
• Whether the breach happened on a single incident or repeatedly
• The reasons behind the breach of the order
• Whether the breach was minor or major

Court Decision

In the event that a contravention is proven and established, the court can order any of the following:

• Arrangements to resume the previous order
• Compensate a party for lost time with the child or children
• Change an existing order
• For a party to attend and complete a Parenting Program
• For a party to pay a portion or the full amount of legal costs
• For a party to pay a portion or full amount incurred by the other party resulting from the breach
• Fine or a period of imprisonment

In addition to the aforementioned possible punishments, the court may also dismiss any attempts of either or both parties to apply for further parenting orders.

Take Away Ideas

As much as possible, it is always advisable for both parties to settle disputes between themselves or with the minimal intervention of a family lawyer or mediator.

Settling the matter between parties is also a preferable option since final orders were already issued by the court and the latter will no longer accommodate requests to change the orders, unless any of the parties can present a proof that a significant change of circumstances have taken place after the orders were made.

Also, the court will not be willing to take action on a Contravention Application unless it was proven that the alleged breach was serious and repeatedly conducted.