Breaching family court orders

A parenting order is an order issued by the court that provides for the parenting arrangements of a child.Once a parenting order is issued all parties concerned are required to comply with the order.

The order remains in force until a new order is issued by the court or the parties executed a parenting plan. A breach of a parenting order can result to penalties.

• A parenting order is one that provides for any or all of the following:
• Who the child will primarily live with;
• Time that the child will spend with each parent and other relevant persons like the grandparents;
• Parental responsibility of each parent;
• How the child will communicate with the parent they do not live with and with other relevant persons in the child’s life;
•  Anything that is catered to the care, development and welfare of the child.

Section 70 NC of the Family Law Act 1975 enumerates the ways by which a parenting order is contravened. Under the said provision of a law, a parenting order is contravened when the person who is bound by the order intentionally failed to comply with the order; made no reasonable attempt to comply with the order; intentionally prevented compliance with the order by a person who was bound by it; or aided or abetted the contravention of the order by a person bound by it. 

A reasonable excuse defence

A person can defend himself against a contravention charge by interposing that there was a reasonable excuse for the breach of the parenting order. A reasonable excuse defence is defined under Section 70NE of the FLA.

Penalties for breaching a parenting order

The imposition of penalties for a breach of a parenting order will greatly depend on the seriousness of the contravention. The Court will exercise its discretion in deciding the penalty after finding that indeed there was a breach of a parenting order without reasonable excuse. The Court may order the:

• Payment of a fine;
• Posting of a bond;
• Payment of legal costs or payment of expenses incurred by the other party;
• Imprisonment of respondent;
•  Compensation of time that was supposed to be spent with a child;
• Variation or amendment of the primary order;
• Respondent to render community services;
• Respondent to attend a post-separation parenting program.

Once a party finds it difficult to comply with a parenting order it is strongly advised that he immediately seek legal advice on how to have the order changed. The party may apply to have the parenting order changed by executing a new parenting plan with the other party or by applying to the court for the issuance of a new parenting order.  

A serious and deliberate breach of a parenting order constitutes contempt of court.

The penalties may range from imposition of fines to imprisonment. Even court officials can file contempt of court proceedings, not a party to the case. However, this being a criminal offense only behaviour that constitutes serious and deliberate refusal to obey court orders or malicious behaviour in court should be the subject of contempt of court proceedings.