family law agreements by consent

Parenting order contraventions in the current Covid-19 pandemic

The Family Law Act 1975 (Cth) (FLA) provides for a parenting compliance regime so that where a parenting order is not complied with the other party has recourse. The Covid-19 pandemic has created a situation whereby parties may have difficulty complying with their parenting orders as state and international borders are closed and stringent restrictions and recommendations are being imposed on society’s movements. It is certainly a confusing and difficult time especially for parties juggling their changing obligations of working, schooling, isolation (self or enforced) and managing this with the other parties to the parenting orders.

contravention proceedings

Penalties for contravention of parenting orders

The possible recourse/penalties the court may impose in relation to contraventions include:

  • - Orders that the defaulting party must attend approved parenting courses;
  • - Order that time the party missed out on is made up;
  • - Good behaviour Bonds;
  • - Fines;
  • - Imprisonment

consent orders in family law

Likely sanction for first time breach

In the case of a first time breach for a less serious contravention, the court will often order the defaulting party to attend an approved parenting course. The purpose of this course is to educate the offending party about their obligations under the orders and to discourage further breaches. The court may also make an order to compensate for any loss suffered as a result of the breach, including additional periods of time to be spent with the children in compensation of any period lost as a result of the breach. The court may also order the offending person to enter into a bond, and fine that person if there is any failure to enter into the bond.

Sanctions for serious contraventions

The court has further powers in relation to serious sanctions such as fines and imprisonment, although these sanctions are only ever imposed for a first time breach if the breach is of a sufficiently serious nature and the imposition of such a penalty is warranted in the circumstances

Defence to contravening parenting orders

‘reasonable excuse’

A defence to contravening a parenting order is that the contravening party had a ‘reasonable excuse’. The reasonable excuses available are as follows:
  • The person did not understand the order and what was required of them.
  • The person contravened the order in order to protect the health and safety of a person including the child and the time in which the child did not spend/communicate with the other person was not longer than required to protect that health and safety.

  • The onus of proving that the contravening party had a reasonable excuse lies on the contravening party to prove to the court that they did in fact have a reasonable excuse. An issue that may arise in the current Covid-19 pandemic is whether there are genuine reasons for non-compliance versus parties taking advantage of the current state of affairs and using it as an excuse for non-compliance.

    What to do when a party has contravened a parenting order?

    We recommend that you contact us immediately in the event that any of these issues mentioned apply to you such as if a party has contravened a parenting order, if you are unsure as whether you are reasonably contravening a parenting order or where you need assistance defending a matter against you. In urgent cases we are able to file a contravention application with the Federal Circuit Court of Australia to deal with the issue as soon as is possible. In non-urgent cases there are a number of pre-action steps the court would expect a party takes prior to filing a contravention order such as mediation in certain cases. It is prudent to commence these steps as soon as is possible to so that a party may then file proceedings in the Federal Circuit Court of Australia if required. It may be the case that the parties can also come to an agreed arrangement via negotiations and or mediations and apply to the court to have that agreement made into an enforceable order.

    The Family Court of Australia and Federal Circuit Court of Australia have confirmed that they intend on continuing to operate through the Covid-19 pandemic. Chief Justice Alstergren of the Family Court of Australia and Federal Circuit Court of Australia confirmed in a recent media release that the courts remain open and that the courts are using technology such as Microsoft team, telephone, making orders in chambers, electronic filing and electronic mediations to ensure matters continue to be dealt with in an appropriate fashion especially in regards to parenting matters during this period of the Covid-19 pandemic.

    We are available to help you today. Contact our offices on 1300 148 110 to book a conference with us.