What Happens If Someone Breaches Parenting Orders?
By Hymans Legal — Family Law Experts in Melbourne
Introduction
I still remember the sinking feeling a close friend described when her ex-partner failed to return their child on time — not once, but several weekends in a row. They had court-ordered arrangements in place, yet the other parent simply ignored them. She asked the same question that so many parents in Melbourne face: “What happens if someone breaches parenting orders?”
If you’re in a similar position, know that you’re not alone. Parenting orders are legally binding decisions made by the court to protect the best interests of your child. But when one party doesn’t comply, it can create confusion, stress, and frustration. In this article, we’ll explore what it means to breach a parenting order, what steps you can take to enforce it, and how the courts in Victoria handle these situations.
Table of Contents
- Understanding Parenting Orders
- What Constitutes a Breach of Parenting Orders?
- Reasonable Excuses for Breaching an Order
- How to Report and Respond to a Breach
- What the Court Can Do About a Breach
- Penalties and Consequences for Non-Compliance
- Gathering Evidence Before Taking Action
- Best Interests of the Child: The Court’s Priority
- Can Mediation Help Before Court Action?
- Preventing Future Breaches
- Final Thoughts – Get Legal Help From Hymans Legal
Understanding Parenting Orders
Parenting orders are made by the Federal Circuit and Family Court of Australia under the Family Law Act 1975. They set out how children will be cared for after parents separate, including who they live with, how much time they spend with each parent, and how major decisions are made.
These orders can be made by consent (when both parents agree) or after a court hearing. Once in place, they are legally enforceable. This means that failing to follow them isn’t just a family dispute — it’s a breach of a court order.
In Victoria, parenting orders aim to promote the welfare and stability of children. When both parents comply, these arrangements provide clarity and predictability. But when one party fails to uphold their obligations, the court has mechanisms to intervene.
What Constitutes a Breach of Parenting Orders?
A breach occurs when someone intentionally fails to follow the terms set out in the parenting orders, without a valid reason. This can take many forms, such as:
- Not returning the child at the agreed time
- Denying access or visitation to the other parent
- Taking the child interstate without consent or court approval
- Failing to communicate important information about the child
- Making unilateral decisions about education or healthcare contrary to the orders
Even minor breaches, if repeated, can amount to serious non-compliance. The courts take these matters seriously because they affect the child’s stability and the rights of both parents.
Reasonable Excuses for Breaching an Order
Not every breach automatically results in penalties. The court recognises that certain situations may justify non-compliance. These are referred to as reasonable excuses. Examples include:
- The person believed on reasonable grounds that breaching the order was necessary to protect the child’s safety or wellbeing.
- The person did not understand that their behaviour would constitute a breach.
- Unforeseen circumstances, such as illness or emergencies, made compliance impossible.
However, these excuses must be supported by evidence. For instance, if a parent withholds a child due to safety concerns, they should be able to show proof (such as medical reports or police records) to validate their actions.
How to Report and Respond to a Breach
If you believe your ex-partner has breached parenting orders, the first step is to document everything. Keep records of missed visits, communication attempts, and any relevant incidents. You may then consider the following options:
1. Attempt Communication
In many cases, a simple misunderstanding can lead to non-compliance. Try to discuss the issue calmly with the other parent to clarify the situation. Sometimes, miscommunication about dates, times, or logistics can be resolved without legal escalation.
2. Family Dispute Resolution (FDR)
If communication doesn’t work, consider Family Dispute Resolution. This mediation process helps both parents discuss issues and work toward a solution. It’s often required before taking court action, unless there are urgent circumstances or risks of harm.
3. File a Contravention Application
If the breach continues, you can apply to the Federal Circuit and Family Court by lodging a Contravention Application. This formally asks the court to enforce the parenting orders and decide whether a breach occurred. The court will examine the evidence and determine the appropriate response.
What the Court Can Do About a Breach
When a Contravention Application is filed, the court may take several actions depending on the nature and severity of the breach. The possible outcomes include:
- Finding no contravention occurred
- Finding a contravention but with a reasonable excuse
- Finding a contravention without a reasonable excuse, and imposing penalties
In some cases, the court may order the parents to attend counselling, vary the parenting orders, or make new directions to ensure compliance in the future. The overriding concern remains the best interests of the child.
Penalties and Consequences for Non-Compliance
If the court finds that a person has breached parenting orders without a valid reason, there are several potential consequences. These can range from mild corrective actions to serious penalties, depending on the extent and impact of the breach.
1. Make-Up Time
The most common outcome is that the court orders “make-up time” for the affected parent. For example, if one parent missed scheduled time with their child due to the other’s non-compliance, the court can grant additional days to compensate.
2. Bonds and Undertakings
The court may require the person who breached the order to enter into a good behaviour bond or provide an undertaking to comply with future orders. This acts as a warning that further breaches could lead to harsher consequences.
3. Fines or Community Service
In more serious cases, the court can impose fines or require the person to perform community service. This is intended to reinforce the seriousness of court orders and the expectation of compliance.
4. Variation of Orders
If the court believes the existing arrangement is no longer workable, it may vary the parenting orders. This could include changing living arrangements or decision-making responsibilities.
5. Imprisonment
As a last resort, the court may impose a term of imprisonment for repeated or deliberate breaches. While rare, this penalty highlights the gravity of disobeying court orders.
Gathering Evidence Before Taking Action
Before filing a contravention application, it’s crucial to gather solid evidence. Courts rely on documentation to assess whether a breach occurred. Useful evidence may include:
- Text messages or emails showing communication about care arrangements
- Diary entries detailing missed visits or schedule changes
- Witness statements or affidavits
- Police reports (if relevant)
- Copies of the existing parenting orders
Keeping detailed, factual records can significantly strengthen your case and demonstrate your genuine commitment to following the court’s orders.
Best Interests of the Child: The Court’s Priority
Regardless of the circumstances, the court’s primary consideration remains the best interests of the child. This includes ensuring the child has meaningful relationships with both parents, unless doing so would expose them to harm.
When dealing with breaches, the court assesses whether enforcement or modification of the orders serves the child’s welfare. For example, if ongoing breaches cause distress or instability, the court may alter arrangements to restore balance and safety.
Can Mediation Help Before Court Action?
Yes, and in many cases, it’s highly recommended. Mediation provides an opportunity to resolve disputes without escalating to court. It’s often faster, less adversarial, and cheaper. Through Family Dispute Resolution (FDR), both parents can work toward a practical solution guided by a neutral mediator.
If an agreement is reached, it can be formalised into new consent orders. If mediation fails, the FDR practitioner will issue a certificate (known as a Section 60I Certificate), which allows you to proceed with a court application.
Preventing Future Breaches
Once a breach is resolved, it’s important to take steps to prevent it from happening again. Here are some strategies:
- Clear Communication: Keep written records of arrangements to avoid misunderstandings.
- Flexible Planning: Be open to reasonable adjustments for school events, holidays, or health issues.
- Legal Advice: Regularly review your orders with a family lawyer to ensure they reflect current circumstances.
- Update Orders if Necessary: If circumstances change, apply for a variation rather than relying on informal changes.
Consistency and clarity go a long way in maintaining harmony and ensuring your child’s needs remain the focus.
Final Thoughts – Get Legal Help From Hymans Legal
Breaching parenting orders is a serious matter under Australian family law. Whether you’re the parent affected by a breach or accused of one, it’s essential to understand your rights, responsibilities, and legal options. Acting quickly and seeking advice can make all the difference in protecting your relationship with your child.
If you’re in Melbourne or anywhere in Victoria and dealing with a breach of parenting orders, Hymans Legal can help. Their experienced family law team provides compassionate, expert guidance to resolve disputes and ensure compliance with the law.
Contact Hymans Legal today at 1300 667 116 or visit hymanslegal.com.au for professional advice on your next steps.