Parental Alienation: how to overcome non-compliance of parenting orders

27 JUL 2022


Parenting Contravention Applications

The recent merge of the Federal Circuit and Family Court of Australia (FCFCOA) in September 2021, exists as one entry point for parenting disputes to be dealt with by the Court. With the implementation of parenting orders by this Court, if a party breaches such orders penalties follow. Under division 13A of part VII of the Family Law Act 1975 (Cth), this part of the Act determines breaches of parenting orders, whereby a party brings forward a Court application against the contravening party for non-compliance of the orders.

Once it is alleged a party has breached the parenting orders under division 13A, before filing a party must truly consider the results they want to achieve by filing such application, if a party doesn't want the other party punished for contravening such parenting orders they must seek alternative remedies. When filing a contravention application it must be filed alongside an affidavit that sets out the alleged breaches and facts with a valid section 61I certificate or affidavit of non-filing setting out that there has been an attempt at mediation to resolve the matter.

The Court has established a national contravention list to improve how Court order breaches are dealt with. This saw Registrars who trial gated and assessed contravention matters before it is allocated to a Judge for determination. A Registrar also may facilitate a without prejudice conference in attempts to resolve the breach, making sure the parties understand the orders and obligations they owe pursuant to those orders. As a contravention application is based upon civil standard to prove the breach has occurred, evidence brought forward must be convincing to meet the standard of proof of such allegations of serious breach.

Once a contravention application is heard before a Judge who has the power to impose penalties on parents who intentionally fail to or without reasonable attempt to comply with parenting orders. The contravening party has the opportunity to argue the reasons why they contravened such orders. They may not have understood their obligation, or contravened the orders to protect the health and safety of the children. After the 2016 reform of subdivision 13F, saw compensation and legal costs awarded against contravening parties. Outcomes to breaches include make up time for the lost time, amending the orders made previously or entering into a bond to avoid future breaches. Bonds can include compulsory requirements for parties to attend family counselling and family dispute resolution or money fines involved. For more serious breaches of parenting orders by contravening parties they can face community service, or imprisonment as seen in the case of D&C (2004) FAMCA 814.

Research found on Contravention Applications

The outcomes of a contravention application raises concerns about the negative effects on children being left without a parent who plays an important role in their upbringing. There is strong support within the community for existing parenting orders to be altered compared to endorsing imprisonment on the contravening party. Also it is believed that instead of the enforcement of a fine or imprisonment, the most appropriate and efficient option is to encourage parenting programs which creates a positive response to avoid future breaches.

Overall, parenting disputes that are heard before the FCFCOA have characteristics of high level of conflict and/or safety concerns. Once a parent dispute has been resolved by either a Judge or dealt with between the parties, the parenting arrangement is formally written into parenting orders. Division 13A of part VII of the Family Law Act 1975 (Cth) deals with breaches of parenting orders, when a party brings forward a contravention application against the contravening party. Non-compliance usually arises from safety concerns, impractical parenting orders or orders that are in favour of one parent. It is too early to determine if the national contravention list is an effective mechanism in dealing with contraventions but our Family Law team across our offices have experience in dealing with contravention applications with parties who fail to fulfil their obligation under such orders and are equipped to achieve the best outcome for you .

Get in touch with one of our family law staff today to assist you with your family law dispute.

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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