Parenting orders are orders made by the Federal Circuit and Family Court of Australia in relation to parenting arrangements for the children of separated parents. They can be made with consent of both parties or after a court hearing or trial. Parenting orders must be complied with by both parties. Contravention of parenting orders is a matter for the court to deal with, not for individual parents to action.
This blog looks at a specific case where both parents engaged in "tit-for-tat" behaviour after initial orders were not complied with, rather than initiating a contravention application for the court to decide the matter of non-compliance.
What is a contravention application?
Once a parenting order is made for a child, it is expected to be complied with. When compliance becomes an issue or the other party has breached the orders without a reasonable excuse, a party may institute contravention proceedings by way of an application.
The Federal Circuit and Family Court have now adopted a national contravention list which operates nationally and electronically. Accordingly, the court envisages that a final hearing date can be allocated in a relatively short period from the filing date. Therefore, you can be assured that any contravention of orders will be dealt with quickly and cost-effectively.
Case review - filing of a contravention application
In the case of Bircher & Bircher, the children's father filed a contravention application with the Federal Circuit and Family Court of Australia. Mr Bircher asserted that the mother had withheld a child from spending time with him (pursuant to parenting orders made in 2019) on a number of occasions. For the purposes of this blog, the relevant contravention concerns the January 2021 school holiday period where both parties had withheld the child from the other.
A summary of that specific contravention at the first instance is as follows:
- The parties had three children together, aged 15, 13 and 12.
- The court made parenting orders in November 2019.
- The father filed a contravention application in May 2021, alleging that between 1 January 2021 and 8 January 2021, the mother contravened the parenting order by failing to make one of the three children available to spend time with him during the school holidays. The mother retained that child in her care for a period of seven days.
- The mother's defence was that she retained that child in her care because she alleged the father had, without justification, previously withheld the same child from her between 4 December and 11 December 2020 (a period of seven days), in contravention of the parenting orders.
- The mother did not, at that time, file a contravention application but rather, elected to withhold the child at a future time to 'even the score'.
- At paragraph 11 of the judgement, the court found that the mother's behaviour of "evening the score" did not constitute a reasonable excuse for her to contravene the terms of the parenting order.
- The mother was found to have breached the parenting order and fined.
- The initial judge made an order for compensatory time between the child and the father to occur at the end of the Term 2 school holidays in 2021.
The mother appeals the court's finding
After the father was successful in his contravention application, the mother appealed the case. The Federal Circuit and Family Court (Division 1) dismissed the appeal by the mother and made the following comments:
"Even if the father contravened the parenting orders initially by retaining the child until 11 December 2020 the lack of compliance of the orders (by the father) does not entitle the mother on the facts of the case to over-hold the child as she did until 8 January 2021.
The Federal Circuit and Family Court (Division 1) further noted that the appropriate course of action or remedy for the mother would be to invoke the court's power by making an application for the father's previous (December 2020) contravention rather than engage in self-help or, for want of a better term, "tit for tat".
The court went to great lengths to justify this.
".to accept such an argument would lose sight of the fact that parenting orders regulate the actions of parents for the benefit, protection and security of the children."
"On a more general level, self help is not open to citizens when they believe another citizen has breached a court order or legal rule: the remedy always lies in an application to the courts to adjudicate upon such issues according to law."
Best interests of the child are paramount
As with all parenting matters, the best interests of the child and how they are affected is the primary consideration of the courts. The actions of both parents, in this case, appear to have been for the benefit of the parents, not the children.
The Federal Circuit and Family Court (Division 1) pointed out to the parties that their 'tit-for-tat' behaviour resulted in double the disruption of the court-ordered parenting arrangements, deprivation for the child who was withheld and negative impacts for that child's siblings.
Get help with your parenting arrangements
This case clearly demonstrates that it is not up to one of the parties to even the score if the other has breached or failed to comply with a parenting order. The parents may have reached an appropriate resolution to the breach, either amicably between themselves or with the aid of mediation. However, it appears they chose to harm the other parent, disregarding the best interests of the children.
If you are in a similar position, we strongly discourage you from engaging in this 'tit-for-tat' behaviour or taking matters into your own hands. Rather, it is recommended that you obtain legal advice in relation to your family law issues, including any need to file a contravention application for non-compliance with parenting orders.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
