Wiltshire News

Tuesday, 4 October 2011

We are often consulted about whether breaching Parenting Orders can lead to a Term of Imprisonment.

This question recently came before the Family Court of Australia in the case of Rossi & Commissioner of Police [2011] FamCAFC 162.

In this case a mother appealed against the severity of a sentence of imprisonment imposed on her after being found guilty of three counts of contempt pursuant to s 112AP of the Family Law Act 1975 (Cth). The Appeal was dismissed and the Trial Judge’s Order was upheld.

The Trial Judge had found in this case that the mother had knowingly contravened three parenting Orders and in so doing demonstrated a flagrant disregard for the Orders of the Court. The facts of the case were as follows:

• On 7 August 2008, the mother and father agreed on Consent Orders which provided for a shared care parenting arrangement, with the child to live with the father for nine days and the mother for five days, in each fortnight.

• On 8 September 2008 the child did not attend school and on 9 September 2008 the Court made an Order for the Recovery of the child to the father.

• On 15 September 2008 the Court Ordered that the child live with the father.

• On 29 January 2009, the child was found in Melbourne with the mother and returned to the care of the father in Western Australia.

• No charges were brought against the mother in relation to her actions in removing the child on that occasion.

• On 9 February 2009 the Court Ordered that that only the father or his wife be permitted to remove the child from school.

• A further Order was made on 9 April 2009 preventing the mother from approaching the child, his school or any place she knew the child would be without the consent of the father or an Order of the Court.

• On 9 November 2009, the mother went to the child’s school at the morning beak and took the child away.

• The child was later found with the mother in Adelaide. When the police entered the premises where the mother and child were, the child was found hiding in a shower recess. The mother had bleached his hair and her own, which the Trial Judge found was an attempt to avoid being detected.

Her Honour Justice Crisford found that the mother had knowingly contravened the three orders and in so doing demonstrated a flagrant disregard for the Orders of the Court. Her Honour observed that the breaches were very serious.

Her Honour identified that in sentencing for the breaches she must impose a sentence that operated to punish the mother for the offences and which preserved the position of the Court to ensure that Orders made are not disobeyed.

It should however be noted that a breach of a Court Order does not always lead to a Term of Imprisonment.

As example is another recent case of Bertram & Bertram [2011] FamCA 375. In this case the mother was found to be have contravened the Court Order, without a reasonable excuse. The facts of this case were that the mother:

• Did contravene the Order which provided for the children to have telephone communication with the father.

• Did contravene the Order providing for communication between the parents to personal telephone numbers only for matters of an urgent nature.

• Did contravene the Order providing for communication in a communication book.

• Did contravene the Order providing for the parents to ensure whenever possible that the children attend their commitments when in their respective care.

Having established that the mother had committed the above contraventions, without reasonable excuse, His Honour Justice Forrest considered whether this was a case involving a “serious disregard”. His Honour referred to the following passage from the case of Elspeth & Peter and John & Peter [2007]:

“What seems to be the common thread is that the more serious sanctions should only be invoked if there is a persistent disregard of an obligation or a clearly wilful and deliberate attempt to resist carrying out an order. Mere passivity on a first breach does not appear to be sufficient to attract more stringent sanctions...”

His Honour concluded having regard to the facts of the case before him that the appropriate Order in the circumstances was as follows:

“That each party shall attend and complete a post-separation parenting program within six months of the date of this order and provide the other party with evidence of completion of such course. “

The above cases are examples of how the Remedies available for Contravention can vary depending on the facts of the particular case and the seriousness of the breach. If you have any queries in regard to the above, or Contraventions or in respect of any family law matter, please do not hesitate to contact us at Wiltshire Lawyers.


Anton Richardson
Senior Family Lawyer and Mediator
Wiltshire Lawyers

Liability limited by a scheme approved under Professional Standards legislation.

This article should not be considered as either formal or informal legal advice.  This article should only be read as general information relating to the particular subject matter it is written about.  The information may or may not apply to the reader's particular circumstances. Wiltshire Lawyers only purport to provide legal advice to clients who have provided detailed instructions and who have formally retained our services.