Multiple breaches of a Parenting Order? Go directly to jail, do not pass go

By Jessica Coles-Black

In the recent Family Court decision of Kalant & Jordain [1],a mother was ordered to a term of 14 days imprisonment for breaching interim parenting orders. How did this happen? How can you ensure this does not happen to you?

Ordinarily, contraventions of parenting orders do not lead to jail terms. There are several penalties available to a Judge, so why did this Mother go to jail?

The Mother’s History

The Mother had a history of contravening interim parenting orders.

On 25 September 2020, the Mother was placed on two bonds. The first bond was for a period of six months relating to seven of her previous contraventions. Whilst the second bond was a period of two years, relating to three previous contraventions by the Mother.

Importantly, for two of the Mother’s contraventions she received a concurrent 14-day term of imprisonment. This term of imprisonment was suspended on the condition that the Mother entered the above-mentioned bond.

What led to her imprisonment?

On 12 March 2021, the Judge found the Mother contravened interim parenting orders a further three times as follows:

  1. Contravention 1 – the Mother failed to make the child available to the Father on 20 January 2021; and
  2. Contravention 2 – the Mother failed to attend the court appointed Family Report practitioner on 25 January 2021;
  3. Contravention 3 – the Mother failed to make the child available to attend the court appointed Family Report practitioner.

As a result of the Mother’s further contraventions, the Judge had to consider if any of these new contraventions constituted a breach of the Mother’s bonds, and if so, should the Mother’s suspended jail term be terminated?

The purpose of contravention proceedings is not to punish the Mother or to deter others, but rather to direct the Mother to comply with orders in the future.

Why did the Judge sentence the Mother to jail?

The Judge found that whilst Contravention 1 did not appear on its face to be a serious breach, it was in the context of the Mother’s history of contraventions and occurred whilst she was subject to a bond.

The Judge also found that Contravention 2 and 3 were the most serious contraventions as they resulted in the parties’ trial being delayed.

The Judge found the Mother breached the terms of her bond by her behaviour in Contravention 1. As a result, the Judge ordered the Mother’s suspended sentence be terminated and for the Mother to serve an immediate 14-days of imprisonment for her previous contraventions, which were subject to the now breached bond.

Turning to the penalty for Contravention 1, the Judge then ordered the Mother to be sentenced to 14-days suspended imprisonment term, subject to her entering into a third bond for a period of two years.

The Judge found that the current contraventions only warranted a term of imprisonment to secure the Mother’s future compliance. It was not necessary to take any further action in relation to Contravention 2 and 3.

The Judge has the discretion to sanction terms of imprisonment if they find, beyond reasonable doubt, that all other sanctions are inappropriate for future compliance.

How can you prevent this happening to you?

Firstly, do not contravene parenting orders unless you have a reasonable excuse to do so. A reasonable excuse essentially only applies if you believed you had to breach the orders to protect the health and safety of yourself or the child. In these circumstances, you can only breach the orders for as long as it was necessary to protect the health and safety of yourself or the child.

If you are subject to a bond, do not breach parenting orders. The Judge will consider your history of non-compliance when making orders.

If you need advice in relation to contravention proceedings or parenting matters, including initiating or ongoing litigation, please contact Rowan Skinner & Associates Lawyers to arrange a complimentary 15-minute consultation.

[1] Kalant & Jordain (No. 3) [2021] FamCA 191 (9 April 2021)