Breached an order? Not if the variation was agreed
Parents can agree to vary the terms of existing court orders which relate to children.
If both parents have agreed to a variation, prior to the time of compliance, then a parent cannot be in breach of the original order.
A recent case demonstrates the point.
The father filed a Contravention Application alleging that the mother had breached orders relating to changeover arrangements.
The first alleged breach related to allowing the father to collect the child on a Wednesday at 2.00pm. However, at 1.21pm on the relevant day, the father sent a text message to the mother saying “As per your last message, I will pick the child up this Friday at 2pm”. The Judge said that the mother had not breached the order because the father had agreed to vary the order prior to the time compliance was required.
The second alleged breach related to the location of changeovers. The orders were confusing in that they said that changeovers would take place at a nominated coffee shop, but from 1 January the changeovers would take place at the child’s school. The confusion arose in the period between 1 January and when the child actually started school later in January, so the mother went to the school and the father went to the coffee shop.
In relation to this alleged breach, the Judge said that there were two possible interpretations, so the mother could not be in breach of the orders.
It is important to ensure that your court orders are correctly drafted so that there is no ongoing confusion and dispute about the interpretation. If you want to change the terms of an order, you should get the other parent’s consent in writing (email or text message is fine) before the time for compliance with the order, otherwise you will be in breach.
