contravention proceedings family law
When a parent violates a parenting order, the other parent can apply for a contravention order. The person who applies for the order is known as the applicant and the person accused of breaching the order is called the respondent.
The application asks a Family Law Court to impose a remedy for the violation. The remedy might involve clarifying the order, encouraging the parent who breached the order to obey it, requiring the parent to attend parenting classes, or punishing the parent.
Before the court decided whether a contravention order is necessary, it will hold a hearing. This article explains what happens at that hearing.
Varying the order
A judge will often decide to change (or “vary”) the order after listening to the parents explain the problem. In those cases, the court might act informally without taking the evidence required in a contested hearing.
If the parents simply disagree about what the order means, the judge might vary the order by changing the language to make the intent of the order more clear.
If it is clear to the court that a change of circumstances has made it unreasonably difficult or unfair for a parent to obey the order, the court might vary the order in a way that makes it easier for the parent to comply with its terms. For example, the court might change the time at which a parent must return a child to the other parent if that will help the parent return the child on time.
Admissions and reasonable excuses
If the parent admits that he or she did not follow the order, the court will give the parent a chance to explain why the order was breached. If the parent provides a reasonable excuse, the court will decide that no contravention occurred. The court might, however, decide that varying the order is necessary to prevent breaches in the future.
When the dispute between the parents involves conflicting reports about whether or why the order was breached, the court will probably need to resolve the factual dispute by taking evidence. The applicant will need to prove:
- a parenting order existed
- the other parent knew about the order
- the other parent disobeyed the order.
Much of the evidence to prove those points will be presented by affidavit. Unless the other parent agrees that everything in the affidavits is true, the applicant and any supporting witnesses will need to testify and be cross-examined.
After the applicant presents evidence, the court will decide whether that evidence is sufficient to establish that a contravention may have occurred. If the applicant passes that hurdle, the respondent has the opportunity to present evidence.
The respondent may present evidence that no contravention occurred. The respondent may also present evidence to establish the existence of a reasonable excuse for any contravention that did occur. Like the applicant, the respondent and his or her witnesses can be cross-examined.
Witnesses will only be permitted to give testimony that is relevant and admissible under the rules of evidence. Since those rules can be complex, it is often helpful to have the guidance of a lawyer at a contravention hearing.
The court’s decision
After evidence is taken, both parents will have an opportunity to make arguments about what the court should do. Those arguments are known as “final submissions.” The court will then decide whether to enter a contravention order and, if so, what the contents of the order will be.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.