Whenever parenting orders are made by either the Family Circuit Court or Family Court, there is an expectation that all parties must follow the orders.
For example, a parent has a positive obligation to encourage a child to spend time with the other parent (if this is specified in the order).
In Parenting Orders, there are frequently issues with failure to attend, failure to comply and, for example, arriving late or early for changeovers. In these cases, the party alleging non-compliance can file an application for “contravention” of the Orders.
As a general rule contraventions are technically difficult legal arguments, and recent amendments to the legislation places an onus on the party bringing the contravention to set out or indicate what steps can be taken to assist in remedying the situation and preventing further occurrences.
Before filing an Application for Contravention of Orders, you should look at the result that you want to achieve and the available options you have:
Community-based family dispute resolution can help you and the other party work through your disagreement. Resolving issues this way is less formal than going to court and should cost less in money, time and emotion. Also, since both parties are involved in shaping a solution, it improves the chances that an agreement will be long-lasting.
You and the other person can attend family dispute resolution before filing a court application. If an agreement is reached, you and the other person can make a parenting plan or apply to the court for consent orders.
If there is a history of family violence, it may not be appropriate to attend family dispute resolution.
Note: A parenting plan is not a legally enforceable agreement. It is different from a parenting order, which is made by a court and is legally enforceable. You should get legal advice about this.
If you cannot reach an agreement, you may consider applying to a court for orders. Going to court is often a stressful time for many people. It can also be expensive and time-consuming. However, sometimes it may be the only way to deal with a dispute.
A court can enforce an order to compel a person to comply with the order. It also can vary an order to ensure all people bound by it comply with the order in the future.
If a court decides a person has contravened a parenting order, it will consider whether the person had a reasonable excuse for contravening an order. A few examples of reasonable excuses that could satisfy the court include:
The decision of a judge or federal magistrate in family litigation must be evidence-based. The more serious the allegation or more improbable the supposed event, the stronger the evidence has to be before a court concludes that the alleged event occurred.
Except for more serious contraventions or contempt, a party must prove the allegations or facts relied on to the court's satisfaction on what is called ‘balance of probabilities’.
The alleged fact must be more than merely possible; it must be more likely to exist than not. Thus, where the allegation is that one party has not complied with a court order, the alleging party (the applicant in a contravention case) must establish that it is more likely than not that the alleged breach occurred.
In the most serious contraventions, including contempt, a court will not find the case proved unless it is satisfied that all the essential facts have been established ‘beyond reasonable doubt’.
This is the same standard required in criminal matters. In general terms, it means that the truth of the allegation must be the only reasonable explanation for what has occurred.
Contraventions are split into four categories, and depending on the contravention, the Court can specify the remedy or action that can be undertaken.
Contravention alleged but not established (Subdivision C): the Court may order the person who has brought proceedings, to pay some, or all, of the other person’s costs.
Contravention established but a reasonable excuse for contravention (Subdivision D):
if the Court has found that a contravention of an order was established, but there was a reasonable excuse for the contravention, then an order can be made to compensate the person for the time that they did not spend with the child, or oblige the party who is in contravention, to pay some or all of the costs of the other party.
Less serious contravention established without reasonable excuse (Subdivision E): in circumstances where the Court has considered a contravention to be less serious, it may issue an order that can include some or all of the following directions:
More severe contravention established without reasonable excuse (Subdivision F): if a party displays a serious disregard for their obligations under the order through their behaviour and a serious contravention has been established, the Court must then make an order to the contravening party to pay all of the other party’s costs.
Furthermore, the Court may: