You have parenting orders in place, but the other parent is not always sticking to them. They are sometimes late to drop the children into your care, or change the pick-up location regularly. All this can be quite frustrating, given that the Orders have been set out, and the when and where of changeovers are meant to be locked-in!
Then, one day, the children are not brought to spend time with you as set out in the Orders at all, and your partner gives what you consider a poor explanation. This time, you feel, they have crossed the line and have clearly contravened the parenting Orders. In the moment, you may want to file a contravention application. This article provides some matters you should consider before rushing into anything:
What is your reason for thinking the other parent has breached the Orders?
What did your ex-partner say was the reason they breached the Orders?
What do I want to achieve by returning to court?
It is a necessary reminder that many contravention applications fail when the breaching parent establishes a reasonable excuse. More importantly, the court has made it clear that the law underpinning contravention applications is not set-up to punish a parent for non-compliance with parenting orders! Rather, the laws aim to ensure continued and future compliance with parenting Orders.
What Do I Want To Achieve By Going Back To Court?
Where a contravention application is successful, the most common result is simply Orders for make-up time (where no reasonable excuse is found for instances of contact that did not occur pursuant to parenting Orders).
There are many things to consider before bringing a contravention application. You should certainly think about the questions you are likely to be asked at a hearing, which would likely include:
Did you want to use this opportunity to punish the other parent?
Did you think about the impact this may have on your children when you returned to court?
Was their reason for breaching the Order deserving of the stress and costs of coming back to court for not only your ex-partner, but also your children?
I Still Wish To Apply For A Contravention
If, in your circumstances, none of the above caveats apply, it is our opinion that you should seek out legal advice about your situation and engage a lawyer to prepare a contravention application. You will need to have evidence of your ex-partner’s non-compliance and you will also need to have been present at the changeover location if you allege that the children were not provided as set-out by the Order. It is also important to have evidence of phone calls made or text messages sent asking the whereabouts of the other parent and any responses received.
Cost orders will often be made against a party should they be unsuccessful in their contravention applications. Sometimes, even though the court finds that a parenting order was contravened, the Court may go on to find that the contravening parent had a reasonable excuse for their actions in breaching the Order. So, where the contravention is found, so was a reasonable excuse, and thus you may still be ordered to pay the legal costs of the other parent. You may also be at risk of a costs order even where you represent yourself, if the other parent engages a lawyer, and your application is not successful.
Sometimes, there may be an ambiguous point in your parenting orders causing conflict. In which case it may be more appropriate to simply work on a clarification and find agreement between the other parent and yourself through Family Dispute Resolution, or your legal representatives, without the need of going to court.
It could also be that there has been a change in circumstances which has made parts of the Orders impractical. The court has a discretionary power to vary existing orders whether a contravention is established or not, if the threshold test for change of circumstances from Rice & Asplund is met. The court must also consider it in the best interest of the children to vary any order, as it must do before making any parenting Orders. One relevant consideration is whether it would be preferable to make the order that would be least likely to lead to further proceedings about the child.
Before you can file: Pre-action procedures
Before filing an application, you will be required to invite the other party to participate in dispute resolution, provide written notice of your intention to commence proceedings, and take other genuine steps set out in the pre-action procedures to resolve your dispute out of court.
The court has introduced a specific list to deal with contravention applications, which aims to list all new contravention applications for a first court date within 14 days from when the application is filed. If you are contravening orders, you may find yourself back in court on short notice.
In this article, we have not provided examples of what the court has said are reasonable excuses as there are many variables. Each case depends on the circumstances of those parents and children, such as the children’s ages. Contravention applications are not clear cut and we would encourage you to contact our family law team if you are considering filing a contravention application, or if you have been notified from the other parent that they are going to file a contravention application against you.
*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice beforetaking any course of action.*
Special Counsel | Accredited Family Law Specialist NSW
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