Just how the Family Law Court concludes a contravention of a parenting order
- Author Alan Weiss
- Published January 14, 2012
- Word count 1,158
A person, who fails to abide by a parenting order, may be in Contravention (violation) of parenting orders.
Every time parenting orders are made by either the Family Court or Federal Magistrates, there's an requirement that all parties must follow the orders. For example, a parent has a positive obligation to inspire a child to spend time with the other parent (if this is specified in the order).
In Parenting Orders, there are typically issues with failing 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.
Generally speaking contraventions are technically difficult legal arguments, and recent amendments to the legislation places an obligation on the party bringing the contravention to set out or indicate what actions can be taken to assist to remedy the situation and prevent further complications.
Before filing an Application for Contravention of Orders, you should think of the end result that you might want to attain and the available alternatives you have:
• attending dispute resolution
• getting legal advice
• applying to a court.
Attend family dispute resolution
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 an alternative, it enhances 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 court for consent orders.
Should there be a history of family violence, it may not be correct 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.
Get legal advice
You should get legal advice before deciding what to do. A lawyer can help you understand your legal rights and responsibilities, and explain how the law applies to your case. A lawyer can also explain and help you reach an agreement without going to court.
Apply to a court
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 impose an order to compel you to abide by the order. It also can vary an order to ensure all people bound by it comply with the order in the future.
What exactly is reasonable excuse?
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. Some examples of reasonable excuses that may satisfy the court include:
the person didn't grasp the obligations imposed by the order, or
the person reasonably believed that the actions constituting the contravention were important to protect the health and safety of a person, including the person who contravened the order or the child, and
that the time of the contravention was not longer than was necessary to protect the health and safety of the person who contravened the order or the child.
Standard of proof - 'beyond reasonable doubt'
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
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 bought proceedings, to pay some, or all, of the other person’s costs.
Contravention established but 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:
the party who committed the contravention is to attend a post-separation parenting program;
make a further parenting order that compensates the person for the time that they did not spend with the child;
allow the parties to make an application to vary orders;
require the person to enter into a bond;
make an order for compensation for any costs incurred as a result of the contravention (eg. travel expenses);
require the person to pay some or all of the other party’s costs.
More serious 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:
subject the person to a community service order;
require the contravening party to enter into a bond;
make a parenting order that compensates the person for the time that they did not spend with the child;
order the person to pay a fine;
sentence the person for up to 12 months imprisonment;
make an order for compensation for any costs incurred as a result of the contravention;
order the person to pay some or all of the other party’s costs.
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