My Ex Has Broken The Court Orders In Relation To My Children - Should I File A Contravention Application?
Under Section 70NAC of the Family Court Act (Act), a parent is deemed to have ‘contravened’ a parenting order if they either intentionally failed to comply with the Order or if they make no reasonable attempt to comply with the Order.
If the other party is not complying with the Orders, you could consider attending a form of Family Dispute Resolution or pursue a Contravention Application to the Family Court. This will involve filing an Application at Court and an Affidavit outlining your evidence. Time limitations apply to the filing of a Contravention Application, and if your Orders are more than twelve (12) months old, then you may be required to attempt Family Dispute Resolution before you can file a Contravention Application. The purpose of this, is that the Court consider it important that parents avoid returning to the Family Court unless it is absolutely necessary, and accordingly mediation (family dispute resolution) should be the first port of call before returning to Court in most circumstances. You should obtain specific advice relevant to your matter regarding mediation and when a Court Application should be filed instead.
The Family Court has significant powers of enforcement.
If the contravention is not significant, it may be more effective to avoid Court proceedings. Court proceedings can unnecessarily polarize parents and make the situation worse. You should obtain specific advice from your lawyer at Perth Family Lawyers prior to filing any Contravention Application. Attempts should also be made to resolve any dispute amicably with the assistance of your lawyer, before you launch Court proceedings, given the emotional stress and costs involved.
If is important that you keep a record of the breaches, particularly if the behavior is ongoing as you may have to go to Court to enforce the Orders at a later date.
When enforcing Orders in the Family Court, it must be proved on a ‘balance of probabilities’ that a breach of a Court Order has occurred. This means that it is more likely than not.
The Court will also consider whether the contravening party had any ‘reasonable excuse’ for doing so.
Under section 70NAE of the Act, a person is taken to have had a reasonable excuse for contravening if they did not understand the obligations imposed by the Orders or if the Court is satisfied that the person ought to be excused in respect of the contravention.
By way of an example, it may be the case that a person genuinely did not understand the Orders and their obligations. Alternatively, it may be that there was some reasonable excuse that a parenting Order was not complied with, such as an emergency or accident.
If the Court finds that the other party has breached a parenting Order without having a reasonable excuse, the Court may order the contravening party, among other things, to:
- meet the costs that you have had to meet because of their breach of the parenting Orders;
- or undertake a parenting program;
- pay a fine; or
- serve a term of imprisonment.
The Court may also make an order to give you extra time with the child for the time that you did not get to spend with them because of the contravention.
It is important to note that if you file a Contravention Application and are unsuccessful in proving that the other party has contravened the Orders, then you could be ordered to pay the other party’s legal costs. This is why it is so important to speak with your lawyer and receive advice specific to your circumstances before you file any Application before the Court. Our lawyers are highly skilled in providing advice and guidance in these matters. Why not call us today on (08) 9325 8675 or email us via our Contact Page and arrange an interview with one of our professional staff.