On the seventh day of Christmas...Think twice before contravening parenting orders during the Christmas holiday period

Posted by Luisa-Maria Maroun on 01 December 2015
On the seventh day of Christmas...Think twice before contravening parenting orders during the Christmas holiday period

 

What is a “contravention?”

Essentially, a contravention means acting in a way that is against a Parenting Order made by the Court. Breaching or contravening an Order can involve any of the following:

 

  1. A parent failing to abide by, or making no attempt to, comply with the terms of the Parenting Order;
  2. A parent intentionally stops or tries to prevent another person who is bound by the Order from complying with the Order; and
  3. A parent contravenes an Order without a legitimate reason or explanation.

Practical examples of conduct that can amount to a contravention include:

  • where a parent does not deliver or return a child to the other parent as per the defined timeframes set out in the Court Orders;
  • where a parent fails to make the child available to spend time with the other parent.

What happens if a parenting order has been breached?

In the event that contravention proceedings are initiated and the Court makes a finding that there has in fact been a breach of a Parenting Order, the Court has the power to make a variety of Orders including but not limited to the following:

  1. Order make up time to compensate for the time that the parent missed out on spending with the child;
  2. Order the parent to attend parenting education courses such as a post separation parenting program;
  3. Direct a parent to enter into a bond with the Court to do certain things for a period of up to two (2) years. The terms of the bond may involve the parent attending counseling appointments and/or being of “good behaviour” which would include strict compliance with the Court Orders so as to avoid future breaches of the Order; 
  4. Impose a fine on the contravening parent;
  5. If the breach is of a serious nature, the Court may also make an imprisonment order for a period of up to twelve (12) months; and/or
  6. The contravening party may be ordered to pay the legal costs of the other party.

Separately, the Court may also determine to vary  the existing Orders in ordert to avoid similar issues arising in the future.

How will a Court determine the issue of costs?

When considering whether or not to make an order as to costs, the Court takes into consideration factors such as:

  • whether the contravention application is dismissed because there was insufficient evidence to prove the alleged breach;
  • whether the respondent can effectively prove to the Court that they had a good reason and excuse for contravening the Order and;
  • whether there have been prior contravention applications filed by the applicant which were unsuccessful and lacked merit.

If you are contemplating about filing a contravention application, you should take into consideration that the Court’s main purpose will be to establish whether or not there has been a breach of the Court Orders. If the Court concludes that there has been a breach, the Court may first try to resolve the problem by varying the orders so that there is less of a chance that a breach will occur in the future.

In the event that you need assistance with the interpretation of existing Orders or you anticipate that the other  party will contravene the orders, it would be sensible for you to seek legal advice in advance. Given the upcoming school holiday period, it is best to resolve any outstanding parenting issues now, so that you can focus on spending quality time with your children as opposed to worrying about being the subject of a contravention application.

We invite you to contact our experienced family lawyers who will be able to address any concerns you may have regarding the application of your existing Orders.

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