What do I do if my ex-spouse is no longer following our parenting Orders?
When a party breaches a Court Order, this is referred to as a contravention. There is no automatic recourse available for a contravention of a parenting Order and sometimes it becomes necessary to file an Application with the Court.
Types of Applications
This can be done in one of two ways:
An Application – Enforcement, can be filed when an Order has been contravened and you simply want the Order complied with and/or be compensated for any missed time with the child/ren. This is also the best Application to file when you are not seeking for the non-compliant party to be punished in any way for their failure to comply.
An Application – Contravention, on the other hand is a very serious, punishment style proceeding that is quasi-criminal by nature. This means that if the Court finds that the other party has contravened the Orders, without a reasonable excuse, then penalties and punishments may be imposed against them.
What is a ‘reasonable excuse’?
When the Court considers an Application – Contravention, they will consider whether the contravening party accepts the alleged contraventions, and if accepted, or proven, whether they had a reasonable excuse for doing so.
A reasonable excuse must fall within the following categories:
- The contravening party did not understand their obligations pursuant to the Orders;
- They believed the contravention was necessary to protect the health and safety of a person, such as themself or the child/ren; or
- The contravention only occurred for the required period to protect the health and safety of the person.
The new Federal Circuit and Family Court of Australia
Up until recently, an Application – Contravention was not often the course of action recommended by Solicitors, to rectify breaches of Court Orders, because the financial and psychological costs of filing such an Application were rarely proportional to the outcome received.
The punishment for contravening an Order without a reasonable excuse depends on the seriousness of the breach, and punishments can range from nothing at all to a term of imprisonment. The Court also has the power to change the Orders, suspend them for a period of time, or discharge them entirely.
However, as of 1 September 2021, the Court has introduced the National Contravention List, with the intention to efficiently deal with Applications and ensure parties are compliant with Court Orders.
Once an Application is filed with the National Contravention List, it will be considered by a Contravention Registrar within 14 days. The Registrar will either approve the Application for filing or decline the Application if it is deficient. If the Application is accepted, it will be given a first return date within 14 days of filing.
This is a vast improvement in terms of timeframes to that of the previous system.
If you require assistance with an Application – Contravention, then please do not hesitate to contact our office. –
