DEALING WITH THE RULE BREAKERS
When a court puts parenting orders in place, it’s often the result of a long process involving weighing up the evidence presented by both parents via their applications, affidavits and at the hearings. Normally, by the time these orders are worked out and formalised by the court, there has been an enormous emotional and indeed financial investment by one or both parties. And court orders regarding parenting are the lesser road travelled.
Most mums and dads manage either through respect for each other or an awareness of the potential damage delays in organising shared parenting can cause to children, get down to working out either an informal agreement or an agreement by consent. The difference is a parenting order is made by a court whereas a less formal parenting plan is a written agreement that sets out parenting arrangements for children. A parenting plan is not legally enforceable whereas parenting orders are.
Some folks work out an agreement but still want the courts involvement. So they take their agreement to court and ask for “consent orders”. Here, both parties work out how the parenting is to be shared and then get down to putting this in writing. This is normally with the help of a lawyer who gives the judge a document called “consent minutes” which detail the exact way the parenting will occur from drop offs and pickups, where the visits or stays will occur, and time shared during holiday times, birthdays. I like to think of this method as I sort of trust you with our agreement but I want the court to look at it, seal it and in a way hold us to account over what we have agreed to.
However, when all negotiations between parties fail and you can’t work out how the parenting will be conducted, you need to go to court so they the judge can look at both sides of view (and the best interests of the children) to devise your parenting orders.
Parenting orders that are worked by the court with overriding perspective of the best interests of the children. If your fight is over petty things this will not be important in the court’s eyes. And these orders, apart from stating the usual organisation things like what times and how parenting is to shared, can also set out more serious commitments that may need to be made by a parent. Examples of this might include the need for regular drug testing, the need for parenting to be supervised and even restrictions on where a parent may travel with a child.
Once these orders are in place mums and dads must follow the orders made by the court. If you believe the other parent has not complied with an order, you can:
- Seek legal advice
- Attend family dispute resolution
- Apply to the courts for new orders, or if it is very serious, a contravention order.
Please note you cannot e-file a contravention applications
Seek legal advice
You should seek 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 help you reach an agreement without going to court. You can seek legal advice from a legal aid office, community legal centre or if you have the bucks, a private law firm. Court staff can help you with questions about court forms and the court process, but cannot give you legal advice. At The Legal Eagle, we can also help you prepare your applications for a very moderate cost. You can make an appointment HERE.
Attend family dispute resolution
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 cost, time and emotion. As both parties work on the solution, the agreement is likely to last longer. Even if you have been down this road previously it is still worth trying as the potential cost savings of solving problems this way is worthwhile.
Make a contravention application
So for what sort of things can you seek a contravention application?
A parent is normally found to have contravened an Order where they have either:
a) Intentionally failed to comply with the Order; or
b) Made no reasonable attempt to comply with the Order.
When drafting a contravention application, it is important to specify whether you say the other party either intentionally failed to comply or made no reasonable attempt to comply.
And if you are making the application in a contravention matter must show the Court that:
a) An Order exists (whether an interim or a final order); and b) The respondent has contravened the Order.
You must state, clearly and concisely, the facts you rely upon to demonstrate the contravention. If you allege that more than one order has been contravened, or that an Order has been contravened, or that an Order has been contravened on more than one occasion, deal with each alleged “breach” separately.
Making one statement to cover all alleged contraventions, as happened in this matter, is not advisable. And be careful not to be petty with applications that are based on a parent on a couple of occasions missing a handover by half an hour. Another one I remember was a parent who always thought the other parent had been drinking when they had the child. No real evidence here, just suspicion mixed with the usual dose of contempt.
These sort of things just won’t fly in court.
The Court deals with Contravention Applications in a strict manner, due to the penalties that can be imposed. As a result, it is important to get your Contravention Application “technically” right from the start. In a recent case, the Court dealt with a Contravention Application by the Father which alleged that the Mother had breached three parenting orders by “obstructing the organising of time between the father and the child”.
The Father’s application did not contain any specific allegations relating to any of the Orders that he alleged had been breached. The Court found it was “vague” and in “generalised terms”.
Ultimately, the Court found that the Father had not established a contravention by the Mother, on any of three counts.
Costs in contravention proceedings
Costs can be awarded in contravention proceedings that affect children but it can run both ways.
If the Court decides that a ‘more serious’ breach of an order has occurred, it must order costs against the person breaching the order, unless it would not be in the child’s best interests. If the Court dismisses a contravention application or finds that no action is required, and such a finding has been made previously, it must consider ordering costs against the person who filed the contravention application.
Before filing a Contravention Application, consider the result that you want to achieve. The remedies available from the Court range from the enforcement of an order to the punishment of a person for failure to obey an order. For example, the court may make an order that:
- ensures the resumption of the arrangements set out in an earlier order;
- compensates a person for lost contact time;
- varies an existing order;
- puts a person on notice that if the person does not comply with an order, the person will be punished
And remember if you don’t actually want the other party punished (eg. fined or imprisoned) for the breach but rather want a speedy remedy to ensure the resumption of the arrangements set out in an earlier order, you may be able to file an Application in a Case rather than a Contravention Application.
To find out what happens at a Contravention hearing click the link below:
To get help from The Legal Eagle either drop us a line: help@TheLegalEagle.com.au or
Make an appointment HERE.
[We have free 15 minute appointments for new clients.]