Parenting Orders are designed to give both parties confidence in the arrangements for the care of their child, or children, following a separation.
Generally speaking, most family law parenting Orders include specific provision to allow parents to reach agreements on arrangements for their children between themselves. However, in the event that they are unable to agree, the parenting Order will set out arrangements that the parties must comply with.
In the event that one party breaches parenting Orders without a reasonable excuse, the other party may ask the Court to find the defaulting party guilty of contravening the terms of the Order.
Such an application may well occur in conjunction with an Application to vary or discharge the parenting Orders which had been breached. Ultimately, it may lead to different living arrangements for the child or children involved.
The enforcement of financial Orders can often be a time-sensitive and urgent issue. This is particularly the case in circumstances where the sale of a property, or release of an obligation relating to a jointly owned asset or liability, is required in a timely fashion.
The Court has the power to remedy any breach of an Order which is deemed contemptuous or unnecessary. The Court can also authorise a third party to “stand in the shoes” of the defaulting party to effect settlement, or ensure that finalisation of property transfers or payments are carried out.
- I have Court Orders, but my ex-partner will not comply with what they say. What can I do?
If a person is found guilty of having breached a family law court Order without a reasonable excuse, the penalties range from being required to undertake mandatory counselling, to a fine and, in extreme cases, imprisonment. If you are in this situation, seek legal advice immediately.
- What is the point of having the other parent found guilty of contravening parenting Orders?
The cumulative effect of ongoing breaches of parenting Orders can be used as evidence to apply to discharge or vary the Orders which are not being honoured.
The consequences for a parent of being found guilty of breaches on an ongoing basis can be serious. They could lead to the Court determining that the parent was not willing to facilitate the child’s relationship with the other parent, which may result in significant changes to the legal arrangements for the child/ren.
- What is the cost of making a contravention/ enforcement application?
The cost of making an application is effectively equivalent to the cost of an interim application in the Court process.
The customary protocol associated with costs in family law proceedings is that both parties must bear their own legal fees. However, where a party is found guilty of breaching an Order, it is easier to argue against this and potentially claim back some of the costs incurred in making the application.
- How long will it take?
The contravention process is designed to occur quickly and efficiently. Rather than parties being required to wait for court dates months away, the Court will seek to have these applications heard and determined within two hearing dates.
- What happens?
Unlike a parenting or property Order application, a contravention application is made in order for the respondent to be found guilty of having breached a current Court Order.This means that the respondent will be charged with a specific breach (or breaches) of the relevant Order, and must indicate whether they intend to plead guilty or innocent at the hearing.
A respondent may seek to plead guilty, but qualify the plea on the basis that there was a ‘reasonable excuse’ for their failure to comply with the terms of the Order.
The respondent will be cross-examined in relation to the alleged breach, and just as in the criminal law Courts, the judicial officer will determine the issue of guilt or innocence. If the respondent is found guilty, penalties will flow from there.