I have orders where I call children on Wednesdays and Sundays. The other party has breached the orders 14 times since 1st July. Can I get a contravention order under family law?
QLD Family Law - Seek Contravention Orders?
- Thread starter Amanda maher
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You can apply for a contravention order, but missed phone calls are usually considered a less serious breach. Unless the other party has a reasonable excuse for not facilitating phone calls, the court might grant a slap on the wrist and an order to comply with the original orders, but that's about it. Generally speaking, the only contraventions the court takes seriously are those in which parent departs from the time spent with arrangements without the other parent's agreement.
In any case, it is mandatory to attempt a family dispute resolution conference before you can apply for contravention orders. Legal Aid can facilitate family dispute resolution conferences, as can many community centre such as Relationships Australia.
Hope this helps.
In any case, it is mandatory to attempt a family dispute resolution conference before you can apply for contravention orders. Legal Aid can facilitate family dispute resolution conferences, as can many community centre such as Relationships Australia.
Hope this helps.
For additional information for forum users, my understanding is that if family dispute resolution fails such that a resolution cannot be agreed upon or one party refuses to engage in family dispute resolution, and a contravention application is subsequently lodged, an applicant for a contravention order must establish a prima facie case for the alleged contravention. Summarily, the evidence needs to clearly indicate a contravention has taken place before the court will consider hearing the matter in full.
If a prima facie case cannot be established, the application will be dismissed, but if a prima facie case can be established, the respondent party then has the opportunity to respond and either defend the contravention or establish a reasonable excuse for the contravention. Alternatively, the respondent party may file an application to seek a change to existing orders, including those alleged to have been contravened.
A reasonable excuse for a contravention will be established where a party successfully argues on the balance of probabilities that the contravention was necessary to protect the health or safety of a person (e.g. the respondent or the affected child/ren) and that the contravention was not carried out for a period longer than necessary to protect the health or safety of that person.
The court can categorise contraventions as serious or less serious, and order outcomes accordingly. Trends from the court suggest that serious contraventions are those in which time between a parent and child is repeatedly withheld against court orders; less serious contraventions are first-time events or minor interruptions that hold fairly minimal bearing on the children's capacity to maintain a relationship with both parents.
The most common outcome in contravention proceedings is a bond imposing an obligation on the contravening party to comply with any one or more of the following:
Further, if a reasonable excuse is established on behalf of the respondent, or the contravention application is dismissed, the court can order the applicant to pay costs on behalf of the respondent party, and likewise, if a reasonable excuse is not established, then the court can order the respondent pay the applicant's costs.
With the above in mind, applicants should take care before entering into litigation for alleged contraventions of existing parenting orders and should always seek legal advice first. The court dislikes parents who revert to the court to settle domestic disputes, particularly when not all other options for amicable resolution have been exhausted. There is a significant cost, time and emotional, imposed on the applicant and the respondent despite there being no promise of a winning outcome, but most importantly, however, court proceedings also negatively affect the kids because of the adversarial conflict between parents that accompanies litigation.
For more information about contraventions, see Division 13A of the Family Law Act 1975.
If a prima facie case cannot be established, the application will be dismissed, but if a prima facie case can be established, the respondent party then has the opportunity to respond and either defend the contravention or establish a reasonable excuse for the contravention. Alternatively, the respondent party may file an application to seek a change to existing orders, including those alleged to have been contravened.
A reasonable excuse for a contravention will be established where a party successfully argues on the balance of probabilities that the contravention was necessary to protect the health or safety of a person (e.g. the respondent or the affected child/ren) and that the contravention was not carried out for a period longer than necessary to protect the health or safety of that person.
The court can categorise contraventions as serious or less serious, and order outcomes accordingly. Trends from the court suggest that serious contraventions are those in which time between a parent and child is repeatedly withheld against court orders; less serious contraventions are first-time events or minor interruptions that hold fairly minimal bearing on the children's capacity to maintain a relationship with both parents.
The most common outcome in contravention proceedings is a bond imposing an obligation on the contravening party to comply with any one or more of the following:
a. attend an appointment (or a series of appointments) with a family consultant; or
b. attend family counselling; or
c. attend family dispute resolution; or
d. be of good behaviour (ie. follow the original orders)
Other outcomes can be anything from a change of existing orders to a fine to imprisonment, but these orders are a substantially less common outcome than a bond.b. attend family counselling; or
c. attend family dispute resolution; or
d. be of good behaviour (ie. follow the original orders)
Further, if a reasonable excuse is established on behalf of the respondent, or the contravention application is dismissed, the court can order the applicant to pay costs on behalf of the respondent party, and likewise, if a reasonable excuse is not established, then the court can order the respondent pay the applicant's costs.
With the above in mind, applicants should take care before entering into litigation for alleged contraventions of existing parenting orders and should always seek legal advice first. The court dislikes parents who revert to the court to settle domestic disputes, particularly when not all other options for amicable resolution have been exhausted. There is a significant cost, time and emotional, imposed on the applicant and the respondent despite there being no promise of a winning outcome, but most importantly, however, court proceedings also negatively affect the kids because of the adversarial conflict between parents that accompanies litigation.
For more information about contraventions, see Division 13A of the Family Law Act 1975.
Yup, agree with the last poster but for the sake of brevity... Yup, you could make an application for a contravention hearing once you've tried mediation. But let's face it, even if you self-represent it will still cost you for court fees. If it gets that far the magistrate will tell her to make sure the kids get to talk to you on the phone, but it could take months and months to get it that far....
Oh and after that, what then if it continues? More court? More money and more grief.
So here is the thing, yes, she has breached 14 times but by my rough math, she has complied 16 times. Yep, I know, and I'm not defending it, but is it worth spending money on a court? In my opinion, no.
Based on my understanding of the system, I'd suggest you don't even complain to the ex about it because all that will achieve is to let her know it is getting to you.
Oh and after that, what then if it continues? More court? More money and more grief.
So here is the thing, yes, she has breached 14 times but by my rough math, she has complied 16 times. Yep, I know, and I'm not defending it, but is it worth spending money on a court? In my opinion, no.
Based on my understanding of the system, I'd suggest you don't even complain to the ex about it because all that will achieve is to let her know it is getting to you.
Hi, thanks so much and it's my ex-husband that has children. I had been representing myself till today. Yayyyy! But all your information helped, and yes already done mediation with no success
Oops sorry on the gender thing. My mistake.
Look, Depending on the age of the kids, stuff like facebook, etc. is worth a thought. Also, make sure you contact their school. My ex gets lots of info like school reports directly from the school. Yep, it ain't the same as a call or Skype, but sadly I really think the other options like court are fraught with issues...
Look, Depending on the age of the kids, stuff like facebook, etc. is worth a thought. Also, make sure you contact their school. My ex gets lots of info like school reports directly from the school. Yep, it ain't the same as a call or Skype, but sadly I really think the other options like court are fraught with issues...
It's all good. Yeah, they have FB but the father made them block me. I do call up the schools to see how they are going, etc. The kids have mobile but I'm not allowed to have their number
I have a court order to phone the kids every Wednesday and Sunday, but that's only if their father answers and I dont have their numbers as their father refuses me to have them.
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