Have the Wheels Really Fallen Off?

“she didn’t send Johnny to me on the weekend because she said he was sick – the order states that he should be spending time with me. Can I take her back to Court?”

When parties come to an agreement in relation to a parenting matter and an order is made, it is important that the terms expressed are complied with. Failing to comply with an order can lead to a Contravention Application being filed in Court.

Issues related to breaches of an order are not always as clear cut as some parties believe them to be. If you think the other party has breached a term in the order, it is important to seek legal advice before you file an Application.

Why?

Of course there are times when a Contravention Application is warranted, however in circumstances where the breach is considered minor, the Court is likely to look unfavourably upon the Applicant’s enthusiasm to pursue matters that don’t warrant judicial attention. Sometimes, these issues can be resolved with the appropriate legal guidance and assistance.

What does the Court look at?

The Court views that an order is breached when a party:

1. Deliberately chooses not to comply and/or makes no real attempt to comply with a parenting order; or

2. Deliberately prevents a person who is bound by the order to comply with it.

If it is evident that an order has been breached, the Court will consider whether the party who contravened the order had a reasonable excuse.

To satisfy the court, a reasonable excuse may be considered in some of the following circumstances:

1. Where the party did not fully understand the terms of the order and their obligations with respect to same; or

2. Where the party contravening the order believed it was necessary to protect the child from harm and only carried out the breach for the length of time necessary to ensure the child’s safety.

Back to little Johnny:

In determining whether you have sufficient grounds to make a Contravention Application to the Court, it is important to consider some of the following things:

1. Is this the first time it has happened?

2. Were the grounds significant enough to warrant the contravention?

3. Is there external evidence (ie a medical certificate) to support the breach?

4. Were you not in a position to provide the appropriate care for the child?

If the Court finds that an order has been breached without reasonable excuse, it may impose any of the following penalties:

1. Attendance at a post separation parenting course;

2. Payment of some or all of the other parties legal costs;

3. Variation of the Order;

4. Reasonable expenses or compensation be paid as a result of the breach;

5. Community Service;

6. Entering into a bond;

7. Payment of a fine;

8. Imprisonment.

If the other party has breached an order and you are not satisfied with the excuse provided, seek legal advice immediately.

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