Contravention and Enforcement

Breach of Parenting Orders

Where there is non-compliance with a parenting order there are essentially 3 avenues available:

  • Application in a Case for enforcement
  • Contravention application
  • Contempt application

The first two applications are more common and are covered below.

Application in a Case

An Application in a Case is often used to enforce a parenting orders where the breach of the parenting order is less serious.

An application in a case is use where a person seeks a remedy to a breach of the parenting order instead of punishing the person not complying with the court order. Some remedies available include:

  • Variation of the existing order
  • Make up time
  • An order for costs
  • Participation in a parenting program

One common use of an Application in a Case is in relation to location and recovery orders.

The documents required to be filed and served are:

  • Application in a Case
  • Affidavit
  • Family Dispute Resolution certificate

Contravention Application

For more serious cases of non-compliance with a parenting order an application referred to as “Application – Contravention” is more appropriate. This application is more suited to cases of repeated non-compliance with a parenting order and where the complying party is seeking punitive orders.

Whether or not a contravention application is proved the court has the power to vary an existing parenting order.

Documents Required

The documents required to be filed and personally served are:

  • Application – Contravention
  • Affidavit
  • Family Dispute Resolution certificate

Contravention applications are quasi-criminal proceedings and as such must be strictly outlined in the application with precision.

The onus of proof is on the applicant to prove the contravention. The standard of proof is the civil standard which is on the balance of probabilities.

Reasonable Excuse

A defence to a proved contravention application is to establish reasonable excuse.

The onus is on the respondent to prove sufficient facts to establish reasonable excuse. The standard of proof is on the balance of probabilities.

Application in a Case or Contravention Application

In determining whether to file an Application in a Case or a Contravention Application the following factors may be relevant:

  • The nature of the orders sought
  • The seriousness of the non-compliance
  • The ongoing relationship of the parents
  • Whether punitive orders are sought
  • Possible cost consequences if an application is not established

Remedies

The remedies available in relation to a contravention application depends on the seriousness of the contravention. In all cases the court has the power to vary the existing order.

In more serious cases the following remedies may be ordered:

  • A bond
  • Payment of a fine
  • Community service order
  • Make up time
  • An order for costs and/or payment of expenses
  • Imprisonment

Responding to a contravention application

It is important that when a person is served with a contravention application to respond within the required timeframe.

The response may be on 2 grounds:

  • The first is to dispute the evidence of the contravention application. That is, dispute that there has been a contravention in the first place
  • The second is to accept that there has been a contravention but that there was reasonable excuse for the contravention.

A parenting plan may be used as a defence to a contravention application.