Breach of Parenting Orders
Where there is non-compliance with a parenting order there are essentially 3 avenues available:
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:
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:
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.
The documents required to be filed and personally served are:
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.
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 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:
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:
A parenting plan may be used as a defence to a contravention application.