May 29, 2020

Has your ex breached parenting or property Orders? If they do not have a reasonable excuse for doing so you should consider applying to the Court to force your ex to comply with the Orders and/or face punishment.

Before you take any action, seek legal advice from the experienced family lawyers at McInnes Wilson Lawyers. If you make an application without grounds or for the wrong reasons the Court may end up punishing you.

what is a contravention?

If you and your ex have Court Orders in place for parenting and/or property you are bound by them. The Orders will require you and your ex to do particular things. In a parenting Order you may be required to facilitate the child spending time with the other parent on certain days. A property Order may require you to do all things necessary to have a property sold.

If a party intentionally fails to comply with an Order or does not try to comply with an Order they may be in breach. If the party does not have a reasonable excuse for breaching then the other party can take action by applying to the Court – that is by making a Contravention Application.

If you have a parenting Order in place and your ex breaches the Order you can apply to the Court and seek Orders for:

  • The arrangements set out in an earlier order to be resumed (which you might do if your ex is withholding the children without a reasonable excuse);
  • For make-up time (if your ex withheld the children you can ask the Court to Order the children to spend more time with you to make up for the time lost); and
  • An existing order is varied (you might ask the Court to change the Orders so the children live with you not your ex, or the children spend more time with you or speak to you more).

When you file your Contravention Application: 

  • Your ex can be put on notice that if they do not comply with an order, they will be punished; and/or
  • Your ex can be punished with a fine or in the most serious cases by a term of imprisonment.

To assist you in understanding how to make a Contravention Application in parenting matters have a look at our factsheet. 

why is it important to seek legal advice?

When making a Contravention Application you need to ensure your best case is put before the Court. You do not want the Court to consider you are being “petty and unwarranted” in making the application. 

A recent case decided by a Justice in the Family Court of Australia at Brisbane dealt with this issue. In this case:

  • There was a parenting Order in place which provided for the child to live with their Mother overseas. The Order set out the time that the child would see their Father and talk to their Father. There was a specific Order setting out what the Mother had to do before she could travel with the child, for example provide notice to the Father of that travel. 
  • The Father made a Contravention Application for the following reasons:

Order

Alleged Breach

Court finding

Punishment

The parties provide 60 days’ notice, by email, to the other of the child’s proposed international travel

The Mother emailed the Father on the day of the proposed travel

The Mother  contravened the Order

No punishment because the travel was for one weekend to a place in relative proximity to where the child was living. 

 

The Father be at liberty to call the child between 7.00pm and 8.00pm each Sunday and the Mother ensure the child is available

The Mother allegedly did not ensure the child was available on four separate occasions

The Mother contravened the Order on one occasion only 

No punishment because upon the Mother becoming aware of the father’s difficulties with contacting the child she ensured the child contacted the Father instead

  • Since the Mother was not sanctioned by the Court and some of allegations made by the Father were not determined to be contraventions, the Court could consider making an Order that the Father pay all or some of the Mother’s costs to respond to his Contravention Application.
  • The Father’s conduct was considered petty and unwarranted and he was ordered to pay $2,750 towards the Mother’s costs.

The Family Law Team at McInnes Wilson Lawyers can provide you advice on whether making a Contravention Application is the right option for you. Contact us today for an obligation-free appointment.