Contravention Applications: What They Are and Why They Matter
Updated: 20 September 2023 · Read time: 13 minutes
Contravention Applications are filed by one party (the Applicant) when seeking an order from the court for the breach of a previous court order or agreement by another party (the Respondent).
These applications are usually filed in family law cases related to parenting arrangements, property settlements or child support.
Importance of Contravention Applications in Legal Proceedings
Contravention Applications play a critical role in enforcing court orders and agreements. They help to promote compliance with court orders and agreements, which ultimately leads to more stable, predictable outcomes for all parties involved. Moreover, they are essential tools for protecting the rights and interests of children in family law disputes.
Objectives of the Outline
The objective of this article is to provide readers with a detailed overview of what Contravention Applications are and their importance in legal proceedings involving family law matters. We will explore the different types of Contravention Applications that exist as well as common grounds for filing them.
Additionally, we will look at how these applications work procedurally - from preparing and filing them through attending court hearings and presenting evidence.
We'll also delve into possible defences available to Respondents facing these applications as well as examine the potential consequences of breaching court orders or agreements.
We'll offer some tips for avoiding breaches and conclude with some final thoughts on Contravention Applications.
Overview of Contravention Applications
Whether you are dealing with parenting orders, financial orders or any other family law court orders, the terms must be followed. If a party fails to comply with a court order, whether it be deliberate or by accident, a contravention application may be filed in court.
A contravention application is an important tool for ensuring that parties comply with legal orders and agreements set out by the court. This section will provide an overview of what contravention applications are and why they are significant in family law proceedings.
Meaning and purpose of Contravention Applications
The meaning of a contravention is defined as the act of breaking something (an agreement or order). In family law matters, a contravention refers to the failure to comply with a court order without reasonable excuse. The purpose of filing a contravention application is to seek redress from the other party who has failed to comply with their obligations under existing court orders.
Contraventions may take many forms including not adhering to parenting arrangements such as child custody schedules, failing to pay child support or spousal maintenance payments on time, declining access to children contrary to an existing agreement or proceeding with property transfers without compliance with previous arrangements. It is essential that parties understand their obligations under established agreements; however, if one party fails to meet those obligations for any reason, then it might become necessary for the other party affected by this breach to file a Contravention Application seeking enforcement and/or penalties.
Types of Contravention Applications
There are two types of contraventions; minor and serious. Minor breaches refer to instances where there has been technical non-compliance which does not affect either parent's ability/relationship/financial position: e.g., lateness in picking up children for visitations.
In contrast, serious breaches may lead to a significant impact on the child's welfare, e.g., failure to return children after visitation which may require the court's immediate intervention. It is important to note that each type of contravention application may have different consequences, including penalties or changes in existing arrangements.
When to file a Contravention Application
Contravention applications are filed when one party alleges non-compliance with an existing agreement or order. In case of minor breaches, it would be advisable for parties to attempt a resolution through negotiation and/or mediation before approaching the courts with a Contravention Application.
On the other hand, in case of serious breaches, such as urgent or dangerous situations that require prompt action by the court due to their impact on children involved, parties should immediately file an application with the court without delay. Understanding contraventions’ meaning and purpose is crucial in family law proceedings as these applications ensure compliance with established agreements/ orders.
Parties must comply with legal obligations; failing to do so can result in serious penalties and consequences. The next section will delve deeper into different bases for filing Contravention Applications.
Grounds for Filing a Contravention Application
A contravention application is filed when one party alleges that the other party has breached an order, parenting plan or financial agreement. This section will describe some of the common grounds for filing a contravention application.
Non-compliance with Court Orders
One of the most common reasons for filing a contravention application is non-compliance with court orders. A court order is legally binding and requires both parties to comply with its terms. When one party fails to comply with an order, it can have serious consequences.
The aggrieved party may seek redress through a contravention application. The court can impose penalties such as fines, make compensatory orders, change previous orders or even imprison the non-compliant party.
Breach of Parenting Plans or Agreements
Parenting plans and agreements are voluntary agreements between parents that set out how their children will be cared for after separation or divorce.
They are not legally binding but are considered by courts when making parenting orders.
Failure to Pay Child Support or Spousal Maintenance
Child support and spousal maintenance payments are often mandated as part of family law proceedings. When one party fails to comply with these requirements outlined in previous court decisions or consent orders entered into by both parties, they may find themselves facing another round of family law proceedings through applications made by the other person seeking enforcement procedures for adherence to court outcomes.
Other Grounds for Filing a Contravention Application
There are several other grounds that warrant filing a contravention application such as interference in the relationship between the child and the other parent or party, failure to comply with conditions for access, detrimental behaviour towards a child, non-disclosure of information that affects parenting arrangements, and failure to comply with financial agreements. It is important to note that filing a contravention application should be done after all other options have been exhausted. The court expects parties to make genuine efforts to resolve disputes outside of the court system.
Procedure for Filing a Contravention Application
Preparing and filing the application
To file a Contravention Application, the applicant must complete the appropriate forms and lodge them with the court registry. The forms can be found on the Family Court or Federal Circuit Court website.
It is important to ensure that all information is accurately provided, including details of the order or agreement that has been breached, details of how it has been breached, and any supporting evidence. This may include affidavits from witnesses or other evidence such as emails, text messages or bank statements.
It's important to note that before filing an application in court for contravention of a parenting order, parties are required to obtain a certificate from an accredited family dispute resolution (FDR) practitioner unless exempted by legislation. Legal advice should be sought about exemptions.
Serving the application on the other party
Once filed with the court registry, the applicant must serve a copy of their application on the respondent at least 7 days before any scheduled court hearing date. Service must be carried out according to specific rules set out in Family Law Rules 2004 (Cth).
If service is not carried out correctly, this could result in delays in having your matter heard by a judge. The respondent will have an opportunity to respond to your Contravention Application by filing their own response form together with any supporting evidence they wish to rely upon.
Attending court hearings and presenting evidence
If parties cannot negotiate and settle outside of court after receiving Court orders or Parenting Plans following mediation then they will have to attend at least one hearing before a judicial officer who will hear both sides of argument laced with documentary evidence which they will determine based on its merits whether there was non-compliance/breaches or not and make appropriate orders.
At the hearing, both parties will have an opportunity to present their evidence and arguments to the judge. The judge will consider all of the evidence presented and make a decision as to whether or not there has been a contravention of the court order or agreement.
If there has been, they will determine what penalties or consequences should apply. The judge's decision is final and binding on both parties, so it is important to ensure that you are properly prepared for your hearing.
Defences to a Contravention Application
When a party is served with a Contravention Application, they have the opportunity to defend themselves against the allegations made in the application. The respondent can argue that they did not breach the court order or agreement, or that there were extenuating circumstances for their breach.
Defences available to Respondents in a contravention application
The most common defences raised by respondents in contravention applications are:
- No knowledge of the order or agreement: respondents may claim that they were unaware of the existence of the order or agreement and therefore did not intentionally breach it.
- Inability to comply: Respondents may argue that they were unable to comply with the court order or agreement due to circumstances beyond their control. For example, if a parent fails to return a child on time because their car broke down, this could be seen as an inability to comply.
- Breach was necessary: In certain situations, such as when there is an immediate danger to a child's safety or well-being, breaching an order may be necessary. For instance, if one parent breaches an order by taking a child out of state without permission because they believed that doing so was necessary for their safety due to threats from another party.
Evidence required to prove defences
The success of any defence relies on evidence. If respondents want their defences accepted by the court as valid reasons for breaching orders or agreements, they must present evidence supporting their claims. If claiming ignorance of an order, respondents must show why such ignorance was reasonable given all relevant circumstances.
If claiming inability to comply, respondents should present evidence such as police reports or medical records. If claiming necessity, respondents must show why they believed that breaching the order was necessary and present any evidence to support this belief.
It is crucial to note that even if a defence is successfully argued, the respondent may still be subject to penalties for past breaches. Therefore, it is essential to avoid breaching court orders or agreements whenever possible.
Consequences of Breaching Court Orders or Agreements
Breach of court orders or agreements can have serious legal and personal consequences for both parties. The penalties for contravening court orders or agreements can range from a warning to imprisonment, depending on the severity of the breach.
In some cases, breaching a court order may also impact future parenting arrangements and property settlements. The Family Law Act 1975 (Cth) provides that a person who breaches a parenting order can face significant penalties, including fines, community service, and even imprisonment in certain cases.
It is important to note that each case will be assessed on its own merits and the court will take into account several factors when deciding what penalty is appropriate. These factors include the seriousness of the breach, whether it was intentional or accidental, and any evidence of good faith attempts to comply with the order.
Possible penalties for breaching court orders or agreements
The possible penalties for breaching a court order may include one or more of the following: - A warning: A contravention may result in a warning being issued by a magistrate.
- An order to attend counselling: If the breach is related to parenting arrangements, an additional requirement for counselling may be included in future orders. - Make-up time: If time has been denied without reasonable excuse by one parent then they might make up this time with their children at another agreed upon date.
- Compensatory time: If there has been more extensive loss caused by denying contact an application could be made for compensatory time with their child/ren at another agreed upon date. - Community service: In some cases you might find yourself having to complete community service as part of your sentence
- Fines: A fine can also be imposed where appropriate. - Imprisonment.
Impact on future parenting arrangements and property settlements
Breaching court orders or agreements can also have serious implications for future parenting arrangements and property settlements. A repeated pattern of non-compliance with orders may lead the court to restrict parenting time, change custody arrangements, or even require supervised visitation. The court may also take steps to enforce compliance with orders, such as garnishing wages or seizing assets.
In addition to the legal consequences of breaching court orders or agreements, there may be personal and emotional consequences as well. For example, a parent who repeatedly breaches a parenting order may damage their relationship with their child and undermine the child's sense of security and stability.
Similarly, a breach of property settlement agreements can create significant financial hardship for both parties and cause long-term damage to their credit scores. Overall, it is important to take compliance with court orders and agreements seriously in order to avoid the potential legal and personal consequences that come with breaching these obligations.
Tips for Avoiding Breaches
Communication and Cooperation
One of the most common reasons for breaches in parenting arrangements or court orders is a breakdown in communication and cooperation between parties. It is important to maintain open lines of communication and be willing to negotiate where necessary. Being able to discuss issues and come to a mutually agreeable solution can prevent the need for Contravention Applications.
Be Realistic
When creating parenting plans, agreements, or orders, it is important to be realistic about what you can commit to. Making promises or agreeing to terms that are not feasible will only lead to problems down the line. It's essential that you are honest with yourself and your ex-partner about your abilities and limitations.
Familiarise Yourself with the Terms of Orders or Agreements
It's important for all parties involved in a legal proceeding to familiarise themselves with the terms of orders or agreements made by the court. This includes understanding deadlines, expectations, and requirements placed upon each party. Knowing what you are obligated to do can help prevent accidental breaches.
Conclusion
Contravention Applications play an important role in enforcing court orders and parenting arrangements. They provide an avenue for individuals who feel that their rights have been violated under these agreements, ensuring that compliance is upheld by all parties involved in legal proceedings. However, it's also essential that individuals take proactive steps towards preventing breaches from occurring in the first place.
By being honest, communicating effectively, cooperating with each other, setting realistic expectations and familiarising oneself with the terms of orders or agreements made by courts can go a long way towards preventing disputes from arising in family law matters. With these tips in mind, we hope that you are better equipped when it comes time to navigate any legal proceedings related to family law matters.
If you would like help with a family law matter, book a time here to speak with a team member.
