What Happens When Consent Orders Are Breached?
When Consent Orders are breached, the Court can respond in a few ways, including giving a warning, making one party attend a parenting program, issue a fine, pay for some or all of the other parties legal costs, or even in serious cases imprison the party who has made the breach.
Consent orders are agreements reached between parties in a family law matter. They are designed to be legally binding and enforceable by the courts.
What Exactly is Defined as a “Contravention?”
A contravention occurs when a party fails to comply with an order in a consent order. There are two types of contraventions:
- A “simple” contravention, which occurs when a party has failed to comply with one or more of the obligations under the order. For example, if the order requires a party to pay child support but they fail to do so, this would be a simple contravention.
- A “serious” contravention, which occurs when a party has:
- Intentionally failed to comply with the order;
- Their conduct shows a blatant disregard for the order; or
- The contravention has resulted in or is likely to result in harm to the child or serious harm to their psychological wellbeing.
If You Breach a Consent Order, What Happens?
If you breach a consent order, the other party may apply to the court for a contravention order. This application must be made in writing and set out the alleged contravention and the orders sought by the applicant.
The court will then consider the application and may issue a summons requiring you to attend court.
Penalties for Breaching an Order
The penalties for breaching a consent order can be severe, particularly if it is a serious contravention.
If the court is satisfied that you have breached the order, it may make orders to address the breach, including:
- Compensating the other party for any loss or damage suffered as a result of the breach;
- Varying the existing order to make it more workable or to prevent future breaches;
- Imposing additional conditions on the existing order to prevent future breaches;
- Requiring you to attend a post-separation parenting program;
- Imposing a fine or imprisonment; or
How Do the Courts Manage a Contravention of a Consent Order?
The court takes contravention of a consent order very seriously. When a party applies for a contravention order, the court will hear evidence from both parties and make a decision based on the evidence presented.
If the court is satisfied that a party has breached the order, it will make orders to address the breach.
The court will also consider the best interests of any children involved and make orders to protect their wellbeing.
What should you do if a parenting order has been breached?
If a parenting order has been breached, it is important to try to resolve the matter through communication with the other party before taking legal action.
This can involve raising your concerns with the other party directly or through a dispute resolution process such as mediation.
If this does not resolve the issue, you may need to seek legal advice and consider filing a contravention application with the court.
How should a court order breach be reported?
If you believe that a court order has been breached, you should seek legal advice and consider filing a contravention application with the court.
The contravention application should include details of the alleged breach and any supporting evidence.
The court will then consider the application and determine whether there has indeed been a breach of the court order.
What is the Standard of proof for contravention of court orders?
The standard of proof for contravention of court orders is the balance of probabilities. This means that the court must be satisfied that it is more likely than not that the breach of the court order occurred.
However, the court must also consider whether there was a reasonable excuse for the breach.
What is considered a Reasonable excuse for contravention of court orders?
A reasonable excuse for contravention of court orders is one that is considered acceptable by the court. The Court has significant discretion, and will usually consider the specific circumstances involved.
Examples of reasonable excuses may include:
- unexpected events or circumstances, or
- where the breach was necessary to protect the safety or wellbeing of a child.
However, it is important to note that what constitutes a reasonable excuse will depend on the individual circumstances of each case, and the court will consider each case on its merits.
Who is Involved in Contravention Proceedings?
Contravention proceedings involve the parties who entered into the consent order, namely the applicant and the respondent. If the court is satisfied that a party has contravened a consent order, the court can make orders to address the breach, and in some cases, impose penalties.
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