Contravention Applications – What Are They, and Should I Bring One Before the Court?
Even if parents go through the lengthy and expensive process of obtaining Orders in relation to their children, it is a sad reality that one, or both, won’t comply with them. Aside from causing angst and uncertainty, it can lead to significant difficulties moving forward.
Although attending Court should always be viewed as the last resort, often a parent may need to bring a Contravention Application before the Court. As it sounds, a Contravention Application is an application to the Court indicating that the other party isn’t complying with an Order, and seeks Orders to address it. They can be used to impress upon the contravening party that the Orders must be obeyed, and to make necessary adjustments to the Orders to remove difficulties preventing them from being followed.
The Orders that can be requested from a Court depend on the seriousness of the contravention, or if contraventions have happened previously. In general terms, the powers of the Court can include:
- Ordering make up time
- directing that Orders be changed
- requiring attendance at post-separation parenting courses
- placing people on bonds
- ordering community service and in the most serious cases, imprisonment.
The last of those powers is generally reserved for people who flagrantly and consistently breach Orders or run away with children.
A party can argue against a Contravention Application by producing a reasonable excuse for the breach. One example is when a child is not made available to spend time with the other party and the defending party indicates it was because the child was unwell. A medical certificate produced to the Court confirming the illness will generally amount to a reasonable excuse. Another example is if a child will be placed in a dangerous situation if time with the other parent is allowed, and the party takes steps to protect the child from harm (in particular, the risk of family violence or abuse).
Even if a Court finds that there is a reasonable excuse, it can still make an order compensating a person for time lost, but does not have power to make another order.
It is my view that sometimes a Contravention Application is brought for matters that aren’t serious enough to warrant the Court interfering with those Orders. Furthermore, a Contravention Application sometimes papers over a more fundamental difficulty with the Orders – in which case, an Application should be brought to change the Orders rather than seeking to punish the person not complying with it.
If you are subject to a set of Orders that you are not complying with, or the other parent is not complying with, and wish to obtain advice as to whether a Contravention Application is the appropriate way forward for you, please do not hesitate to contact our Family Law Accredited Specialists: