In the last part of the contravention series I am going to talk about what are some of the penalties or sanctions that a Court can impose if a contravention application is successful.
It will be important before filing a contravention application that you consider what result do you actually want. If you don’t want the other party punished (for example fined or imprisoned) for the contravention but simply with to enforce the Orders and get a resumption of the arrangements that were in the previous Order, then you should seek legal advice about whether an Application for Enforcement is a more advisable course of action.
Over this contravention seried on The Divorce Collective Podcast and here in my article, I have gone over how serious the FCFCoA takes contraventions of Orders of the Court. If the Contravention has been found by the Court then there are an array of different consequences that can be imposed on the parent contravening the Orders.
What will happen and how the Court treats the Contravention is of course a matter for the Judicial Officer and there might be different sanctions depending on the severity of the contravention and whether or not a reasonable excuse was found to have existed which gave rise to the contravention.
One such thing a Court can do is actually vary the Order, that is vary the original Order that was made. That’s right, they can vary it and make new Orders. Now the Court can vary an Order regardless of whether the contravention application was successful or not. If a Court is considering this action they must have regard to any parenting plan that might have come into effect since the Order was made and they will need to consider and determine if it is appropriate to vary the Order to include some other provisions (including any provisions in the subsequent parenting plan).
Another penalty the Court could impose is ordering the parents to attend some form of parenting program. That might be a post-separation parenting program, it might even be family counselling. The Court might even consider ordering the parties to attend a Family Dispute Resolution so that they can try to work through some of the issues and come up with a new arrangement that works for the family themselves.
The Court can also require the person who contravened the Order to pay a bond. That is a sum of money that is paid usually on a condition. So if you listed to my last podcast on reasonable excuse I mentioned a case where the mother was found to have breached the orders without reasonable excuse. Her penalty in that matter was paying $1000 bond on the condition that she be of good behaviour for 12 months. If she does that and presumably doesn’t breach the Order can the bond is returned, if not money gone.
The Court can make Orders that provide for make up time where time has been missed between a parent and a child due to the other parent’s contravention.
If the Applicant was not successful in establishing the contravention application then the Court can, and usually does, make Orders for the Applicant to pay the Respondent’s costs of defending the Application. But the same can also happen, that is where the application is successful the Court can Order the Respondent pay the Applicant’s costs.
In more serious breaches the Court can impose a community service term, a fine or even order a term of imprisonment. Yes the Court has sent people to jail for not complying with Court Orders.
I have covered the various penalties that could arise. The picture I am painting with these last three Contravention Series podcasts and articles is that you should not take complying with a Court Order as an option. It is not an option that you can elect to do or not to do. If you feel you can’t comply with an Order of the Court for any reason, get legal advice. If there are serious safety concerns that have resulted in you contravening Orders then get legal advice straight away, don’t simply comply forever more. Get legal advice about your options, whether you have a reasonable excuse, and a pathway forward to resolve the issues at hand as quickly as possible to get things back on track.
I hope you have got some value and information from this Contravention Series. Hopefully, you don’t find yourself in a situation where non-compliance with a Court Order is an issue for you and your family, but if you do reach out and let me help.
