Breach of Consent Orders

Contravention of orders

The Legal Term for a breach of orders is contravening’.

 

A person will contravene a Court Order if they:

 

  • Intentionally do not comply with the Order
  • Do not reasonably attempt to comply with the Order
  • Intentionally prevent someone else who must comply with the Order from doing so
  • Assist someone else to contravene the Order

 

If you are accusing someone of a contravention, you must:

 

  • file a formal, written Application to the Court for Contravention of a Court Order
  • prove that, on the ‘Balance of Probabilities’, it is more likely than not that the breach occurred

 

If you have contravened a Court Order, a Court can accept an excuse and waive penalties if it is a ‘reasonable excuse’. This might be when the Party who contravened the Order:

 

  • Did not understand the obligations of the Order
  • Believed, on reasonable grounds, that the actions that caused the breach were necessary to protect the health or safety of themselves, a child or another person
  • This is only reasonable if the time that the person was in breach of the Order was only as long as necessary to protect for health or safety reasons

What can a court do?

If the excuse is not accepted by the Court, then the Party that is found in ‘Contravention’ of the Order will face a penalty. This will depend upon the type of breach and the circumstances of the case.

 

The Court will consider:

 

  • Whether the breach is a minor or major contravention
  • How many times the Order was breached
  • Why the Order was breached
  • Other personal circumstances of the case

 

The Court can order the Contravening Party to:

 

  • Receive a Warning
  • Attend a post-separation parenting program
  • Pay all of some of the legal costs of the other Party
  • Paying a fine
  • Participate in community service
  • Pay compensation or reasonable expenses lost because of the breach
  • Enter into a bond
  • Be imprisoned
  • Not see any children of the marriage

 

The Court also has the power to:

 

  • Change the Order
  • Suspend the Order
  • Discharge the Order
  • Renew any earlier Orders, either in part or whole
  • Make an Order compensating the other Party (not in breach) for lost time with children of the marriage
  • Adjourn the matter and allow either Party to make an Application for a further, different Order instead

 

IMPORTANT: For the imposition of more serious penalties (such as major fines, a bond, community service or imprisonment), the Court may want to be satisfied ‘beyond reasonable doubt’ that the contravention occurred. This is a more difficult legal test than the ‘balance of probabilities’.

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