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| Contravention proceedings....what to expect? | ||
| What will happen when I get to court..do I need a lawyer or representation? | ||
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Posted 30 June, 2009, 09:45 PM
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General Member
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Hi. I have served my ex partner with contravention papers and an affidavit... we are to appear in court very soon. What will happen when I get to court? Do I need a lawyer or representation? Regards. |
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| Contraventions - The Act | ||
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Posted 30 June, 2009, 11:52 PM
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Percolo Alio
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As you are in WA you will be in the Family Court and assume the contravention is over contact matters. Obviously the mediation (PDR) Primary dispute resolution has not resolved the issues. The thing about contraventions is they can be won and lost in the same hearing. You can win the contravention in that you have proved a contravention did occur. Then in the second round you can lose just as easily if the other party has a "reasonable excuse".. There are range of sections dealing with this in the ACT. Contravention within 12 months of orders being made relates to Paragraph 60I(9)© excludes participation in family dispute resolution in circumstances where a Part VII order relating to an issue in a current contravention application is made within the 12 months before the application and the court is satisfied on reasonable grounds that a person has shown serious disregard for his or her obligations under that order. This is an objective test. If the contravention relates to orders made over one year ago it is more likely that the issue can be resolved outside of the court system and attendance at a dispute resolution provider would be more valuable. It would be unreasonable to delay the courts consideration of a contravention order, where the contravention is affecting the original order made relatively recently by the court as the parties would have had to go through dispute resolution options prior to obtaining the initial orders. This is also an exception from dispute resolution in the pre-action procedures of the Family Law Rules 2004 (Rule 1.05(2)) Of interest also is subsection 70NAA(3) which outlines the different provisions that will be applied by the court in assessing contravention applications. In particular it summarises the key differences in the application of Subdivisions C, D and E. Subdivision C Applies where a contravention is alleged to have occurred, but is not established. This may include situations where there is an application but the court decides it can deal with the matter without making a finding about the contravention. Subdivision D Applies where the court makes a finding that a contravention has occurred, but there is a reasonable excuse for a contravention. It sets out the powers of the court to make orders in that situation. Subdivisions E and F apply where the court finds that a contravention has occurred and there is no reasonable excuse. Whether Subdivision E or F applies is a matter for the court to determine and will depend on the seriousness of the contravention. Subdivision E covers the cases where there is a less serious contravention application and Subdivision F covers cases where there is a more serious contravention application, including where there are repeated breaches of orders. The Family court, particularly, seems to be more reluctant to get excited about a one off contravention of orders and needs (from our looking at cases), either a more substantial contravention or repeated contraventions. In all cases you MUST prove a contravention. You need solid evidence. The Subdivisions set out the powers of the court to address contraventions in each category. The range of options for the court in each situation have been significantly increased in teh current Act. Read section 70NAC Meaning of contravened an order Section 70NAC sets out what it means for a party to have contravened an order under the Act affecting children. To assist all users of the Act, particularly self-represented litigants, a note is inserted after section 70NAC to highlight that an action that would otherwise contravene a parenting order may not be a contravention if it is consistent with a subsequent parenting plan. This is because under new section 64D (inserted by item 25 of Schedule 1), parenting orders may be subject to a subsequent parenting plan. Where a parenting order includes a section 64D order, then a contravention application cannot be brought to enforce the original order if there is a subsequent parenting plan that has changed that aspect of the original parenting order. I think that is simply common sense. For example, there may be a parenting order that provides that the child is to live with each parent for a week about. As the child gets older and the child's needs change the parents may agree, using a parenting plan, that it would be in the best interests of the child that the child change residence each fortnight. The new provision 64D would prevent either of the parents bringing a contravention application against the other person to seek to enforce the original orders. The parent no longer happy with the arrangement agreed in the parenting plan will need to either seek to negotiate a new agreement or seek to get new parenting orders. Section 70NAD - Requirements taken to be included in certain orders Important is section 70NAE Meaning of reasonable excuse for contravening an order. Section 70NAE sets out what constitutes a reasonable excuse for contravening a parenting order. Where there is a reasonable excuse the court is required to ensure the person understands their obligations under the order and consequences if the order is again breached. An example of a reasonable excuse is action necessary to protect the health or safety of a person, including the respondent or the child. Also take a look at section 70NAF Standard of proof Section 70NAF provides clarification of the standard of proof to be applied by the court in considering enforcement applications. The old test provided by section 140 of the Evidence Act 1995 is the civil standard of proof, the balance of probabilities, with the court to take account of the gravity of matters. Section 70NAF aims to assist practitioners and self-represented litigants by clarifying the circumstances in which the court will apply a different standard of proof. Subsection 70NAF(1) specifies that the court should generally apply the civil standard of proof, the balance of probabilities, in considering matters in proceedings under Division 13A of Part VII of the Act. This is subject to subsection 70NAF(3), which provides that a stricter standard applies to orders being considered under the more serious contravention applications that may incur a criminal penalty under provisions in Subdivision F. 70NAF(2) clarifies that the court should also apply the civil standard when determining whether a person had a reasonable excuse for having contravened an order affecting a child under this Act. This approach should mean that it is easier for many less serious contraventions to be dealt with by the court as they will not need to be treated as a quasi-criminal proceeding. 70NAF(3) provides that a stricter standard of proof, requiring the court to be satisfied beyond reasonable doubt, applies to matters to which Subdivision F applies when a court is considering a criminal consequence for the contravention of an order (for example, imposing a bond, a fine, or a sentence of imprisonment). This is appropriate given the consequences for the individual of orders that impose criminal sanctions. In general a range of penalties apply but often make up time is ordered. There have been rare occasions when jail sentences are ordered in the Federal Magistrates Court and usually on appeal the Family Court has reduced the term of sentence or overturned the rulings. In WA you do not have the Federal Magistrates Court and if the Attorney General has his way we might not have it much longer on the East coast either. That is another story for another day. Take great notice of 70NEA as that is the section which is a "Gotcha!" for inexperienced litigants. This section has no real "rule of evidence" or "standard of proof" applied so you need to be really mindful of this in any contravention. Some of our more experienced SRL executives have a lot of experience in hearings and will probably comment. Would I be self represented? In WA I would have to give it a lot more thought than in the East as the Federal Magistrates seem to do much of this sort of work and they seem to apply a lot more normative jurisprudence (The Federal Director SPCA will banish me for the use of these sorts of words) in relation to these sorts of matters. In other words.. They seem to look at what is the proper function of the law in this instance? What sorts of acts should be subject to punishment, and what sorts of punishment should be permitted? What is justice in this matter?  Was my post helpful? If not, please let us know how we can do better If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity |
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