What to do if you have been sent a document
    called "Contravention of Child Order"
                         Section 112...
person that the children will live with), and a specific issues order; because it shows
who will make the majority of the ...
What is a reasonable excuse?
Whether you have a reasonable excuse for disobeying an order depends very much
upon the type ...
promise to the Court and each other that they will obey the orders of the Court in the
future.

Usually, by reaching this ...
Different Judges or Magistrates do things a little differently, but what happens at Court
in this type of case is normally...
How do I tell the court the relevant things and the relevant
evidence that I want the court to know about?
The way that yo...
(cc) Whether either of them have made things difficult for the Court to try and
          get the case heard as quickly as...
Conclusion:
You must think about these cases very carefully.

Do not do things in these cases just because you are angry t...
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Section 112AD(1A) Family Law Act

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Section 112AD(1A) Family Law Act

  1. 1. What to do if you have been sent a document called "Contravention of Child Order" Section 112AD(1A) Family Law Act You have received a document called “Contravention of Child Order”. You are the person named at the top of the page underneath the heading “Notice to Respondent”. The person who has said that you have contravened the Child Order is in “Part A” of the document and is called “The Applicant”. What does the document mean? The document means that the applicant has said that you have done the wrong thing because you didn’t obey a Court Order that relates to issues of residence, contact or specific issues, AND that you didn’t have a good excuse for it. You must read all of that document very carefully. What court order does the applicant say that I have contravened? The applicant must tell you in the document what the order is that the applicant says you have contravened. You will find this order in “Part B” of the document or you will find the order in a page or pages attached to the document. The order may be: (a) A Residence Order This order deals with the person with whom children live. (b) A Contact Order This order deals with the contact that the children will have with certain people. (c) A Specific Issues Order This order deals with which decisions about the children can be made by one or more people. If you have an access order it will be treated as a contact order. If you have a custody order it will be treated as a residence order (because it shows the ______________________________________________________________________ Page 1 of 8
  2. 2. person that the children will live with), and a specific issues order; because it shows who will make the majority of the long-term and day to day decisions about the children. How does the applicant say that I have contravened the order? You will find this information in “Part C” of the document. The applicant must give you information in the document telling you things like how the applicant says you contravened the order, when this occurred and where this occurred. What do I have to do to contravene an order? There are a number of ways that you can contravene an order. These are:- (d) If you; (i) intentionally fail to comply (ii) make no reasonable effort to comply (iii) prevent a person bound by the order from complying with it (iv) assist a person bound by the order to disobey the order (v) remove a children from their carer (vi) hinder or prevent a person and the children from having contact (vii) hinder or prevent the children’s’ carer from discharging responsibility for their long term or day to day care welfare and development. AND (e) If you did not have a reasonable excuse for doing so. ______________________________________________________________________ Page 2 of 8
  3. 3. What is a reasonable excuse? Whether you have a reasonable excuse for disobeying an order depends very much upon the type of order concerned, and what happened when the order was disobeyed. A respondent has a reasonable excuse if he or she did not at the time of breaking the order, understand the obligations that the order placed upon them. AND The Court is satisfied that the respondent should be excused. When you are dealing with a residence, contact or specific issues' order, another reasonable excuse exists, if you believed on reasonable grounds that the contravention was necessary to protect the health and safety of a person AND That the period of time over which the contravention lasted was for no longer than necessary. This does NOT mean that a contravention will be excused because you did not like the order or that you felt that the order was not in the children’s interest. The question is whether the contravention is necessary for the protection, health or safety of a person. A reasonable excuse can also exist in any case if the Court thinks that it is appropriate and that the respondent should be excused. What do I do now? You must now think about whether you have contravened the order or not. If you have contravened the order you must think about whether you have a reasonable excuse or not. If you have contravened the order without a reasonable excuse you must think about anything that you may wish to tell the Court. If you think that the Orders the contravention proceedings have been about should be changed, you should make an application to vary the Orders. This can sometimes be done at the same time as the contravention proceedings. Whether you have contravened the order or not, you should think about counselling taking place in relation to the whole disagreement between you and the applicant. Whether you have contravened the order or not, you should think about whether you and the applicant can reach agreement without the case being dealt with by a Court. Often, the applicant and respondent reach agreement by one or both of them making a ______________________________________________________________________ Page 3 of 8
  4. 4. promise to the Court and each other that they will obey the orders of the Court in the future. Usually, by reaching this type of agreement, neither the applicant nor the respondent admit that they were wrong and it is a good way of dealing with these types of matters. What happens if I have contravened the order without a reasonable excuse? If you admit that you have contravened the order without a reasonable excuse OR if after a hearing, the Court says that you have done so, the next thing to think about is how the Court will deal with the matter. The Court has a very wide power to do what it thinks is best in each case. The options that the Court has included:- (f) to take no action (g) to make a further contact order if appropriate (h) to fine a person a sum of no more than $6,000.00 (i) to require the person to enter into a recognisance (j) to impose a sentence of imprisonment What do I do about court? You should look at the top of the document near the words “Contravention of Child Order”. This will tell you what Court you should go to, and what date and a time you should be there. You should read this part of the document carefully. You should go to Court on the date and time set out in the document. If you do not go to the Court then the Court can decide the case without you being there and without you telling the Court what you want to say. The Court can also issue a warrant for your arrest and have you brought before the Court. You should get legal advice about the case. You can represent yourself at Court if you do not get a legal representative. What happens at court? ______________________________________________________________________ Page 4 of 8
  5. 5. Different Judges or Magistrates do things a little differently, but what happens at Court in this type of case is normally like this. If you have a legal representative then your representative will advise you what you should do. If you do not have a legal representative then this is what to do:- (k) You will normally sit outside the Courtroom and wait for your case to be called by the Court Officer. You must sit close enough to the Courtroom so that you will be able to hear your case being called (l) When your case is called, you will go to the front of the courtroom where the Court Officer shows you. (m) The Judge, Judicial Registrar or Magistrate will usually read out the order that the applicant says you have breached and will read out how the applicant says you breached it. (n) You will then be asked whether you plead guilty or not guilty to the charge. You must answer this question. (o) Whether you say not guilty or guilty, the Court will often make an order requiring the applicant and you to go to counselling. The Court must do this if your case is about a contact order, unless there is a very good reason for not making a counselling order. Counselling will then be arranged as soon as possible. If you have been to counselling just before this Court appearance then the Court might not make you go again (p) If the applicant and you have been unable to reach agreement about the case then the next thing that happens is that you are asked whether you want to tell the Court anything about the case. (q) If you have said that you are innocent then you will want to be able to explain this to the Court. If you have said that you are guilty but with a reasonable excuse then you will need to explain this to the Court. If you have said that you are guilty then you will need to tell the Court things that are relevant to the question of the penalty that the Court may impose. (r) If you wish to tell the Court about some matters that are relevant to your case and if you want to get witnesses to help you in the case you should do your best to have this evidence ready on the Court date. (s) Sometimes the Court will adjourn the case to give you extra time to prepare your case or to get a legal representative. (t) If the Court adjourns the case, then sometimes the Court will make an order that will operate until the case comes back to Court. (u) Because the case concerns a child the Court will try to have the case decided as soon as possible. ______________________________________________________________________ Page 5 of 8
  6. 6. How do I tell the court the relevant things and the relevant evidence that I want the court to know about? The way that you tell the Court what you want it to know is by affidavit. If all you want to do is tell the Court things about the penalty it might impose then often the Court will let you say these things in Court rather than preparing an affidavit although this is not necessarily the case. If you want witnesses to give evidence on your behalf, then this must also be done by affidavit. An affidavit is a document that has numbered paragraphs containing the evidence that you or a witness wants to tell the Court. At the end of the document the person who is giving that evidence must take an oath or affirm that the contents of the affidavit are true. The person who signs the affidavit should read it very carefully to make sure that the affidavit is completely correct. Often you will receive an affidavit that has been signed by the applicant and any other witness that the applicant wishes to call to give evidence. You will often receive these affidavits when the “Contravention of Child Order” document is served upon you. The applicant must, as soon as possible, give you copies of any affidavit that the applicant is going to rely upon in Court. The evidence that the affidavits that you rely upon should include:- (v) A very short history of what has happened in the recent past that might be relevant to the allegation being made against you by the applicant. (w) Things that are relevant about the parts of the applicant’s affidavit with which you disagree. (x) Your version of what happened. (y) Any matters that can show the existence of a reasonable excuse (if appropriate). (z) Any matter that you might want to say about penalty. It is important that you are fully honest with the Court. What happens about costs? The general rule is that the applicant and the respondent should pay their own costs but Courts have a very wide power when it comes to the question of costs. Before the Court can make a costs order in this type of case the Court must think about a number of things like:- (aa) The financial circumstances of the applicant and respondent, (bb) Whether either of them have Legal Aid, ______________________________________________________________________ Page 6 of 8
  7. 7. (cc) Whether either of them have made things difficult for the Court to try and get the case heard as quickly as possible, (dd) Whether the case was started because the applicant or respondent didn’t comply with a Court order, (ee) If the applicant or respondent totally lose the case. If the Court decides that you have contravened a residence or contact order, and that a person has had to spend money or do things to return the children to where they should be, then the Court can order that you repay the expenses and do other things for that person. If the applicant and respondent reach an agreement about the case so that it doesn’t have to be heard by the Court, then normally each of them will pay their own costs. If there is no agreement and the case has to be decided by the Court, then in this type of case, the person who loses the case will often have to pay a lot of the costs of the person who wins the case. What costs have to be paid? There are many different types of costs and there are a number of different types of costs order that the Court can make if the Court thinks that a cost order should be made. If the Court makes an order for costs then sometimes it will describe the costs that have to be paid or tell the person how much they should pay. ______________________________________________________________________ Page 7 of 8
  8. 8. Conclusion: You must think about these cases very carefully. Do not do things in these cases just because you are angry that this case has been started or that you are angry with the applicant for other reasons. You should use this case to try to sort things out with the applicant so that both of you can work together for the benefit of the children. ______________________________________________________________________ Page 8 of 8

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