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Family Law

Don’t Expect Costs if You Win a Contravention Application in Parenting Matters

By October 10, 2016No Comments

By Sharla Stevens

When a parent breaches court orders the other parent is entitled to file a Contravention Application in Court seeking a variety of orders, some of the most common being:

  1. Orders for additional time with the child to make up for any lost time due to the other parent’s breach of the court orders (e.g. if that parent has withheld the child);
  2. Orders for the parent to complete a parenting course;
  3. Orders that vary the original parenting orders, which may then ensure both parties are able to comply with the orders, or to clear up any confusion in the terms of the orders.
  4. Orders for the other party to pay their costs.

Where the contravention is established and the other parent has no reasonable excuse as to why they breached the court orders then under Section 70NFB(2)(g) of the Family Law Act 1975 (Cth) the Court is able to make an order that the person who committed the contravention pay all of the costs of the other party.

There is an exception to this, though, in Section 70NFB(1)(a) that states that the Court is not required to make an order for the person who committed the contravention to pay all of the costs of the applicant where it would not be in the best interests of the child concerned to make that order.

This exception was applied in a recent race of Roffe & Huie [2016] FamCAFC 166 where the Judge refused to award costs to the father against the mother who was found to be in “serious contravention” of a parenting order by repeatedly withholding the child from the father without reasonable excuse. The Judge in this case found it would not be in the best interests of the child to make an order for costs as it was found that the mother was in poor financial circumstances and potentially could not satisfy a costs order without the sale of her home, which the child lived in. The father appealed the decision to the Full Court of the Family Court of Appeal but lost his appeal as the Full Court agreed with the trial judge that it was not in the child’s best interests to make an order that would result in the mother having to sell her home.

If you require legal advice in relation to a contravention matter please contact Cristina Huesch or one of our solicitors, Sharla Stevens or Angela Li, on (02) 6223 2400.

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