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NSW Contravening Family Court Orders - Insights?

Discussion in 'Family Law Forum' started by Natalieinthegarden, 8 September 2015.

  1. Natalieinthegarden

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    I am a novice in relation to web posts so please forgive if I have not followed the correct path...

    I'm appearing in court tomorrow morning regarding my decision to contravene the Family Court Orders. I am acutely aware this can be quite the heated topic therefore I will not get into the lead up/catalyst of this.

    My ex & his heavily invested solicitor have issued subpoenas in relation to me with
    - Police
    - Medicare
    - PBS
    Information sought all way back to Jan 2010.

    There are domestic violence issues that have been denied by my ex - however there is categorically zero grounds for such intrusive actions & other a couple of outrageous allegations in the 385 paragraphs of the filed Affidavit there is really nothing notable that warrants such actions.

    I am absolutely of the belief this is an attempt to intimidate & cause distress to me

    I have eventually managed to get my solicitor to file an objection based upon relevance however I was informed by the barrister that as it's a Family matter the magistrate will grant all requests. .. is this correct?


    Furthermore - how does the Family Court define/catagorise 'Minor breaches' & 'Serious breaches' other than on the grounds of lack of reasoning?


    I have searched for examples of contraventions in order to determine when & how the Magistrate imposes sanctions other than vary orders - are you able to provide any insight?

    Thankyo
     
  2. AllForHer

    AllForHer Well-Known Member

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    @Natalieinthegarden, this sounds like a more complex matter than what we are hearing about here, so any guidance we provide can only be very limited. I assume this is a parenting matter, so I've addressed it as such.

    The barrister is probably correct about the subpoenas - family law matters are heard under a 'less adversarial' hearing, so the rules of evidence are in some ways more lax than they would otherwise be. It's often the case that the judge will grant whatever avenues a party seeks in order to make their argument in favour of the children's best interests. If there is a significant history of unusual drug use, psychiatric treatment or criminal behaviour, for example, it would be in the children's best interests for the judge to know about that, as it would be given consideration when determining an outcome.

    If you're looking for examples of how the court handles contraventions of parenting orders, a simple search of the Austlii case database is your best bet - http://www.austlii.edu.au/. Family law cases are decided in both the Family Court of Australia and in the Federal Circuit Court, so you may wish to search each of those databases for cases involving contraventions. However, remember that family law is determined on a case-by-case basis, making it impossible to wholly and accurately predict outcomes based on the outcomes of other cases similar to yours. It's also dependent on your judge, as they each deliver very different decisions for what can often be very similar cases.

    In terms of legislation, section 70NAA explains that contraventions made without reasonable excuse can be dealt with as 'less serious' or 'more serious' contraventions, and this essentially comes down to how to you pitch your case to the judge. If it's the first time you've contravened orders and it's something minor, like forgetting to inform the other parent about a doctor's appointment, then it may be considered a less serious contravention. If, however, it's something like refusing to facilitate the other parent's time with the children, and you have in some way demonstrated no intention to follow that order in the first place, then it may be dealt with on a more serious basis. Sections 70NEA to 70NEG of the Family Law Act 1975 explains how the court deals with less serious contraventions of orders, and Sections 70NFA to 70NFJ explains how the court deals with more serious contraventions.

    I hope this helps.
     
  3. AllForHer

    AllForHer Well-Known Member

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    I've read your reply in the other thread, but to try and keep things together, I will post my reply here.

    In terms of contravening orders, the court will determine from your evidence whether you had a reasonable excuse for doing so, and if a reasonable excuse has not been established, then it will determine whether the contravention is less serious or more serious, and make a decision about how to best address the contravention.

    This is the part that's most impossible to predict. If the orders are interim orders (ie. Temporary orders while proceedings are under way for final orders to be determined), then the court may not punish the contravening parent per se, but instead consider this as a reflection of your capacity to recognise the children's best interests and support their relationship with the other parent.

    Incidentally, a failure on the primary caregiver's part to support the child's relationship with the other parent has often emerged as the leading reason as to why the court orders a child to live with the other parent, so it's best to follow the orders and show that you're committed to ensuring the children can enjoy their right to know, spend time and communicate with both parents.

    If the court does make orders for a contravention, though, it can do so by ordering anything from a bond, right through to imprisonment. It depends on what the contravention is, really, among other things. If time between parent and child had been withheld, for example, the court may make orders for make-up time, or it may order a change of residency if it feels the children's best interests are not otherwise being met.

    Have you attended a post-separation parenting course as yet?
     
  4. Natalieinthegarden

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    Thankyou for responding.

    In answer to the posed question regarding 'parenting after separation' courses -
    * No, I haven't as my Orders were in fact granted in mid 2010, when my child was only 12 months old & would be of little benefit when the primary issue is the undeniable need to keep my child safe.

    I am acutely aware of how the Court may perceive contraventions, particularly in the absence of evidence of any potential 'reasonable excuse'. The motivation to provide such negative & worst-case yet generalized information is somewhat unnerving & is suggestive of inappropriate stereotyping.

    Thanks again however i have decided to disengage
     
  5. AllForHer

    AllForHer Well-Known Member

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    Indeed, what we are told is rarely ever what we want to hear in parenting matters, but such is the nature of the beast in family law proceedings. Good luck with your case.
     

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