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NSW Questions on Federal Circuit Court Contravantion Application

Discussion in 'Family Law Forum' started by Scooby, 21 December 2015.

  1. Scooby

    Scooby Active Member

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    Hi all,

    I am represented in my Federal Circuit Court case with a solicitor and continue to use him for the interim orders and final orders that I seek in regards to seeing my daughter.

    However, my ex-partner has contravened the family court orders made in our initial hearing, and will not let me see my daughter as per the orders. My solicitor is asking that I open up a contravention case against my ex-partner that will cost between $5,000 & $20,000. This is unaffordable on top of the main case at hand.

    I am looking to file a contravention myself, using the Federal Circuit Court contravention application.

    My question is;

    • As there in an AVO in place, no S60I certificate was issued, so I believe I need to file an 'Application in a Case'. Is this true?
    • Do I need to put forward my existing affidavit that I used to start the case to begin with?
    • Do I need to create an affidavit just within my 'Application in a Case' focussing just on evidence that my ex-partner is breaching the court orders?

    Any help would be greatly appreciated so that I may begin my contravention case.


    Regards
     
  2. ourlawisnotfair

    ourlawisnotfair Well-Known Member

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    Hi Scooby,

    I'm not a lawyer or affiliated so please take my words with a grain of salt. I have had the experience of being on both sides of a contravention case so I can somewhat understand your dilemma.

    I believe it is an option to either bring a "contravention application" or "application in a case" against the other party for their breach in orders. Both require an affidavit to accompany when filing which sets out your alleged breaches. The only difference between the two applications is "a contravention" means you're asking for punishment to be brought upon the contravening party whereas "app in case" means you're simply bringing it to the attention of the court and asking that orders be changed to accommodate your loss or discrepancy in the orders so that breaches are not easily made.

    Both applications are fairly intense and a lawyer is always best, however, can be done self-rep.

    In your case, my suggestion is (because of the avo against you specifically, the other party already has the upper hand). So if you can't afford legal rep for the application then I'd be simply submitting an affidavit outlining breaches and situation of the other parties nonpositive parenting behaviors. Be sure to keep affidavit points on key subject points and non-emotional, no dissing the other party. Show what good you have done, not what bad your ex has done.

    You don't need to put any affidavits before the judge that are already filed in your matter, you can refer to them but resubmitting generally annoys presiding judges.

    Saying all that, should you go ahead with a contravention app and the other party is found to have not had reasonable cause to withhold or whatever the breach may be, you if you are successful then this "win" carries an enormous amount of weight when or if your matter goes to trial. If you are unsuccessful and with avo on top of the failed contravention you are in a very bad position to have your case taken seriously.

    Whatever it is you decide to do, ensure you have limited contact with your ex and any that you do have is directly related around the child only. Be very careful to keep your cool. Many women rely on the avo to get them across the line in family proceedings and 9 times out of ten it does. So stay calm even though she is knowingly purposely baiting you! And even more frustrating is her ability to use your child as the bait.

    Be smart and show the court just how calm you can be in the face of her

     
  3. Scooby

    Scooby Active Member

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    Very informative post thank you so much for your time!
     
  4. Tim W

    Tim W Lawyer

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    I don't do Family Law work , and I have no idea what fair market rate is in the place where you live,
    but I suggest that a 400% range of variance in what it could cost
    is bollocks, and you should ask for a revised estimate.
     
  5. sammy01

    sammy01 Well-Known Member

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    something you wrote concerns me; specifically,

    "As there in an AVO in place, no S60I certificate was issued so I believe I need to file an 'Application in a Case'. Is this true? "

    Can you explain what you mean?

    I'm gonna give a different perspective. Don't bother with the contravention. Mate, you've got enough to worry about and enough stress in your life. Ask your solicitor if it will be possible to alert the magistrate of the fact that the ex has breached the interim orders when you have your next hearing. If it is possible to raise it at the next hearing, then I reckon that is worth doing. \


    My logic goes like this:

    1. You don't need the stress of doing the contravention.
    2. The ex will probably only get a slap on the wrist, so a whole lot of stress on your part for no significant result. Besides, the ex can claim she didn't understand or had anxiety because of the alleged violence, blah, blah...

    But if your solicitor can make sure the magistrate becomes aware of the contraventions at your next hearing, well that helps to start painting a picture of the ex in the magistrates mind.....

    But again, all I'm doing is giving an alternate way of thinking, maybe ask those questions of your solicitor, but you could also get your solicitor to write to her solicitor and outline the breaches and ask for makeup time, etc...

    In short, start applying some pressure on her because the other thing that you've got to think about is that you don't want the ex thinking that she can just get away with breaching, otherwise, even once you've got final orders, she won't comply, and I hate to say it but some people just never comply with the orders and then you just spend your whole life running back to court with contravention after contravention and it just goes on and on...

    So on that note, when seeking final orders, try to make it so you're picking your kid up from school.

    Just makes it heaps harder for mum to withhold...
     
  6. Anubis

    Anubis Well-Known Member

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    I would not worry about a contravention. Yes it is costly. Save your money for final hearing.

    You have the orders in place. Keep a detailed diary of her contraventions. Get your Lawyer to write to hers for a please explain and put it all in your trial affidavit.

    Is there an ICL?

    If it becomes too painful and ongoing relist
     

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