My ex is not complying with parenting orders. Do I still need to go to mediation?
The short answer is yes – most of the time.
There are certain circumstances where mediation is required and other circumstances where an exemption is possible.
One of the circumstances where an exemption is possible, relates to Contravention Applications.
If a parenting order made by the Court is not being followed, you can file a Contravention Application.
However, the Court expects that people will attempt to resolve issues without litigation, and unless there are extenuating circumstances, that means you will have to attend mediation first.
Under the Family Law Act, unless there are circumstances of urgency, a child is at risk of harm, or the parenting order was made within the last 12 months, you cannot immediately file a Contravention Application without attempting some form of dispute resolution such as mediation.
If mediation is not successful, you then have a couple of options.
If you simply want the orders to resume as before, an Enforcement Contravention is appropriate. If you want the other party punished for the breach of the orders, a Contravention Application may be your best choice.
To be successful with a Contravention Application, you must prove:
- The other person contravened the orders, and
- The other person had no reasonable excuse for not complying with the orders
If both parties have been legally represented, it will be difficult to prove the orders were not understood. It’s also important to note that a person’s belief they were protecting a child is considered subjective, and the Court will often not find that as a reasonable excuse.
One of the benefits of attending mediation before filing a Contravention Application is that it will give you an opportunity to discuss with the other party what the issues are and why they are not complying with the orders.
It may be a simple breakdown in communication that can be solved at mediation.
The most significant benefit is time – filing court applications and getting them before a judge can take months, and the outcome may not be in your favour. Attending a mediation which ends in an agreement provides you certainty, quickly.
Contravention applications come with risks and an unsuccessful application could result in you paying the other party’s legal costs.
Legal advice is essential. If you are facing difficulties in enforcing parenting orders or wish to change them, please contact our office to make an appointment with one of our experienced, specialist family law solicitors.
Contact Michael Lynch Family Lawyers on: (07) 3221 4300 or email: [email protected]
