My partner has breached the order – Do I need to go to mediation?

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. A contravention application can be filed where one party alleges that the other party has not complied with the orders of the court.

It might be that a party has not allowed one party to call the children at the allocated time. A party might have refused to attend a changeover, or to allow the children to spend time with other party. They may have been consistent occasions on which orders have not been complied with. In those circumstances a party can file an application for contravention. This type of application sets out the alleged breaches of orders and asks the court to penalise the other parent for those alleged contraventions.

If the order which is alleged to have been breached was made within 12 months of the application, that is, within the last 12 months, then it is not necessary to attend mediation and you can apply for an exemption. If it is more than 12 months since the orders were made, then you must first attend on a family dispute resolution practitioner and make a genuine attempt to resolve the matter before filing your application for contravention.

One of the benefits of attending mediation before filing your contravention application is that it will give you an opportunity to discuss with the other party what the issues are and why it is that they have decided not to comply with the orders. It may be that the mechanism for the phone calls no longer works. It may be that the day or time on which the phone calls are to have occurred are no longer convenient and there has been a breakdown in communication about that.

It is also important to understand the process involved. When an Application – Contravention is filed it first goes before a Registrar of the Federal Circuit Court of Australia. It is the role of the Registrar on this occasion to see whether or not the issues can be resolved. The Registrar will not make any decisions about the matter. If the matter remains in dispute then it will be referred to a Judge.

It will take perhaps two months or so to get before a Registrar and then potentially another two to three months to go before a Judge. On the first occasion that your matter is before a Judge, the Judge will consider it and make directions about when the contravention application can be heard. It will not be heard on that occasion. Your matter will then be adjourned away to a date on which the Judge can deal with the application.

Three court appearances later, and you may finally have a hearing about the contravention. The outcomes of contraventions vary. It is important to understand that the Court can decide that a party has a reasonable excuse for contravening an order in circumstances where they reasonably believe that the steps they are taking are to keep the children safe.

It may be that you get all the way to your contravention hearing, the Judge confirms that the order has been breached, but ultimately decides that the person who breached the order had a reasonable excuse for doing so. If a person is found to have breached an order and they are also found not to have a reasonable excuse, then the court can deal with the matter in a number of ways.

More often than the court will consider the following options: an order that the person enrol in a parenting course, an order for make up time, alternate orders so that the issue does not arise again.  If the contravention is more serious a fine or a good behaviour bond and if it is a very serious offence then jail.

In addition to avoiding long delays in the court system there is great benefit in having the opportunity to sit down and discuss what is happening to cause difficulties within the orders. It might be that communication has broken down such that the parties are no longer able to communicate.  Having a mechanism in mediation through which those discussions facilitated by an experienced family dispute resolution practitioner is of great benefit to the parties. 

The most significant benefit is that of time. The court system is delayed and the outcomes before the court are unknown. A mediation which ends in an agreement provides you with certainty quickly.

Ultimately, if you attend mediation and it is not successful, whilst you won’t be able to repeat what happens in the confidential mediation process, you will at least have an understanding of what the issues are and see if there are other steps you can take to resolve the matter.