A new streamlined approach to enforcing orders

Posted on April 5th, 2017

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The enforcement of parenting orders in the Family Law Courts has long been a difficult issue, as:

  • Judges generally do not welcome these applications, as they are often the product of a more serious underlying issue which cannot be fixed by a penalty; and they take away from the very limited time the Court has allocated to it to determine substantive proceedings (the final orders application).
  • Solicitors are mindful of the Court’s view, and the higher risk of costs orders for parties (both applicants and respondents), and are careful when determining whether or not such an application should be brought.

However, with the increasing number of self-represented litigants in the Court system, the prevalence of these applications is increasing as people look for a “quick fix” to the problem.

The difficulty, however, is that the legislation underpinning the contravention system is penalty focused; rather than solution focused.

In an effort to address this issue, the Newcastle Registry of Federal Circuit Court has adopted a new process in relation to Contravention Applications, including:

  • All applications will now be triaged by a Registrar who will try to determine what the Applicant is trying to achieve and the outcome they are seeking.
  • The Registrar will then consider with the Applicant and Respondent whether this type of application will achieve that outcome for them.
  • The Registry is taking a more active role in ensuring that Contravention Applications and supporting Affidavits are satisfactorily prepared; and documentation that is not properly prepared will be returned and not accepted for filing. While this may cause some difficulties for some self-represented litigants; it will ultimately save time and cost to all parties as the lack of evidence is identified at the beginning, rather than at the time of hearing (when the application would otherwise be dismissed for a failure to prove the breach or contravention).

It is envisaged that this process will streamline Contravention proceedings, so that only those proceedings that actually need determination by a judge will actually reach the judge.  Other matters where a solution is being sought can be addressed in other ways. It is hoped that this will save costs to the parties; and save time for the judges – which will allow the Court more time to hear parenting and property matters where there are no orders in place or only interim orders which need to be determined on a final basis.  The ultimate goal is to provide a better outcome for parents and children.

Ashleigh John, Associate Director at Mullane & Lindsay Solicitors, NewcastleAshleigh John is an Associate Director and Accredited Specialist at Mullane & Lindsay Solicitors and practices extensively in Family, Relationship and Matrimonial LawIf you require any assistance in this area please contact Ashleigh John to arrange a consultation or contact our Newcastle office.

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