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Lodging two applications at the same time: Contravention application and an application for change of orders

Can I lodge a contravention application and an application for change of orders at the same time?
The court helpline will answer that.  I thought I had already said that you can lodge a contravention application and an application in a case.  I just don't know whether they can be lodged on the same day or not but you can certainly lodge the contravention one day and the application in a case a few days later.  That is what happened to me.

You can lodge as many applications in a case as you want.  I don't see how a few days will make any difference because they will both be discussed on the first mention anyway.

God grant me the serenity to accept the things I cannot change, courage to change the things I can and the wisdom to know the difference.
Thanks for your reply, I wanted to create a new post to give more visibility to this subject. I just didn't understand why the helpline told me that I technically could do it but the court didn't like that and I had to choose whether I prefer lodging the contravention application or change of orders.
I was reliably informed by my exes Barrister that a contravention application is one way of getting new orders.  He used a lot of technical jargon and pointed out the parts of the legislation that backed him up
'Section 70NBA provides a facility for effection a variation to a primary order' and 'a hearing of parenting proceedings throught the pathway provided by s.70NBA of the Act.'

The decision of the full court constituted by Warnick J and Sandler and Kerrington (200&0 FLC Para 93 - 323 illustrates the availability and potential use of s70NBA to obtain a variation of parenting orders  but makes it clear that the court must apply the provisions of s60CC in determing any such variation as it would in any other parenting orders (p 81 para 48)
I haven' t looked this all up as a) there was an application in a case to change the orders and b) there is a change of circumstances, a major one (like yours)

So in my opinion and experience, don't worry what the court said.  You are entitled to make a contravention application and you are also entitled to make an application in a case to change the orders. 

God grant me the serenity to accept the things I cannot change, courage to change the things I can and the wisdom to know the difference.
pema_sydney said
I just didn't understand why the helpline told me that I technically could do it but the court didn't like that and I had to choose whether I prefer lodging the contravention application or change of orders.

Perhaps what they were trying to say is that the application should be one single application for contravention that also included what orders (the change of orders aspect) should be applied if the contravention is found to have occurred. Please note that I have little experience of Family Law. Hopefully an SRL-R, as indicated by their distinctive SRL logo (as below), will clarify the best way forward.

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Last edit: by MikeT

Pema

I think  you are nitpicking a little here.  It really doesn't matter what order or how you do it as far as I can see and I am an SRL and have experience in this actual matter as that is exactly what I am in court for in 6 weeks for a final hearing.  I have been through the whole business from the initial contravention application (lodged against me) to the Application in a Case that got lost when the papers were moved interstate, to my own Application in a Case because the other parent's got lost to a second Application in a Case to relocate the proceedings because the other parent wasn't happy with the date given!

I have been to court 3 times and represented myself and also attended mediation about this particular matter.

You would probably have no trouble getting a rehearing of the original orders as you have relocated to Australia from overseas which is a huge change of circumstances.  But as your ex is contravening the orders anyway, I would suggest  you lodge the Contravention Application and an Application in a Case with the new proposed orders and an affidavit explainign the change of circumstances and why  you want the change of orders.  My ex did exactly that and there was no problem in court.  The FM was actually much more keen to sort out the new orders than bother with the contravention as it was a one off and hasn't happened again since and was because of the change of circumstances and is almost definately not a contravention anyway!

You will get  your chance at the first duty listing to explain the circumstances and probably the first thing you will have to do is attend court mediation anyway, which is a good thing I would have thought. 

I am not sure that anyone else here has been through the exact same circumstances as I have in a matter very similar to yours so you can take my advice or leave it, but really I do know what I am talking about. 

God grant me the serenity to accept the things I cannot change, courage to change the things I can and the wisdom to know the difference.
Thanks for these useful information Larissap, It really helps me. I am going to work on the applications.
larissap said
You would probably have no trouble getting a rehearing of the original orders as you have relocated to Australia from overseas which is a huge change of circumstances.

You do not state whether the set of orders made in April last year were by the Court or by Consent. Although there is a substantial change in your circumstances there is still the possibility of a Rice and Asplund argument against you. Example If you were you were likely to return and live in Australia why was this not considered with a secondary set of orders if the event of a return. The other side could argue that the childs life is arranged and settled around the existing orders and changes might not be beneficial.

Yes you can expect more time with your child but be aware if the other side is against this then you are in for a long haul in the Court.

larissap said
I am not sure that anyone else here has been through the exact same circumstances as I have in a matter very similar to yours so you can take my advice or leave it, but really I do know what I am talking about.
For someone that has not had a concluded case you are acting far beyond the one case wonders. Also according to your posts you only made one application  it was the ex that made the other.

Conan I actually said that I made an application because my ex's got lost in transit.

I have been through the whole business from the initial contravention application (lodged against me) to the Application in a Case that got lost when the papers were moved interstate, to my own Application in a Case because the other parent's got lost to a second Application in a Case to relocate the proceedings because the other parent wasn't happy with the date given!
In actual fact he made two Contravention Applications, one in anticipation of the 'breach' and then a second one after the alleged  'breach' which had an Application in a Case lodged at the same time for amended orders.  I responded to that Application in a Case but the court sent it back to  me because  his had got lost and asked me to send it in as an Application in a Case in because his was missing. 

Which actually bolsters my advice in that the courts are obliged to take any Application in a case that is lodged.  They might dismiss it at some point but it gets on the duty list at least.

Conan, I am offering my advice because the OP asked some questions and I have experience of a very similar thing. My case may not have finished but it does not make my advice any less relevant. I sure would have appreciated the help I am offering if I was just starting out from someone who has been through the same thing as me.  In fact I have asked for it and got very few responses.

It really helps noone to be negative about the value of my contributions does it? I have offered genuine advice based on my own similar experience.  The OP is welcome to take it or leave it just like the rest of us can do with what everyone else says on here!

God grant me the serenity to accept the things I cannot change, courage to change the things I can and the wisdom to know the difference.
What I was pointing out is that you were arrogant in stating that
larissap said
but really I do know what I am talking about
since your case has not concluded.

After five and a half years in operation and some 40 K plus posts someone else would have experienced similar circumstances but because they have not posted does not mean your circumstances are unusual.

You also made the very broad statement
larissap said
You would probably have no trouble getting a rehearing of the original orders as you have relocated to Australia from overseas which is a huge change of circumstances.
 To make such a statement you clearly do not fully understand the change in circumstances argument
larissap said
Which actually bolsters my advice in that the courts are obliged to take any Application in a case that is lodged.  They might dismiss it at some point but it gets on the duty list at least.
  Not correct, the Courts can refuse certain applications  (Childrens Orders) if there is no accompanying 60i and a Registrar has not given permission for a lodgment.

Pointing out that what you are writing may be incorrect is not negative, it is prudent advice for readers.
Actually his Application did get accepted without a 60i Certificate!

God grant me the serenity to accept the things I cannot change, courage to change the things I can and the wisdom to know the difference.
The set of orders made in April last year were made by the Court. At this time I was not expecting to go back to Australia so no other sets of orders have been made. My ex made my visits and skype calls difficult. I understood that I would loose my child if I was not coming back.

The child's life is arranged around the existing orders but these orders have been made only 1 year ago and it is in the best interest of our daughter to have a meaningful relationship with both parents. I am not sure to understand the concept of Rice and Asplund argument against me.

Conan, can you explain the change in circumstances argument as I really thought that a relocation from overseas was an argument?

Also I have two 60i Certificates, she refused the two last mediation that I have wanted to organise for the last 6 months. Now she says that she wants to go to mediation but with another family dispute resolution service. So it is delaying our next arrangements (about two months…).
The change of circumstances argument which is generally referred to as a Rice and Asplund argument (the major precedent it is named after) is one of the most quoted in the Family Courts. There have been many subsequent decisions (King and Finneran for example) that continue the argument which is to minimise ongoing litigation between parents and preserve some stability in existing arrangements.

Change of circumstances apply to either parent or the child(ren) and relate to circumstances that could not have reasonably been foreseen. Example the child turns a certain age and then change schools,  either partner re partners, a member of the Defence forces is assigned overseas, are foreseeable situations or something that would occur in normal life.

With time certain changes that neither parent could foresee can and do occur so that after a number of years there has been a reasonable change.

The change of circumstance is sometimes referred to as a bit of a Lottery argument depending on the presiding judicial officer as there are no really clear guidelines as to what actually constitutes a significant change. Case Law varies considerably.

In your case you are saying you did not intend to return to Australia, therefore you have changed your circumstances. Could you have foreseen that you might return?
The argument therefore may be that although a change has occurred, it has been of your making and the question remains is could it have been foreseen by you and whether your request to change of orders compromises the existing arrangements. I use the word compromise because an argument could be that the Mother and child now have a settled routine and you wish to overturn it. You said The child's life is arranged around the existing orders….

What essentially you are asking the Court is that you have changed your own circumstances dramatically and your daughter should benefit from this.

It would be most likely that since you are able to physically see the child more often that you will get greater time but please do not rush into Court on the assumption that you will automatically get 5/14 or EOW

Pema for your own sake read section 60CC and Section 61DA and 65DAA of the Act and try to locate some case law relevant to your own case.
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