Understanding Contravention Applications Under the Family Law Act

Navigating family law can be complex. It is especially so when it comes to ensuring compliance with court orders. Contravention applications are designed to address breaches of these orders. Understanding the regulations, costs, and potential consequences surrounding contravention applications can be exceptionally important.

What is a Contravention Application?

A contravention application allows one party to seek the enforcement of a court order when another party fails to comply. Typically, these applications are associated with parenting orders but can also pertain to property orders .

Before filing a Contravention Application, you should consider the result that you want to achieve.

The Court offers remedies that include enforcing an order and punishing those who fail to comply. For instance, the Court can issue an order to:

  • Reinstate the arrangements specified in a prior order. This may include provisions for reviewing this reinstatement. For example, by scheduling a case mention in a few weeks time.
  • Compensates an individual for lost contact time [s 70NBB].
  • Varies an existing order [s 70NBC].
  • Notify an individual that non-compliance with an order will result in punishment.
  • Punish a person by way of a fine or imprisonment [s70NBF].

Enforcement Applications

If your aim is not to have the other party punished (e.g., fined or imprisoned) for the breach, but rather to ensure the reinstatement of the arrangements outlined in a previous order, you should file an Enforcement Application [pursuant to Part 13 of the Act] instead of a Contravention Application [pursuant to Division 13A of Part VII of the Act].

During the hearing of an Enforcement Application, the court must adhere to specific procedures as outlined in Federal Circuit and Family Court (Family Law) Rules 2021 – Chapter 11. The court must inform the respondent of the allegation, inquire whether respondent wishes to admit or deny the allegation, listen to any evidence supporting the allegation, allow respondent to respond to the allegation, hear any evidence presented by respondent , and ultimately determine the outcome of the proceeding.

Legal Principles and Case Law

In D & C (Imprisonment for Breach of Contact Orders) [2004] FamCA 814 Kay J observed “the primary purpose of enforcement proceedings for non-compliance with an order” as being “to try to ensure compliance with the order”. The court added that there are “circumstances where it is important to uphold the authority of the court and impose a penalty as a specific or general deterrent”. In another article we discuss a matter where the judge condoned excessive use of rights to file contravention applications. His Honour referred to an application ‘petty and unwarranted’.

Contravention proceedings should be limited to the clearest cases: see Biddell & Ervin [2012] FMCAfam 926. An applicant must prove (s 70NAC) that the respondent:

  • deliberately failed to comply with the order, or
  • failed to make a reasonable attempt to comply with the order, and
  • has no “reasonable excuse for contravening” the order under s 70NAE or any other “reasonable excuse”: Stubbs [2013] FamCA 427.

If the court is satisfied that a parenting order is “entirely unworkable” this may satisfy the Rice & Asplund threshold for variation of the order: Deakin & Parry [2008] FMCAfam 590. Under the new legislation that came into force on 6 May 2024, this situation is governed by new section 65DAAA ‘Reconsideration of final parenting orders’.

Case Study: Variation of Order Under s 70NBA

In Irvin & Carr [2007] FamCA 492, a mother was denied permission to relocate from the Sunshine Coast to Byron Bay. Nonetheless, she moved there three months after the hearing. Jarrett FM initially imposed a bond and subsequently modified the order. The revised arrangement stipulated that the child would alternate living with each parent on a week-on/week-off basis until the mother returned. If she did not return, the child would reside with the father and spend alternate weekends with the mother. The mother’s appeal to the Full Court was dismissed.

Procedure for Contravention Applications

An applicant in Contravention Application should also file an affidavit in support of the alleged contravention.

The respondent’s affidavit must address each allegation by presenting their version of the relevant evidence. If a breach of an order is acknowledged but a “reasonable excuse” is claimed, the supporting evidence should be provided. If either party seeks compensatory time, expense reimbursement, or a variation of the parenting order, they should file an application and supporting affidavit.

The applicant carries the burden of proving the contravention on the balance of probabilities: s 70NAE.

Regulations Governing Contravention Applications

The term “contravention” encompasses various actions, such as:

  • Failure to comply with the terms of an order: For instance, not observing custody arrangements.
  • Preventing compliance: Actions that inhibit the other party from fulfilling their obligations under the order.
  • Neglecting to take reasonable steps: Failing to facilitate the conditions set by the parenting order.

The Family Law Act 1975 contains provisions specifically addressing contravention of orders. These are set out in Part VII, Division 13A:

  1. Section 70NAC sets out the grounds for contravention of parenting orders: a person contravenes a parenting order if they knowingly fail to comply with the order without a reasonable excuse.
  2. Section 70NAD outlines the meaning of a reasonable excuse for contravening an order affecting children. For example, it includes circumstances where a person may believes that contravening the order was necessary to protect the health or safety of a person, including the child.
  3. Section 70NAC defines a contravention as when a person intentionally fails to comply with an order, makes no reasonable attempt to comply, or intentionally prevents compliance with the order by another person bound by it.
  4. Section 102PK states that a person commits an offence if they do an act or omit to do an act that contravenes an order made by a court under section 102PE, with penalties including imprisonment, fines, or both.
  5. Section 112AB deals with contravention of orders other than parenting orders, such as financial orders or injunctions. It outlines the circumstances under which a person may be found to have contravened such orders.

Consequences of Contravention

In family law matters in Australia, penalties for contraventions can vary. Thus, they are often based on the severity of the breach and the specific circumstances. Here are some common penalties:

  1. Warning: The court may issue a formal warning to the party who breached the order. This serves as a reminder of their obligations and the consequences of non-compliance.
  2. Make-Up Time: If a parenting order related to time spent with a child (e.g., visitation) is breached, the court may order make-up time. This means the party who missed out on time with the child gets additional time to compensate for the breach.
  3. Costs Order: The court can order the party who breached the order to pay the legal costs of the other party. These costs are known as party-party costs. The purpose is to compensate the innocent party for the expenses incurred due to the breach.
  4. Community Service: In more serious cases, the court may order the breaching party to perform community service as a penalty.
  5. Fine: The court has the authority to impose a monetary fine on the party who contravened the order. The amount of the fine depends on the circumstances.
  6. Change of Orders: The court may modify the existing orders to prevent further breaches. For example, if communication issues led to the breach, the court might alter communication arrangements.
  7. Imprisonment: In extreme cases, the court can impose a jail sentence for serious or repeated contraventions. However, imprisonment is typically a last resort and is rarely used.

Get expert family law solicitors advice

Remember that the court considers the best interests of the child when determining penalties. Legal advice is crucial if you’re dealing with contravention issues.

  • Consequences of Contravention (Section 70NBA): If the court finds that a contravention has occurred, it may impose various consequences on the party responsible. These consequences may include fines, community service orders, or imprisonment in serious cases.
  • Considerations for Penalties (Section 70NBF): Section 70NBF outlines the factors that the court must consider when determining the appropriate penalty for a contravention. These factors include the nature and circumstances of the contravention, the party’s history of compliance, and the best interests of the child.
  • Defences and Exemptions (Section 70NAD): This section provides for defences and exemptions to contravention proceedings. It allows parties to raise reasonable excuses for non-compliance, such as fear of family violence or circumstances beyond their control.
  • Enforcement of Orders (Section 70NAA): Section 70NAA empowers the court to make orders for the enforcement of contravened orders. These enforcement orders may include orders for makeup time with the children, compensation for financial losses, or counseling for the parties involved.

For a comprehensive understanding of these provisions and how they may apply to specific situations, it’s advisable to consult the full text of the Family Law Act or seek legal advice.

Costs of Contravention Proceedings

One of the significant considerations for parties contemplating a contravention application is the cost involved.

When the court determines that a “more serious” breach of a parenting order has occurred it may order costs. Court may decline to make a costs order if doing so would not be in the child’s best interests. However, the aggrieved party may still need to cover the difference between the awarded amount and the actual costs incurred in the contravention proceedings.

Applicants should be aware that if they fail to demonstrate a breach by the other party—or even if they succeed but the offender has a reasonable excuse for the violation—they may be required to cover some or all of the other party’s legal costs.

In Roffe & Huie [2016] FamCAFC 166 the court dismissed an application for costs against the mother despite finding her guilty of a “serious contravention”. It was determined under section 70NFB(1)(a) that a costs order was not “in the best interests of the child.”

Case Study: Consequences of a Breach

Family case law on contravention applications provides valuable insights into the application of the Family Law Act. Here are summaries of some key cases in this area:

Goode and Goode (2006) FLC 93-280. In this case, the Court held that when assessing contravention of parenting orders, the primary consideration should be the best interests of the child. The Court emphasized the importance of ensuring compliance with parenting orders to maintain stability and consistency in the child’s life.

Dyson v Dyson (2010) FLC 93-437. This case highlighted the Court’s approach to assessing contravention allegations. It emphasized the need for clear evidence to establish contravention, including documentation of breaches and adherence to procedural requirements.

Bondelmonte [2017] FamCAFC 27. In this case, the Full Court clarified the principles governing contravention proceedings. It emphasized the importance of considering the reasons for contravention, the seriousness of the breach, and the impact on the child’s welfare when determining appropriate remedies.

McCoy & McCoy [2020] FamCAFC 77. In this case, the Court considered the relevance of a child’s wishes and preferences in contravention proceedings. It highlighted the need for the Court to balance the child’s autonomy with their best interests when assessing contravention allegations involving older children.

Harrison & Harrison (2017). In this case, the court considered a contravention application regarding financial orders. The husband alleged that the wife had contravened the orders by failing to disclose certain financial information. The court found in favor of the husband, highlighting the duty of parties to provide full and frank financial disclosure in family law proceedings.

Professional Guidance in Contravention Applications

In contravention applications within family law matters, a solicitor plays a crucial role. Let’s explore their involvement:

Legal Advice and Guidance:

    • Before filing a contravention application, it’s essential to seek legal advice. A solicitor can explain how the law applies to your specific case.
    • A solicitor helps you strategize your case. They assess the strength of your contravention claim and advise on the best approach.

Representation in Court:

    • If your contravention application proceeds to court, a solicitor represents you during hearings.
    • They present your case, cross-examine witnesses (if needed), and advocate for your position.

Defending Respondents:

    • If you’re the respondent (the party accused of breaching court orders), a solicitor helps you prepare a defense.
    • They explore valid reasons for non-compliance and present your side of the story.

Seeking legal advice early can significantly impact the outcome of your case. For more detailed advice tailored to your specific situation, consulting with a family law professional is always recommended.