A Contravention Application seeks punishment and redress when the orders of the Court are not followed. It does not ensure compliance with the order that has been breached, though this may occur. This application can be used for alleging a breach of a parenting order under Division 13A of Part VII of the Family Law Act 1975, or for another order not affecting children such as a financial order under Part XIII of the Family Law Act 1975.
If you do not follow the orders of the Court, and if the issue cannot be resolved by dispute resolution, the other party may make a Contravention Application (with a supporting affidavit) seeking that a consequence is imposed upon you as a result. Similarly, if another party to your proceedings is not following the orders of the Court, you can make a Contravention Application.
A breach of an order may occur when one of you intentionally fails to comply with the orders, fails to make reasonable attempts to comply with the orders, intentionally prevents the compliance of the other party with the orders, or assists another party in contravening the orders.
A contravention is only excusable where there is a reasonable excuse for breaching the order. Under the Family Law Act 1975, this reasonable excuse may be that a breach was necessary for protecting someone’s health and safety, the breach continued for no longer than necessary, or they did not understand that they were breaching the orders at the time.
Under a Contravention Application, the Court may make orders that;
- Compensate a party for any time missed with the child/ren as a result of the other parties’ breach of the Orders;
- Vary existing Orders in a proceeding;
- Ensure that the parties comply with the earlier Orders;
- Place a party on notice that non-compliance may result in punishment; or,
- Impose punishment such as fines or imprisonment.
The Court has established a National Contravention List to hear all Contravention Applications filed in the Federal Circuit and Family Court of Australia from 1 September 2021. A party may also apply for the orders to be resumed or varied by way of an Application in a Proceeding, or an application to Vary the Primary Order.
If your focus is on resuming the orders that have been breached, instead of penalising the party in breach, an Enforcement Application may be more appropriate. An Enforcement Application (with a supporting affidavit) aims to achieve implementation of the original orders.
Similarly, to Contravention Applications, a breach is excusable where a party has a reasonable excuse under the Family Law Act 1975, being that a breach was necessary for protecting someone’s health and safety, the breach continued for no longer than necessary, or they did not understand that they were breaching the orders at the time.