Contravention Applications
Court Orders sealed by the Federal Circuit Court of Australia or the Family Court of Australia create legal obligations which the parties must follow. If a party breaches (breaks or contravenes) a court order, the matter may be dealt with by the Court by the other party bringing a Contravention Application.
Contravention Applications bring the breach (or breaches) to the attention of the Court and seek some kind of remedy or punishment against the breaching party. Contravention proceedings are quasi-criminal in nature, and the standard of proof relates directly to the relief the innocent party is seeking to achieve from the application.
Contravention of Parenting Orders
A person is taken to have contravened a parenting order, if:
a) The person is bound by the order and the person has:
i) intentionally failed to comply with the order; or
ii) made no reasonable attempt to comply with the order; or
b) Where a person is not the party bound by the order, but the person has:
i) intentionally prevented compliance with the order by a person who is bound by it; or
ii) aided or abetted a contravention of the order by a person who is bound by it
It is important to note that parenting orders may be subject to later parenting plans and this means that an action that would otherwise have contravened the orders, does not contravene because the action is in line with the later inconsistent parenting plan.
The only defence to contravening a Court Order is that there was a “reasonable excuse” for doing so. Reasonable excuses for contravening a parenting order include:
1) that the respondent did not understand the obligations imposed by the order at the time of the breach AND that the court is satisfied that the respondent ought to be excused in respect of the breach; or
2) that the respondent believed on reasonable grounds that their actions in disobeying the parenting order were necessary to protect the health or safety of the child or another person AND that the length of time that the respondent disobeyed the order was not longer than reasonably necessary to protect the health or safety of the child or other person.
Contravention of Property Orders
Unlike parenting orders, there is only one reasonable excuse for contravening a property order, and this is as follows:
1) that the respondent did not understand the obligations imposed by the order at the time of the breach AND that the court is satisfied that the respondent ought to be excused in respect of the breach
What can be achieved by bringing a contravention application?
There are a range of remedies/punishments that the Court may order as a result of a successful contravention application. It must be said, however, that the remedy or punishment must fit the breach.
The Court has the power to do the following:
a) Vary an existing order
b) Order compensating a person for lost time
c) Require a person to attend a program
d) Require a person to enter a bond
e) Compensation for expenses incurred by a breach of a parenting order
f) Make a community service order
g) Impose a fine
h) Impose a sentence of imprisonment (note: a sentence of imprisonment can only be for a period of 12 months or less, and this is a punishment only given in the most serious of circumstances)
The case of Gaunt & Gaunt (1978) advises parties that disagreeing with an order does not mean you are allowed to breach that orders.
If you have any questions in relation to Contravention Applications or any other aspect of Family Law, please do not hesitate to contact us on 8999 1800.