The Court expects that all parties will comply with the orders of the Court. Contravention matters are quasi-criminal proceedings dealt with in the Federal Circuit and Family Court of Australia. The Applicant will make allegations that the Respondent has contravened Orders without a reasonable excuse. The Respondent must then plead ‘guilty’ or ‘not guilty’ to the allegations. The Respondent may argue the defense of reasonable excuse.
A person is taken to have contravened an order (affecting children) if the person has intentionally failed to comply with the order, or made no reasonable attempt to comply with the order, or has otherwise, intentionally prevented compliance with the order or aided or abetted a contravention of the order.
Whilst a Court could make a finding that a person has contravened an order, it could also be found that person had a reasonable excuse for contravening the order. The term ‘reasonable excuse’ is defined under the Family Law Act as follows:
- the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; or
- the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child) and, the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person.
Where a contravention is alleged but not established, the Court has the power to make an order for costs against the Applicant. In circumstances where a contravention is established but there is a reasonable excuse, the Court may make an order for compensatory time with the other parent. Where a contravention is established without a reasonable excuse, the Court has the power to make any one of the following orders:
- That the contravening party undertakes a parenting course;
- That the contravening party pays a monetary bond;
- That the contravening party serves community service;
- That the contravening party is sentenced to imprisonment.
Following the changes to the FCFCOA on 1 September 2021, a National Contravention List was established to deal with contravention applications in a more timely, cost-effective, and safe way for litigants. The Courts are now taking a strict approach with contraventions to be taken seriously and serious consequences for non-compliance with orders.
For more information, contact our experienced Family Lawyers on (07) 4052 0700.