Where the Federal Circuit Court or Family Court has made orders in relation to the care and custody arrangements for a child or children, it is expected that those orders will be complied with by each parent and any other parties to the matter.
However, it is not unusual for a parent to contact us asking what they can do if the other parent is not following the Court Orders.
What is a Contravention Application?
One of the options available to you is known as a “Contravention Application”. This application is only able to be made where there are already Court Orders in place and is effectively an application to bring to the Court’s attention that another party is not following the Court Orders.
How do I make a Contravention Application?
A Contravention Application is filed in the Federal Circuit Court of Family Court. Once you have filed a Contravention Application you will be given a hearing date before the Court. You then need to serve a copy of your application on the other party to ensure that they are aware of the hearing.
What does the Court need to be satisfied of?
The Court will firstly determine whether there has been a contravention of the Court Orders. If the Court is satisfied that the Orders have been contravened, it will then decide whether the other party had a reasonable excuse for failing to comply with the Court Orders. For example, if the breach of the Orders was that a parent had failed to facilitate access between a child and the other parent, if the parent alleged to have contravened the orders provided evidence that the child was too unwell to attend access with the other parent, that would be a reasonable excuse for contravening the Orders.
Where a Court finds that a contravention has been established, they have a range of options available to them, depending on the nature of the breach of the Orders.
- For minor breaches, they may simply remind the other party about the importance of complying with the Court Orders. If the other parent has missed out on time with a child or children, the Court can Order make up visits to replace the time that has been missed.
- For the most serious breaches, the Court has the power to imprison the person who has breached the Orders. However, this power is only exercised by the Court as a means of last resort and is reserved only for the most serious breaches. For example, if a parent fled interstate and went into hiding with a child or children and could not be found for a long period of time, that would be considered a very serious breach of Court Orders.
A Contravention Application is not always appropriate and depending on the nature of the breach and whether it is an ongoing issue, you may be better off making an application to change the existing orders.
We recommend that you seek legal advice prior to lodging a contravention application to ensure that it is appropriate in the circumstances of your case. Please do not hesitate to contact the experienced team at JB Solicitors and we will be more than happy to assist you.