In September 2021, a new National Contravention List was established to deal with contravention applications filed in the Federal Circuit and Family Court of Australia.
Contraventions of orders affecting children are covered by Division 13A of Part VII of the Family Law Act 1975. Contraventions of orders not affecting children, such as property orders, are dealt with under Part XIIIA of the Act. A person bound by an order of the Court is said to have contravened that order if they have intentionally failed to comply with that order, or they made no reasonable attempt to comply. If a person has been found to have contravened and order without reasonable excuse, a range of penalties apply from the ordering of make-up time, attendance at a post separation parenting course, the imposition of a bond or in extreme cases, a custodial sentence.
The purpose of bringing a contravention application is not to punish the other party, but to try and ensure future compliance with the orders.
In the past, contravention applications tended to be adjourned to be heard during or after a final hearing, providing little incentive for an offending party to comply with orders along the way. The National List aims to streamline the process so that matters can be dealt with as quickly and as efficiently as possible, ensuring compliance with court orders. All matters are heard electronically utilising the available judicial officers from around the country.
An application is emailed to the Court and is initially assessed by a Contravention Registrar who determines if the application is deficient or is non-compliant with the Rules of the Court, in which case they may decline to accept it for filing. Filed applications are then listed before a Senior Judicial Registrar within 14 days. The parties will usually be directed to some form of dispute resolution, particularly if the parties did not attempt to resolve the matter prior to filing and had an exemption. If parties agree, the matter can be listed for hearing before a Senior Judicial Registrar, or failing agreement or in more complex and serious matters, the matter will be heard by a Judge. The aim is for matters to be listed for hearing within 8 weeks of the first return date.
Contravention applications are serious matters and are quasi criminal in nature. They should not be brought lightly and costs orders can be made against parties and solicitors for frivolous applications and defenses or for not complying with pre-action procedures. If you are considering making a contravention application, or find yourself on the receiving end, you should seek legal advice and representation.
Written by Karen Barber.