When parents separate, the Family Law Act 1975 (Cth) provides a framework for making arrangements about children. These arrangements are often formalised by way of a Court Order. Sometimes, one parent may believe the other has not followed (or "contravened") a parenting order. In these situations, a parent may commence "contravention proceedings." This article explains what contravention proceedings are, how they work, and what the court considers, with reference to key sections of the Family Law Act and recent cases.

What is a Contravention?

A "contravention" occurs when someone does not comply with a parenting order made by the court. This could mean not allowing a child to spend time with the other parent as ordered, or not returning a child at the agreed time.

Key Sections of the Family Law Act

• s70NAA: Sets out the definitions used in contravention proceedings.
• s70NAB: Explains the main objectives, including supporting compliance with orders, resolving difficulties, deterring non-compliance, upholding the authority of the court, and providing sanctions for contraventions without a reasonable excuse.
• s70NAC: Describes when a person is taken to have contravened an order.
• s70NAD: Outlines the circumstances in which a person may have a "reasonable excuse" for not complying.

Starting Contravention Proceedings

If you believe a parenting order has been breached, you can apply to the court for contravention proceedings. However, before doing so, you must usually attempt family dispute resolution (FDR) and obtain a certificate under s60I, unless an exception applies (such as urgency or risk to safety).

Practice Directions and the National Contravention List

The Central Practice Direction and the National Contravention List set out the court’s expectations for parties and lawyers. These include the requirement to make genuine attempts to resolve disputes before filing an application. The National Contravention List is a dedicated list for managing contravention applications efficiently and consistently across Australia.

What Can the Court Do?

The court has a range of powers if it finds a contravention has occurred. The response depends on whether the breach was minor or serious, and whether there was a reasonable excuse.

Orders the Court Can Make

• Make-up Time: The court can order "make-up" time for the parent who missed out. Importantly, the time made up does not have to exactly match the time missed.
• Varying Orders: The court can change the existing parenting orders.
• Parenting Program: The court can order a parent or other party to attend a post-separation parenting program.

These orders can be made at any stage of proceedings, even without a formal finding about the contravention.

Penalties for Contravention

If the court finds, on the balance of probabilities, that a party contravened the orders without a reasonable excuse, it can order:

• Bonds: The person may be required to enter into a bond (with or without conditions) for up to 2 years.

If the court is satisfied beyond reasonable doubt that a party contravened the orders without a reasonable excuse, it may also order:

• Fines: The person may be required to pay a fine (up to 60 penalty units).
• Imprisonment: For serious or repeated breaches, the court can order imprisonment (for up to 12 months for serious contraventions).

Costs Orders

The court may also award costs against a party under s117 if satisfied there are circumstances that justify it doing so. Misuse of the process or unmeritorious applications can result in personal costs orders.

What Does the Court Consider?

When deciding what to do, the court must consider:

• The likely effect of the order on the child
• The seriousness of the contravention
• Any previous contraventions without a reasonable excuse
• Whether the person showed a "serious disregard" for their obligations
• The behaviour of any person with whom the child lives or spends time

Burden of Proof

If a person claims they had a reasonable excuse for not complying with a parenting order, they have the legal burden of proving that excuse.

Key Takeaways

• Contravention proceedings are serious and should not be used lightly.
• The person claiming to have a reasonable excuse has the legal burden of proving the excuse.
• Where appropriate, try to resolve disputes through mediation or FDR before going to court.
• The court's primary concern is the best interests of the child, not punishing parents.
• Make-up time is flexible and does not have to be "hour for hour."
• There are strict time limits and procedural requirements.
• Misuse of the process can result in personal costs orders.

If you are considering contravention proceedings, contact Lamrocks Solicitors to better understand your obligations and the possible outcomes.

Resources

• Family Law Act 1975 - Federal Register of Legislation
• Family Law Practice Direction: National Contravention List | Federal Circuit and Family Court of Australia
• Central Practice Direction: Family Law Case Management | Federal Circuit and Family Court of Australia