Non-compliance, breach and contravention are words we often hear from others to describe someone who is not following an Order and more commonly, parenting Orders.

While final Orders should indicate the end to a matter, some parties may find themselves again at mediation or in the Court system due to non-compliance.

It is frustrating for some that it seems that those who do not comply with Orders seem to face little consequences for their actions. However, since the introduction of the Federal Circuit and Family Court of Australia (Family Law) 2021 in September 2021, the Court have placed further emphasis on the need to comply with Orders.

So, what do you need to consider if you believe that someone has contravened an Order? Well: –

  1. Firstly, you will need to consider whether there is a contravention;
  2. Secondly, whether there may be a reasonable excuse for the contravention; and
  3. Thirdly, how can you resolve the issue.

WHAT IS A CONTRAVENTION?

Pursuant to section 70NAC of the Family Law Act 1975 (Cth), a contravention is when: –

  1. A person who is bound by an Order: –
    1. Intentionally fails to comply with the Order; or
    2. Makes no reasonable attempt to comply with the Order; or
  2. Otherwise, they have: –
    1. Intentionally prevented compliance with the Order by a person who is bound by it; or
    2. Helped someone else who is bound by the Order not to comply.

IS THERE A REASONABLE EXCUSE?

If it is found that there has been a contravention, the Court will then determine whether there was a reasonable excuse for the person not to comply with the Order.

The Court will have consideration to the meaning of reasonable excuse at section 70NAE of the Family Law Act 1975 (Cth).

A reasonable excuse may include to protect the health or safety of a person (including the child/ren).

The Court can make a finding that there has been a contravention however, that there was a reasonable excuse for that person to not comply with the Order.

CONSEQUENCES OF NON-COMPLIANCE

The Court has the power to impose various penalties when considering a contravention application. This may include: –

  1. Providing make-up time for the parent who lost time with a child/ren due to non-compliance with an Order.
  2. Varying the primary Order.
  3. Having the person who contravened the Order enter into a bond.
  4. Having the person who contravened the Order attend a post-separation parenting program.
  5. Making a community service order against the person who is convicted of an offence.
  6. Imprisonment for the person who contravened the Order.

It is important to note that if a contravention is alleged but the Court makes a finding that there has been no contravention, the Court may order that the person who brought the application pay some or all of the costs of the other party to the proceedings.

WHAT TO DO IF SOMEONE HAS CONTRAVENED AN ORDER

The Court places significant emphasis on parties attempting to settle matters without their intervention. The Family Law Practice Direction – National Contravention List specifically states that parties are “to act consistently with the overarching purpose of family law practice and procedure, which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.”

So as a first step, if you believe that someone has contravened an Order, you should discuss this with them. This could quickly rectify the issue as there could just be a misunderstanding or miscommunication.

After that discussion, if there is no resolution, then you should invite the other party to attend upon Family Dispute Resolution (unless an exemption applies). This may assist in resolving the issue in dispute.

As a last resort, you can make a Contravention Application in the Federal Circuit and Family Court of Australia. You should seek advice before making such an application.

DOES THE COURT ENFORCE PENALTIES FOR CONTRAVENTIONS?

There are cases that showcase that the Court do in fact impose penalties on those who contravene parenting Orders. Some examples are provided briefly below.

Bircher & Bircher [2022] FedCFamC1A 59

In this case, the Father brought a contravention application alleging that the Mother had withheld the child from spending time with him between 1 January 2021 and 8 January 2021 (i.e. seven days). It was found that the Mother had contravened the Order without a reasonable excuse.

The Mother appealed the decision.

It was the Mother’s argument that there was a reasonable excuse to withhold the child because the Father had previously withheld the child for seven days (i.e. 4 December 2020 to 11 December 2020).

It was found that the Mother’s reasoning for withholding the child to “even the score” was not a reasonable excuse. As a result, make up time for the Father was ordered and the Mother was ordered to pay a fine.

Kalant & Jordain (No. 3) [2021] FamCA 191 (19 April 2021)

In this case, the Mother had a long history of failing to comply with interim Orders.

As a result of multiple contraventions, the Mother was placed on two bonds on 25 September 2020. One bond was for a period six months and the other for a period of two years. For two of the Mother’s contraventions, she was sentenced to a 14-day imprisonment term that was suspended on her entry into the bond.

The Mother was then found to have contravened a further interim parenting Order for failing to: –

  1. Facilitate the child spending time with the Father on 20 January 2021.
  2. Attend the Family Report interviews on 25 January 2021.
  3. Ensure the child attends the Family Report interviews.

Due to the Mother beaching her bond, it was ordered that the suspension of the imprisonment was terminated, and the Mother was ordered to serve the 14-day imprisonment.

Please click here if you would like more details on the specifics of this case.

While it is not common for the Court to order imprisonment for contraventions, this case highlights that the Court has the power to impose significant penalties for those who do not comply, or those who consistently do not comply with Orders.

WHAT DOES THIS ALL MEAN?

Taking into account the above, it is important that you comply with any Orders made by the Court as the Court has the ability to impose penalties for contraventions.

Not only may you be at risk of penalties being imposed, but contravention proceedings can also be both financially and emotionally draining for all parties involved. These applications can also take some time to reach a resolution.

If you believe that someone has contravened an Order, you should contact our office and speak with one of our solicitors for assistance.