During the course of proceedings in the Federal Circuit Court and Family Court of Australia issues relating to the non-compliance of Orders may arise. The Family Law Act 1975 (Cth) (“The Act”). Given the different nature of property and parenting matters, the Act deals with alleged contraventions differently.
Contraventions in Property Settlement Matters (Part XIIIA of the Act)
Establishing a Contravention
Section 112AB provides that the Respondent (the person in contravention) must have:
- Intentionally failed to comply with the Order; or
- Made no reasonable attempt to comply with the Order
- 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; and
- The court is satisfied that the respondent ought to be excused in respect of the contravention.
Pursuant to section 112AD of the Act the Court has the power to make Orders if it is found that the respondent, without a reasonable excuse, has contravened the Order this can include a bond, a fine or imprisonment.
Should I file a Contravention Application in a Property Settlement Matter?
If a Contravention Application is filed it may not actually achieve the desired outcome in a property settlement matter. We set out the below example:
In January 2021 the Family Court of Australia made Orders in Kate and Arthur’s matter that Kate pay the sum of $20,000 by way of partial property settlement to Arthur. That payment was to be made two weeks after the Order.
Arthur files a Contravention Application. It is found that Kate contravened the Order without a reasonable excuse. The Court makes an Order for Kate to enter into a bond.
The problem with the above scenario is that no Orders have been made to enforce the previous Order that Kate pay $20,000 to Arthur.
If one party has failed to comply with an Order in a property settlement matter, it is important to consider whether a Contravention Application is appropriate. This type of Application is designed to punish the party who has contravened the Order.
An Application in a Case may be the more appropriate Application to file if a party wishes to achieve a resolution to the alleged contravention as Orders can be made to assist in progressing the matter. An Application in a Case is used in both property and parenting matters where Orders are sought but where a case has already commenced. It can be used for interim and procedural orders.
Contraventions in Parenting Matters
In parenting matters, contraventions are dealt with under Division 13A of the Family Law Act 1975 (Cth).
Establishing a Contravention
Section 70NAC of the Family Law Act (“The Act”) provides that the Respondent (the person in contravention) must have:
- Intentionally failed to comply with the Order; and
- Made no reasonable attempt to comply with the Order; and
- Had no reasonable excuse for contravening the Order under section 70NAE of the Act.
If a contravention has been established, there are three subdivisions which become relevant:
- Subdivision D: where a contravention is established, but the Court is satisfied there was a reasonable excuse for the contravention (70NDA);
- Subdivision E: where a contravention is established, and the Court is satisfied there was no reasonable excuse for the contravention: less serious breaches (70NEA);
- Subdivision F: where a contravention is established, and the Court is satisfied there was no reasonable excuse for the contravention: more serious breaches (70NFA).
What is a reasonable excuse in a parenting matter
Section 70NAE sets out the basis upon which a person may be deemed to have a reasonable excuse for contravening a parenting order.
Whether you are alleging a contravention against a party or you are the party in which the contravention is alleged we recommend you seek legal advice regarding whether a reasonable excuse may be established in your particular case and the particular outcomes that may stem from that.
Should I file a Contravention Application in a Property Settlement Matter?
As with property settlement matters, it is important to consider whether a Contravention Application is appropriate, or whether an Application in a Case may be of greater assistance. Whilst in some instances the Court has the power to Order time with a parent who has lost time as a direct result of a parent contravening an Order, this outcome could also be achieved by way of Application in a Case.
If you would like more information you can contact James, Jasmine or call our family law team on 07 3370 5100
