- Property Settlement
Contraventions & Family Law
Umbrella Family Law • July 25, 2023
Contraventions often appear simple, or cut and dry, at first glance, but they rarely ever are. For this reason, we strongly encourage you to get appropriate legal advice.
When getting legal advice, irrespective of whether you are the Applicant or Respondent, it is important to tell the lawyer all the circumstances leading up to and including the contravention, and your beliefs at the time it occurred.
Contraventions – what are they?
A Contravention is a court order that imposes obligations on parents and if they don’t comply then they have contravened the orders. An example of a contravention is where one party does not transfer money to the other party in line with the Court mandated orders.
You can be found to have contravened an order where you have not complied and done so without a reasonable excuse.
It is important to understand that orders impose either positive or negative obligations on parents – positive meaning you must do something, and negative meaning you must not do something.
Some examples of a contravention, assuming there is no reasonable excuse, in relation to a parenting matter include:
- Parent A contravenes the order when they do not drop the Child off at Parent B’s house and the Child doesn’t spend time with Parent B as a result.
- Whilst with Parent A, the Child went to hospital for a medical emergency. Parent A has contravened the orders by failing to inform Parent B of the Child’s medical emergency.
- The Child lives with Parent B who organises a telehealth appointment for the Child after school. Parent B contravenes the order by not informing Parent A and getting their consent.
If you don’t comply with an order deliberately but believe you have good reason for it, then you might be able to convince a court you have a ‘reasonable excuse’.
Contraventions – what is a ‘reasonable excuse’?
It might be that:
- you did not understand your obligations under the order at the time you are alleged to have breached it;
- your car breaks down on the way to changeover and it is not practicable to get there by any other means; or
- you believed on reasonable grounds that you had to breach the order to protect the health and safety of you and or your child.
Contraventions – what happens now?
What we discuss below can be tricky and very confusing. We would always advise speaking to a lawyer and have them draft the application or at least assist you.
If you are the Applicant, you will need to complete a Contravention Application and an affidavit setting out the evidence you say supports the alleged breaches. The Application appears simple but requires very precise details. If you make a mistake – e.g. wrong date or time – then the court might strike that contravention out.
The affidavit you file with the application can also be tricky. You only need to include the facts – the when, who and what – that support establishing the alleged breach and nothing further. A bit of background and context may be helpful but avoid the temptation of repeating the whole story. It may also be worth thinking about what witnesses you could put on affidavit.
The application must be personally served on the Respondent (regardless of COVID restrictions). If personal service is simply not possible then a court would need to grant you leave to serve a different way.
If you are the Respondent, remember that it is the Applicant’s case to prove the alleged breaches. Ordinarily, a court would not require you to file any response or affidavit. However, this may not continue to be the norm with the new National Contravention List (discussed below).
So, what should you do? Seek advice quickly. Your lawyer may want to prepare an affidavit setting out the facts if there are clear grounds of reasonable excuse. But remember it isn’t always required to file responding material, so your lawyer may prepare the affidavit but keep it tucked away for the first hearing.
The Court’s process – The National Contravention List
The focus of the National Contravention List is to have contravention matters dealt with as swiftly as possible. This means being listed for a hearing as close to 14 days from the date of filing as practicable, and then a defended hearing within 8 weeks of filing. This may not seem quick, but in the context of this court, it is lightening fast!
The first hearing will be before a Contravention Registrar. Your matter would be listed with a lot of applications and it is the Registrar’s job to sort through and triage the matters. The Registrar may make directions for a number of different things to occur – e.g. requiring the Respondent to file material, sending the parties to alternative dispute resolution and or list the matter for hearing.
Consequences of a Contravention
Finding a breach has occurred (and that there is no reasonable excuse) can result in a range of penalties and sanctions. If a breach is ‘less serious’, then the breaching party may be ordered to attend a parenting orders course, for example. For ‘more serious’ breaches then fines and jail time are possible. The court will always take the circumstances of the case into account and whether this is a first time breach or something that has happened before.
You can file a Contraventions Application for financial matters but it is not necessarily the first thing you would do. Depending on the circumstances, you would be looking at an Enforcement Application or even contempt of court. But more on that another time.
At Umbrella Family Law we can assist you where a contravention has occurred. If you or someone you know needs our help, please contact us on (03) 9279 6800 or via email on firstname.lastname@example.org.