Contravention Applications in Parenting Cases: “Self-help” is not a defence
By Kate Taylor
9 July 2019
Many Family Law clients are surprised to find that after all of the emotional and financial stress associated with obtaining Final Parenting Orders, there is no ironclad guarantee that their former partner will comply.
If your former partner is failing to facilitate your time or communication with the children, or is not complying with the Final Orders in some other way, and does not have a reasonable excuse for doing so, you can issue a Contravention Application.
A Contravention Application is not an enforcement application. Instead, it seeks to punish the person who has failed to comply with the Orders. Contravention proceedings are quasi-criminal in nature and depending on the nature and extent of the breach, can lead to very serious consequences including imprisonment at the highest level. For the parent accused of contravening the order, “self-help” or taking the matter into your own hands should be avoided. If a parenting order is not working, an application should be made to the Court without delay.
The Family Law Act 1975 (“the Act”) differentiates between more and less serious contraventions. In respect of less serious contraventions, the Court has power to make the Orders set out in section 70NEB of the Act, including Orders for the contravening parent to attend post-separation parenting programs, pay a bond or provide make up time. These orders may be made at the Court’s discretion.
If the Court finds that there has been a “more serious” contravention and that the respondent did not have a reasonable excuse for breaching the Orders, it is compelled to make an Order for the respondent to pay all of the other party’s costs unless it is not in the best interests of the child to do so. The Court must also consider making further Orders as set out in subsection 70NFB(2) of the Act, including Orders for community service, a fine of up to 60 penalty units (which currently equates to $12,600) or imprisonment.
The onus is on the applicant to prove that their former partner knew of the obligations imposed by the Order and intentionally failed to comply. If a breach is proven, there is only one defence available to the respondent, being that they had a reasonable excuse for the breach. Some of the circumstances that amount to a “reasonable excuse” are set out in section 70NAE of the Act.
In the recent first instance decision of Justice Gill in the matter of Bourman & Huffam , the mother was found to have had a reasonable excuse for withholding the children from supervised time with the father because the professional contact service had indicated to the mother that it was concerned about the risk of harm to the children. The mother’s case was greatly assisted by her having made a prompt application to vary the Orders upon receiving such information from the supervisors.
Conversely, in the recent case of Shill & Covel , Justice Loughman did not accept that the mother had a reasonable excuse to withhold time between the child and his father on two occasions in October 2018. The mother argued that the child was at risk in the father’s care. In this case, the mother also made an application for a suspension of time shortly after she says that she was told by the child and (apparently, though her evidence was not accepted) verified for herself that the child was being left alone in the father’s apartment. However, Justice Loughman said that it was not sufficient for the mother to withhold the child after making that application because the Order for suspension of time had not at that point actually been granted.
The Court adopts a very matter-of-fact approach to the determination of Contravention Applications and there is only one defence available if a contravention is established. To that end, where Parenting Orders are not working, parents should swiftly make an application to the Court to have the Orders varied in an effort to avoid the potentially very serious consequences of a finding of contravention.