Australia’s new merged family court system is due to begin operations in a few weeks. And one of the new accompanying initiatives is the introduction of a “National Contravention List” to handle the ongoing problem of enforcing family court orders. While full details of the List have not yet been released, initial reports have indicated the key objectives of the List. Let’s have a quick look.
(National Contravention List…continued)
What are contraventions?
When a parenting order is made, each person affected by the order must comply or follow it. A contravention, in other words a breach of the order, occurs when someone intentionally fails to comply with the order or makes no reasonable attempt to comply with the order.
Parties can make a contravention application if they allege a breach of a court order has occurred. This can be in relation to parenting orders, or financial orders.
A court will consider whether the person had a “reasonable excuse” for not complying with court orders. (You can read more about “reasonable excuses” on our blogs here and here.)
Note that contraventions can also be pursued against third parties who intentionally prevent compliance with the order by a person who is bound by it or who aids or abets a contravention of the order by a person who is bound by it.
What happens when someone is found to have contravened orders?
Court remedies available under the Family Law Act range from measures to implement enforcement of an order to punishment of a person who doesn’t obey an order without reasonable excuse. For example, the court can make orders to:
- ensure the resumption of the arrangements set out in an earlier order;
- compensate a person for lost contact time;
- vary an existing order;
- punish a person by way of a fine or imprisonment.
Key objectives of the new National Contravention List
The Government has announced that the National Contravention List will address expectations that all parties will comply with the orders of the court. It is intended that alleged breaches of orders “will be taken seriously and will be dealt with quickly”.
The goal is to ensure compliance with orders by all parties and to impose appropriate penalties or sanctions if a contravention is proved and there has been no reasonable excuse for not complying.
A twin aim is to steer parties into alternative dispute resolution processes to resolve the underlying issues which have lead to the filing of the contravention application. In doing this, the courts will be “responsive to a party’s wishes to resolve matters without recourse to additional litigation” and applications will be triaged to dispute resolution wherever possible.
To speed up the process for contraventions, it is anticipated that applications will be given a first return date within 14 days of filing.
How might a matter be handled on the List?
A pilot for the National Contravention List, held at the Federal Circuit Court’s Melbourne registry in 2018, provides some insight into how a Registrar might handle a matter coming up on the National Contravention List.
Applications come before a Registrar who generally will take the following steps.
- Asks the applicant what outcome they are seeking.
- Conducts a preliminary assessment around documentation filed by the applicant, as to whether it complies with the requirements of the Family Law Act.
- Confirms that the court’s focus is on the best interests of the children, and explains that this may not be best served by a contravention application.
- Asks the parties if a resolution of the application is possible without the need for a trial.
- Asks the parties if they would be willing to attend mediation to resolve the issues and/or attempts to assist the parties with a non-trial based resolution.
- Makes directions either for dispute resolution processes or for the application to be listed before a designated contravention judge for determination.
It will be interesting to see how the new National Contravention List fulfils its objectives and hopefully provides parents with more certainty around how they can get a co-parent to comply with parenting orders.
For help with a family law matter, including any issues relating to contraventions of orders, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
