.png)
Filing an Application for Contravention of Parenting Orders is a critical step in addressing breaches of parenting or child-related orders under Australian family law. Whether you seek to enforce an existing Federal Circuit and Family Court of Australia (FCFCOA) order or impose consequences for non-compliance, following the correct legal procedures is essential. Understanding the process will help you navigate this complex area of family law with confidence.
Purpose of the Application:
The Application - Contravention Form is used to seek a court order for imposing consequences on someone who has breached a parenting or child-related order under Division 13A of Part VII of the Family Law Act 1975.
Consider Before Filing:
Outcome: Determine the outcome you want — whether it's enforcement of the order or punishment for non-compliance.
Seek Legal Advice:
Getting legal advice before filing is strongly recommended to understand your legal rights and responsibilities as well as the potential effects and implications flowing from the court orders you intend to seek.
Besides papering/providing the following documents in support of your Application - Contravention, you will need to disclose information regarding any child abuse, family violence, details of each count of contravention, details of any current/pending proceedings between the parties (such as case/file number, etc.) in the FCFCOA or any other court, details of any previous contraventions, and so on.
Prepare Required Documents:
Application – Contravention Form: Download the Application - Contravention Form and fill it out accurately and completely.
A copy of the order, bond, agreement, or undertaking that you believe has been breached.
An Affidavit – Family law and child support. Your Affidavit must be organized in numbered paragraphs with separate headings for each alleged breach. It must (i) specify the order you claim has been breached (e.g., Order 3 from the orders dated 16 October 2021), (ii) provide evidence that the respondent was aware of the order, such as confirmation that the order was made by consent or during a hearing where the respondent was present, (iii) outline each act or omission by the respondent that allegedly contravenes the order, bond, agreement, injunction, or undertaking.
A valid Section 60I Certificate or, if applicable, an affidavit requesting exemption from the dispute resolution process.
If the order was made within the last 12 months and the breach shows serious disregard, include an Affidavit of Non-Filing of Family Dispute Resolution Certificate.
Filing and Service:
After the Court accepts your Application – Contravention and Affidavit, arrange person service of sealed copies on the respondent as per the Rules, and file proof of service on the Commonwealth Courts Portal.
Filing the Application:
Submission: This application cannot be eFiled online. You must submit the completed form and supporting documents via email to contraventionlist@fcfcoa.gov.au.
Document Retention: Keep a copy of the completed form and all documents for your records.
Serving the Application:
Personal Service: After receiving the sealed copies from the Court, you must arrange personal service of the sealed court documents on the respondent. However, you must not serve these documents personally. You can ask an over-18 friend or relative to serve these documents on the respondent. Alternatively, you can engage the services of a professional server who can do that for you for a fee that usually ranges between AUD 150 - 300. See here: How to Serve By Hand (Personal Service).
Filing Fee:
There is no fee for filing this application.
Response from the Respondent:
Upon receiving a notice of an application alleging contravention of an order, the Respondent must attend the hearing. (Attending the hearing will allow the respondent to explain, for example, whether or not they have contravened the court orders or whether they had a "reasonable excuse" for their non-compliance within the meaning of sections 70NAD of the Family Law Act.)
The failure to participate in the hearing may result in an arrest warrant being issued against the respondent, or the court may proceed to make the necessary orders in the respondent's absence. The court may order, among other things, the following in the absence of the respondent:
Consequences for Contravention of Orders Affecting Children: In cases where an application alleges a contravention of an order related to children, the Court has a range of potential actions it may take. These include varying or suspending the original order, mandating attendance at a post-separation parenting program, or making an 'order for make-up time' with the child. Additionally, the Court may require the respondent to enter into a bond, cover all or part of the legal costs incurred by the other party, compensate for reasonable expenses lost due to the contravention (such as airfares), pay a fine, or even face imprisonment.
Consequences for Contravention of Orders Not Affecting Children: For applications alleging a breach of an order not involving children, if the Court determines that the breach is proven and there is no reasonable excuse, it may impose various penalties. These can include requiring the respondent to enter into a bond, pay a fine, or serve a prison sentence. The Court may also make other necessary orders to ensure compliance with the original order.
(For more information relating to Application - Contravention, please see Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Division 11.2.1).
By following these steps, you can ensure that your Application is correctly filed and served, helping you pursue the enforcement of parenting or child-related orders through the Court.
Please note that this guide is intended for general informational purposes only and does not constitute legal advice. If you are unsure about the process, it is advisable to seek legal advice. Lawyers can provide guidance on the correct procedures and ensure compliance with court requirements.
Need to consult a Family Lawyer? Book a Zoom appointment with us.
Comments