Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
The Courts have to ensure that their decisions are enforced and are never happy when their orders are contravened.
Contravening, or ‘breaching’ a Family Law Court Order is a serious matter and the Family Court of Australia can impose upon the offender a fitting punishment.
Under the Family Law Act 1975 (Cth), there are a number of penalties available to punish the party who is found to have contravened Court Orders.
The Court may make an order:
- That varies an existing order; or
- Resumes the arrangements set out in an earlier order; or
- Compensates a person for lost contact time with a child or puts the offending party on notice that if they continually refuse to comply, they will be punished.
The Court may also choose to create entirely new Orders which provide for different arrangements.
Often, these provide greater certainty that the Orders will be complied with.
If you are not seeking punishment for the offending party and simply want a quick remedy to ensure the resumption of earlier arrangements, it may be possible to file an ‘Application in a Case’ rather than an ‘Application – Contravention’.
The Court also has the power to impose a more serious order such as a good behaviour bond, community service, major fine or imprisonment.
Reasonable excuse to contravene Family Court Orders
In some cases, there are acceptable reasons behind the contravention of the Court Order.
In order for the Court to accept a contravention, the excuse for doing so must be a ‘reasonable excuse’.
This can include when the offending party did not understand the obligations imposed by the Order, or if they believed it was necessary to breach the Order protect the health or safety of themselves, a child or another person.
This can include circumstances when parties breach parenting orders because they believe the child is at risk in the other party’s care.
If this is the case, it is advised that legal advice is sought as to whether you should seek for the Orders to be changed prior to you having to breach them.
This can mean you will not have to wait for the other party to bring contravention proceedings against you.
Contravention proceedings should be confined to the clearest cases.
This precedent was established in the case of Biddell & Ervin  where the party applying for the Contravention Orders had to prove that the contravening party:
- intentionally failed to comply with the order, or
- made no reasonable attempt to comply with the order, and
- has no “reasonable excuse for contravening” the order under s 70NAE or any other “reasonable
Case study Of Contravention Application
In the case of Irvin & Carr  FamCA 492, a mother was ordered not to relocate from the Sunshine Coast to Byron Bay.
She breached the court orders and relocated there anyway.
The court imposed a bond on the mother, then varied the order so that the child would live with the parents on a week on/week off basis pending the mother’s return.
If she did not return, the child was to live with the father and spend alternate weekends with the mother.
The mother’s appeal to the Full Court was dismissed, the Court approving that a variation under the court orders should be made as if it were an application to vary a parenting order.
The Applicant was able to prove that the mother intentionally failed to comply with the court orders and no reasonable excuse for doing so.
This disregard for court orders was addressed by the court who then varied the existing family law court orders.
The mother then had to pay the father’s costs for the original application and the appeal.