A contravention of court orders happens when someone does not follow the orders set by the court.
“Contravention” is the legal term for “breach.”
When a court makes orders, whether these are consent orders or orders made after a case has been heard in court, the orders are enforceable by law and must be followed.
If someone has breached an order, it means that they have done one of the following:
- Intentionally failed to comply with the order
- Made no reasonable attempt to comply with the order
- Intentionally prevented compliance with the order by a person who is bound by it
- Aided or abetted a contravention of the order by a person who is bound by it
The only way the court can penalise someone for contravening an order is if the other person to whom the order applies files an application alleging a breach of order or non-compliance with the order.
What To Do When Someone Contravenes an Order
The first thing to do if you want to accuse someone of breaching an order is to get legal advice.
Each case is judged according to its individual circumstances and outcomes vary, so it is very important to understand how the law applies to your specific situation.
To accuse someone of contravention of an order, you must file the following documents in court:
- An application for the contravention of an order
- A supporting affidavit
- A certificate from a family dispute resolution practitioner, or an affidavit for non-filing of a family dispute resolution certificate
- A copy of the existing orders
There is no filing fee.
An affidavit is a sworn document signed in the presence of an authorised witness, often a Justice of the Peace, a solicitor or a barrister.
In the supporting affidavit, the applicant details their understanding of the circumstances of how the other party has allegedly not followed the orders.
The paragraph of the order that was contravened must be specified.
More than one contravention can be alleged in a single application.
Family dispute resolution is part of the pre-filing process.
It aims to allow people to reach an agreement without going to court.
Both parties must make a genuine effort to resolve the issue by family dispute resolution before anyone can make an application to the court.
It is less formal than court and is generally less stressful, less expensive, less time-consuming and less emotionally draining.
A certificate from a registered family dispute resolution practitioner proves that the people involved in the application have attempted to resolve the dispute without going to court.
Family dispute resolution certificates may be called s.60i certificates, meaning they relate to section 60i of the Family Law Act 1975.
Attending family dispute resolution is usually mandatory before going to the Family Court.
However, exceptions can be made in cases that involve family violence, child abuse, the risk of family violence or child abuse, or if the circumstances make it very urgent.
An affidavit for the non-filing of a family dispute resolution certificate would be required instead.
This affidavit allows the applicant to explain the matters that make their application urgent or why the other party cannot participate effectively in family dispute resolution.
If an application requires a family dispute resolution certificate and the applicant cannot provide one, the court will not be able to accept the application.
Standard of Proof
The court will apply what is called a “standard of proof” to any decisions it makes about the application for contravention of court orders.
The person making the application must prove their allegations on the “balance of probabilities.”
The applicant must prove that the allegations are more likely to exist than not: the other party is more likely to have breached the orders than they are to have followed them.
If the court finds the allegations of the contravention of orders serious enough to consider a prison sentence, then the allegations must be proved “beyond reasonable doubt.”
This is the same standard of proof required in criminal courts.
Reasonable Excuses for Contravening an Order
Compliance with court orders is defined as taking all reasonable steps to comply with the order.
If circumstances have changed to make it impossible for either party to reasonably comply with an order, then the order can be changed.
If someone has been accused of contravening an order, they may have a reasonable excuse for doing so.
The court accepts reasonable excuses on these grounds:
- The person did not understand their obligations under the order, or
- The person believed on reasonable grounds that their actions causing the contravention were necessary to protect the health or safety of a person, including themselves or the child, and
- This contravention did not last any longer than was necessary to protect the health and safety of the above person
If the court accepts a reasonable excuse, they will waive any penalties even if there was found to be a contravention of court orders
What Happens in Court?
The court will come to one of four conclusions after hearing the application alleging a contravention of orders.
The court will find that:
- The alleged contravention was not adequately proven
- The contravention was proven but the respondent had a reasonable excuse
- There was a less serious contravention without a reasonable excuse
- There was a more serious contravention without a reasonable excuse
If the court determines the outcome of the case to be one of the last two, the person who breached the order may be penalised in one of several ways.
The types of penalties the court may impose vary in severity.
- Changing, suspending or discharging the primary order
- Ordering both parties to go to a post-separation parenting program
- Requiring the person who contravened the order to enter into a bond
- Ordering them to pay some or all of the applicant’s legal costs
- Ordering them to pay compensation for expenses lost due to the order breach
- Requiring them to partake in community service
- Ordering the payment of a fine
- Ordering a prison sentence
The court has the authority to make orders and decisions about the person who breached the orders without them being present in court.
The court may also adjourn to allow the applicant or the other party to apply for further orders.
Location and Recovery Orders
Location orders are specific orders that the court issues when a person who allegedly contravened another court order cannot be found.
Under a location order, people and organisations have to provide any information they have about the person to the court so that they can be located.
Recovery orders are similar but are imposed for the recovery of a child or children.
Parenting orders and consent orders often define the arrangements for custody, communication and parental responsibility for children of the relationship.
If a person refuses to return the child to the other person or people who have rights of custody or parental responsibility, then they are in breach of an order.
A recovery order may be necessary.
Recovery orders are issued to the Marshal of the Court, the Australian Federal Police and state or territory police officers, authorising them to take all reasonable steps to recover the child.
Imprisonment for Breach of Contact Orders
In 2004, the Family Court of Australia at Melbourne heard a case on the contravention of court orders, specifically in relation to contact orders, D & C (Imprisonment for Breach of Contact Orders)  FamCA 814 (31 August 2004).
Orders had been in place between a mother and father that ensured the father had contact time with their daughter, known as G, who was born in 1998.
The mother had breached these orders multiple times by preventing contact between the father and child.
After one breach she had been required to enter into a bond and had almost immediately breached the bond.
In May 2004 the court ordered that the mother be imprisoned for 30 days for her lack of compliance with the orders.
She upheld the view that the child should have no contact with the father as otherwise, she would be at risk of sexual abuse.
The judge did not accept this view and dismissed her allegations.
Imprisonment was a last resort, but as the mother was being entirely non-compliant with the order and seemed very unlikely to change her mind, it was determined that this would be the most appropriate penalty.
According to the judge, other penalties such as community service or paying a fine would be regarded by the mother as inconveniences and would not cause her to reflect on the consequences of contravening an order.
In May and June 2004 the mother served 12 of the 30 days in prison.
She appealed to the court, indicating that from now on she would comply with the orders.
The judge allowed this appeal as the purpose of imprisonment is not punishment for its own sake but ensuring compliance.
The remaining 18 days of imprisonment were suspended on the condition that the mother comply with all court orders relating to contact between the father and the daughter G.