A common complaint made by clients who are in the middle of a family law dispute, or have already have Court Orders in place, is that the other party is breaching, or not complying with the Orders.
When Orders are made by a Court, whether by consent, or by the Court after a defended hearing, the Orders are binding on the parties and must be complied with. There are serious consequences for a party who fails, without a reasonable excuse, to comply with Orders of the Court. Consequences include: requiring the arrangements under the previous order to resume; varying the existing order; requiring the person who has contravened the orders to pay the other parties’ costs; imposition of a fine; and, in the most extreme circumstances, a term of imprisonment.
A person is considered to have contravened an Order if they have:
1. Intentionally failed to comply with the Order;
2. Have made no reasonable attempt to comply with the Order;
3. Intentionally prevented compliance with the order by a person who is bound by it; or
4. Aided and abetted a contravention of the order, by a person who is bound by it.
In recent times however, it has been difficult to prosecute these breaches in the already overwhelmed family law system.
On 1 September 2021, with the creation of the Federal Circuit and Family Court of Australia, the National Contravention List was established. The National Contravention List will hear all contravention applications in an efficient manner, ensuring that all breaches of court orders are taken seriously, The key objectives of the National Contravention List include:
1. to ensure applications are dealt with in a timely, cost effective and safe way;
2. for applications to be listed before the Court within 14 days of filing;
3. to ensure and increase compliance with court orders; and
4. impose appropriate penalties or sanctions where a contravention has been proved and there is not a reasonable excuse;
5. to proactively facilitate the resolution of underlying issues in disputes that leads to the filing of such applications;
6. to triage appropriate matters to dispute resolution; and
7. to be responsive to a party’s wishes to resolve matters without recourse to additional litigation.
The National Contravention List also seeks to make lawyers more accountable for their role in making and/or defending contravention applications. As a result, legal practitioners appearing in the Contravention List may be subject to personal costs orders if the application or defence is determined to be frivolous, or without merit, or where non-compliance with the Rules of the Court is demonstrated.
The Court hopes that improving the way contravention applications are dealt with will ensure and improve compliance with Court Orders. If you would like advice in relation to the contravention of court orders or filing an application in the National Contravention List, contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.
Author: Ellen Russell, Associate