Filing a contravention application for breach of parenting orders
When a party breaches a parenting order, the other party can apply for a contravention order under s 70NAC of the Family Law Act. The court can impose a range of remedies from make-up time through to community service, fines, or imprisonment for serious or repeated breaches. The applicant must prove the breach on the balance of probabilities.
This is an 8-step workflow for filing a contravention application under Division 13A of Part VII of the Family Law Act 1975 (Cth) when parenting orders have been breached without reasonable excuse.
Before you start
- Sealed parenting orders that are currently in force
- Evidence of one or more specific breaches of those orders
- The client has attempted to resolve the issue informally (e.g. written notice to the other party) or urgency makes this impractical
- The limitation period has not expired (12 months from the date of the alleged breach)
The workflow
Identify the specific breaches
Review the parenting orders clause by clause and identify each specific breach. Document the date, time, and nature of each breach. A contravention application must identify the precise order contravened and the specific act or omission constituting the breach.
Assess whether a reasonable excuse may apply
Consider whether the respondent may raise a reasonable excuse defence under s 70NAE. Reasonable excuses include a genuine belief that the actions were necessary to protect the child from harm, or that the respondent did not understand the obligation. Prepare to rebut any likely defences.
Gather and organise evidence
Collect all evidence supporting each alleged breach: text messages, emails, diary entries, school records, photographs, and statements from witnesses. Organise evidence chronologically and linked to each specific breach.
Attempt pre-filing resolution
Unless urgency prevents it, send a letter to the other party or their solicitor identifying the breaches and requesting compliance. This demonstrates to the court that you attempted resolution before filing.
Draft the contravention application
Complete the Application — Contravention form. Identify each order contravened, the date and nature of each breach, and the remedy sought. Common remedies include make-up time, variation of orders, costs, community service, or compensation.
Prepare the supporting affidavit
Draft an affidavit setting out the factual basis for each alleged breach, annexing the supporting evidence. Address the elements the court must be satisfied of: the existence of the order, the respondent's knowledge of the order, and the specific contravention.
Consider whether to seek interim or urgent relief
If the child is at risk or the breaches are ongoing, consider applying for interim orders or urgent injunctive relief at the same time as filing the contravention application. This may include recovery orders under s 67Q if the child has not been returned.
File, serve, and prepare for hearing
File the contravention application and affidavit through the Commonwealth Courts Portal. Serve the respondent personally (personal service is generally required for contravention applications). Prepare submissions addressing each breach and the appropriate remedy.
What you will have at the end
A contravention order that may include make-up time with the child, a variation of the existing parenting orders, an order for the respondent to attend a parenting program, compensation, costs, community service, or in serious cases a fine or imprisonment.
Common issues
- Filing outside the 12-month limitation period for the alleged breach
- Failing to identify the specific order contravened with precision
- Not anticipating a reasonable excuse defence and preparing rebuttal evidence
- Seeking disproportionate remedies that the court is unlikely to grant for a first breach
- Omitting to attempt informal resolution before filing, which may affect costs
Run this workflow on a real matter
Quillio helps you map each alleged breach against the specific order contravened, assess reasonable excuse defences, and draft the contravention application with supporting affidavit. See /practice-areas/family-lawyers or start a free trial.
This workflow is a general guide. Contravention applications involve quasi-criminal proceedings where the standard of proof is the balance of probabilities but the consequences can be serious. Tailor your approach to the severity and frequency of the breaches.
Try this workflow with Quillio.
Quillio can run this workflow on a real matter, with citations to current AU authority on every step. The free trial requires no credit card.
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