An order made by the Federal Circuit and Family Court of Australia is legally enforceable. Parties bound by the order must comply with the order and take reasonable steps to do so.
What is a contravention?
A person is taken to have contravened the order if the person is bound by the order and has intentionally failed to comply with the order or has made no reasonable attempt to comply with the order. Contravention of the order can also take place when a person intentionally prevents compliance with an order by a person who is bound by it, or aids and abets a contravention of the order by a person who is bound by it.
Where there has been a contravention, an enforcement application or a contravention application can be brought forth before the Federal Circuit and Family Court of Australia to be heard.
Where contravention cannot be established
To deter parties from bringing baseless applications, the court may order the applicant to pay for some or all of the respondent’s legal costs.
Where contravention is established
The “reasonable excuse” defence
A person is not considered to have contravened the parenting order if there was a “reasonable excuse”. A child’s reluctance to spend time with the other parent will not be sufficient to make out a reasonable excuse defence. A reasonable excuse is where the person reasonably believed that their actions constituting the contravention were necessary to protect the health and safety of the child and that the contravention was not for any longer than necessary.
If the reasonable excuse defence is established, then the court may make an order for make-up time. Where make-up time is not ordered, the court may order the applicant to pay for some or all of the respondent’s legal costs.
No defence
Where the court is satisfied that a contravention has occurred, and the reasonable excuse defence has not been established, for less serious contraventions, the court may:
- Make an order to attend a post-separation parenting course;
- Make an order for make up time;
- Seek for the person contravening the order to pay compensation for expenses incurred as a result of the contravention;
- Adjourn the proceedings to allow a party to apply for a further parenting order that discharges, varies, suspends or revives a primary parenting order;
- Seek for the person who contravened the order to pay a bond;
- Order for the respondent to pay for some or all of the costs of the applicant; and/or
- Order for the applicant to pay for some or all of the costs of the respondent if no other order was made.
Where a person has exhibited a serious disregard for their obligations, it is constituted to be a more serious contravention. In addition to the above orders, the court may also deal with the contravention in a quasi-criminal manner and may:
- Make an order for the respondent to pay for all of the applicant’s costs unless the court is satisfied that doing so would not be in the best interests of the child;
- Make a community service order;
- Seek for the person who contravened the order to pay a fine; and/or
- Order a sentence of imprisonment.
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