Parenting Cases and Contravention Applications

strong>Introduction

A contravention application made by a party in a family court matter arises where one party is claiming that the other party is in breach of final Orders. When parties agree final consent orders setting down arrangements for the care of their children or instead go to trial asking the family court to make orders, it can often be very difficult to predict what will or will not work for their family in the future. As life changes and children grow up, we can find that the Orders made some years prior don’t suit one or both parties any longer.

In cases where one party decides to deviate from Orders without the consent of the Court or the other party, this may result in the other party filing a contravention application, to enforce the terms of an Order which are being breached.

Recent Case Law

In the recent case of Maddax & Danner [2019] FamCAFC 38, just because you have filed a contravention application first in time, it doesn’t mean that your application will be prioritised and resolved by the Court before an application to vary parenting orders is determined.

In that case, the parties had a long-standing history of keeping the child from spending time with the other parent which spanned a little over four years and saw final Orders for the care of the child made in both Germany and Australia.
Recently this case was once again brought before the Australian Family Courts when the Father filed a contravention application against the mother, accusing her of failing to make the child available to spend face to face time with the Father under existing parenting Orders.

The Mother responded by filing an application to vary the existing Orders, stating that in reality, the child hadn’t seen the Father in a year and a half because the Father had remained in Germany while the child was living in Australia. The Mother claimed that that the final parenting Orders should be varied to cease all unsupervised contact between the Father and the child. The Mother claimed to be concerned that the Father may  otherwise disappear with the child.

Court Analysis

The Court ordered a Family Report be obtained including recommendations as to what arrangements would be most appropriate for the child. The Court adjourned both applications and suspended the previous parenting Order which gave the Father face to face contact with the child.

The Father appealed this interim Order of the Court. Amongst other grounds, the Father argued that the Court needed to hear his contravention application before hearing the Mother’s application to vary the parenting Orders.

It is worth noting here that a contravention application can lead to the enforcement of Orders or in grave circumstances a penalty being imposed on the breaching party.

On appeal the Family Court found that the law was clear in this matter. Where previously the Father would have been correct in asserting that his contravention application needed to be dealt with before the Court could entertain the Mother application to vary, this is no longer the case following amendments to the Family Law Act 1975 (Cth).

Orders

The Court said that the judge was correct in her decision to send the matter to a Family Report before substantively dealing with the contravention application for a number of reasons. This included that judges are not required to follow a strict process in children’s matters and have the ability to decide what issues require further investigation and which issues are dealt with first. The overriding obligation of the Court is to make decisions in the child’s best interest.

The Court also noted that the judge had the ability to review and vary children’s Orders on a contravention application. The Court could use this power whether or not there was any finding of an actual contravention. The judge’s ability to review the existing Orders did not create an obligation for Her Honour to first determine whether the Mother had actually breached the existing Orders, as the ability to review the Orders came from the mere application being before the Court, not from a finding that the Orders had been breached.

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