If your Ex-Partner has breached or failed to comply with the orders made by a court, they can be penalized if you file an application alleging a breach of order or non-compliance with the order.

It is important to note that a Contravention Application differs from that of an Enforcement application. The latter is filed where you don’t want to penalize the other party but rather just resume the arrangement stipulated by the orders.

For a Contravention Application to be successful, the applicant must prove as per section 70NAC that the respondent either:

1. Intentionally did not comply with the orders; or
2. Made no reasonable attempt to comply with the orders and have no reasonable excuse for contravening the order.

Section 70 NAE outlines the meaning of a reasonable excuse for contravening the order.

A person is taken to have a reasonable excuse if:

1. They did not, at the time of the contravention, understand the obligations imposed on them by the orders and the court is satisfied that the respondent ought to be excused; or
2. They reasonably believed that contravening the orders was necessary to protect the health or safety of a person and that their contravention did not extend beyond what was necessary to protect that person’s health or safety.

There is a large range of remedies available to the Applicant should they be successful in their Contravention application.

For example, the Court may order that:

1. The arrangements set out in an earlier order are resumed;
2. The applicant be compensated for lost contact time with the child (as per section 70NDB);
3. A previous order be varied (as per section 70NBA);
4. The respondent be put on notice that if they do not comply with an order, they will be punished; or
5. The respondent be punished by way of a fine or imprisonment.

Additionally, if you are successful in your application, costs may be awarded. That is to say, the respondent can be ordered to pay the applicant’s legal costs for the contravention application. However, it is worth noting that if an applicant fails to prove the alleged contravention (or even if they do but the offender has a reasonable excuse for the breach), the applicant themselves may be ordered to pay some or all of the respondent’s costs, under sections 70NCB(1) or 70NDC(1).

When filing a contravention application, the following documents must be filed with the Court:

1. An application for contravention of court orders;
2. A supporting affidavit;
3. A certificate from a family dispute resolution practitioner, or an affidavit for non-filing of a family dispute resolution certificate; and
4. A copy of the existing orders.