Family Law Practice Direction – National Contravention List

(FAM-CONTRAVENTION)

1. Introduction

1.1 This Practice Direction establishes a National Contravention List which applies to any Application – Contravention (Application) filed either pursuant to Part VII Division 13A or Part XIIIA of the Family Law Act 1975 (Cth) (Family Law Act) in the Federal Circuit and Family Court of Australia (the Court) from 1 September 2021.

1.2 The Court expects that all parties will comply with orders of the Court. Alleged breaches of Court orders will be taken seriously, and dealt with quickly. Parties who fail to comply with Court orders without reasonable excuse will be subject to costs consequences, other penalties and/or sanctions.

1.3 Legal practitioners appearing in the National Contravention List may also be subject to personal costs orders if the application or defence of the application is determined to be frivolous or without merit, or where non-compliance with the Rules of Court is demonstrated.

1.4 The key objectives of the National Contravention List are:

  1. to efficiently deal with Applications on a national basis in a timely, cost effective and safe way for all litigants;
  2. for Applications to be given a first return date within 14 days of filing;
  3. to ensure compliance with Court orders by all parties;
  4. to impose appropriate penalties or sanctions where a contravention has been proved and where a party has failed to demonstrate they had a reasonable excuse for non-compliance with Court orders;
  5. to proactively facilitate the resolution of underlying issues in disputes that lead 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.

1.5 Legal practitioners and parties are required to act consistently with the overarching purpose of family law practice and procedure, which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

1.6 Parties are expected to have complied with the pre-action procedures prior to filing an application, including exploring settlement options, unless:

  1. there are good reasons for not doing so; or
  2. it is not possible or appropriate for a party to follow the pre-action procedures.

1.7 Those circumstances may include issues involving risk to a party or a child of the proceedings, including risk of exposure to family violence.

1.8 This Practice Direction is to be read together with:

  1. the Family Law Act;
  2. the Federal Circuit and Family Court of Australia (Family Law) Rules 2021; and
  3. Central Practice Direction – Family Law Case Management.

1.9 To the extent this Practice Direction is inconsistent with any act, regulation, rule, or other legislative provision (whether or not expressly listed above), the act, regulation, rule, or other legislative provision shall prevail.

2. Filing in the National Contravention List

2.1 The National Contravention List will be administered by the National Contravention List Judicial Registrars (Contravention Registrars).

2.2 An Application is commenced by filing an Application – Contravention via email to contraventionlist@fcfcoa.gov.au.

2.3 The following documents must be filed with an Application – Contravention in the National Contravention List:

  1. an affidavit stating facts in support of the orders sought in the application;
  2. a copy of the order, bond, agreement or undertaking that is alleged to have been contravened;
  3. where required, a section 60I certificate unless an exception applies and an exemption is sought.

2.4 The affidavit filed with the Application must include:

  1. details of the acts or omissions which the applicant alleges the respondent has done to contravene the order, bond, agreement or undertaking (if there is more than one act or omission alleged, include details of each alleged act or omission);
  2. evidence that the respondent is aware of the contravened orders (for example, the orders were made by consent of both parties, or at a hearing where the respondent was present);
  3. evidence that the respondent had no reasonable excuse to contravene the order, bond, agreement or undertaking; and
  4. if it is an application for a contravention of a parenting order – states whether a court has previously found that the respondent contravened the primary order without reasonable excuse and the details of any finding made.

2.5 Applications will be considered by a Contravention Registrar within 14 days of lodgement.

2.6 If the application is deficient or non-compliant with the relevant Rules of the Court, the Contravention Registrar may decline to accept the application for filing. Where an application is not accepted, a fresh application (rectifying the deficiencies raised by the Contravention Registrar) is required to be lodged for consideration by the Contravention Registrar.

Notifying the other party

2.7 The applicant must effect personal service of the following documents on all other parties in accordance with the Rules of Court:

  1. Application – Contravention;
  2. affidavit; and
  3. a copy of the order, bond, agreement or undertaking that is alleged to have been contravened.

3. Operation of the National Contravention List

3.1 The National Contravention List will operate nationally and be conducted electronically.

3.2 Applications that are accepted for filing will be given a first return date:

  1. before a Contravention Registrar as near as practicable to 14 days after the date of filing; or
  2. if the application is filed in proceedings that are listed for final hearing within 8 weeks from the date of filing, the application will be listed to the Judge or a Senior Judicial Registrar for hearing.

3.3 If the application is accepted for filing and listed before a Contravention Registrar, they may do any of the following:

  1. require the respondent to identify whether or not they:
    1. concede that the orders have been contravened, or
    2. assert that they had a reasonable excuse for non-compliance with the Court’s orders; and
  2. if the respondent intends to defend the application on the grounds of reasonable excuse, order that the respondent file and serve an affidavit setting out the evidence that they intend to rely on to establish the grounds, and the timeframe for the filing of such an affidavit;
  3. advise the parties, and the legal practitioners of the costs, penalties and sanctions that may be imposed, including the possibility of personal costs orders, if the application is determined to be frivolous or without merit, or where the respondent is unable to demonstrate a reasonable excuse for non-compliance;
  4. refer the parties to participate in family counselling, family dispute resolution or other course, program or service pursuant to section 13C of the Family Law Act, particularly if parties have not attempted to resolve their dispute before filing the application, or where a section 60I certificate was not required prior to filing of the application;
  5. identify what outcome is sought by the applicant in filing their application, including if they seek to vary the orders asserted to have been contravened or seek for the Court to impose a penalty or other sanction on the respondent;
  6. in a parenting contravention:
    1. reaffirm the Court’s focus on the best interests of the children; and
    2. consider whether it would be appropriate to refer the matter to a Court Child Expert for the preparation of a Child Impact Report;
  7. identify whether there are ongoing proceedings and if so, discuss whether the issues the subject of the application can be addressed as part of those existing proceedings; and
  8. explore whether a resolution of the application is possible without the need for a trial, including assisting parties with varying the orders through negotiation or referral to other dispute resolution.

3.4 Where an application is listed for hearing, it will be listed before a Senior Judicial Registrar or a Judge, and given such priority as determined by the Contravention Registrar, having regard to the particular circumstances of the matter and competing priorities of the Court.

 

The Honourable Justice William Alstergren
Chief Justice (Division 1) | Chief Judge (Division 2)
Federal Circuit and Family Court of Australia
Date: 1 September 2021