Application - Contempt

Rule 11.71 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 allows an application to be made for a person to be dealt with for contempt of court. The application must be in the approved form, state the contempt alleged and be supported by an affidavit setting out the facts relied on (r 11.71(2)). The court's power comes from s 112AP of the Family Law Act 1975. Where the conduct is a breach of an order, s 112AP only applies if the breach involves a flagrant challenge to the authority of the court; other breaches are dealt with as contraventions. A natural person found in contempt can be imprisoned, fined or both, and the court can also order punishment on terms, suspend punishment or require security for good behaviour (s 112AP(4), (6)).

When you need it

• You are a party to family law proceedings and the other person's conduct was a flagrant challenge to the court's authority or a serious disregard of their obligations under an order, which is the threshold the court's form and website describe.
• The conduct is a contempt of the court that is not a breach of an order under the Family Law Act (s 112AP(1)(a)).
• Not for an ordinary failure to follow an order: that is usually an Application - Contravention under Division 11.2.1.
• Not where the only complaint is unpaid maintenance that has since been paid: s 112AP(1A) says that is not a contempt.

1. 1

   Court and filing details

   Tick Division 1 or Division 2 of the Federal Circuit and Family Court, and give the full name of the person the application is filed on behalf of. Leave the court use boxes (file number, court date and so on) for the registry.

2. 2

   Part A - the respondent

   Enter the respondent's family name, given names, address and email. Part A tells the respondent they must attend the hearing and that a warrant may issue if they do not.

3. 3

   Part B - about you

   Give your name and an address for service in Australia, with phone and email. If you use a lawyer's address, include the firm name and lawyer's code.

4. 4

   Part C - the alleged contempt

   For each act or omission, state precisely what the respondent did or did not do, with the date, time and place. Use a separate paragraph for each contempt and attach a copy of any order or undertaking it relates to. Do not put your evidence here: it goes in the supporting affidavit (r 11.71(2)(c)).

5. 5

   Part D - affidavit of applicant

   Complete this part only in front of a person who can witness it. The form says to sign before a Justice of the Peace, notary public or lawyer, who fills in the place and date and ticks their capacity.

6. 6

   Prepared by

   Tick whether you or a lawyer prepared the application, and add the lawyer's name and code if applicable.

• File the application together with an Affidavit - Family law and child support setting out the facts relied on (r 11.71(2)(c)).
• The court's eFiling page says a contempt application cannot be filed on the Commonwealth Courts Portal. It must be filed by email to the registry where the matter is being heard; the filing address is on that court location's page.
• Serve the application and affidavit on the respondent personally (r 11.71 note, Table 2.2). The server must not be the party (r 2.35(3)) and the court's service page says they must be over 18, such as a process server.
• Unless the court directs otherwise, serve it at least 7 days before the hearing (r 2.31), then file proof of service such as an affidavit of service (r 2.32).
• A filing fee may apply - check the court's current family law fee schedule.

• Keep the statement of the contempt precise. Each allegation is treated like a charge: at the hearing the court tells the respondent of it and asks whether they admit or deny it (r 11.71(6)).
• Attach the order or undertaking said to have been breached. Without it the court cannot see the obligation.
• If the respondent is likely to leave the jurisdiction, the court can issue a warrant for their arrest until they attend or give security (r 11.71(5)).
• Contempt carries serious penalties. The court's website recommends getting legal advice before filing.