When a family court order is breached, it can create significant challenges and stress for all parties involved. This article provides guidance on what steps to take next in such situations, emphasizing the importance of documenting the breach, seeking legal advice, and considering enforcement options available through the court system.
Find out more about breaching a family law order, the consequences and what steps you can take if court orders have been contravened. Dealing with the family court can be an overwhelming and stressful experience, even without the added compilation of another party breaching family court orders. Breaching an order is a serious offence unless there is a reasonable explanation. There are several orders that a court can issue in response to the breach, depending on the severity of the circumstances. Let’s take a closer look.
What Is A Family Court Order?
Family court orders are legal documents produced by a judge stipulating what action you need to take when dealing with your family law matters. Family court orders are legally binding, which means that you have to do what the order specifies. When the matter relates to children, they are called consent or parenting orders. The federal circuit court determines what is in the child’s best interest if the parents cannot agree.
What Is A Contravention or Breach?
When a family law court has issued final orders, the people involved must take reasonable steps to comply and follow existing orders. Contravention is the legal term for breach, which means not following the orders as set by the court.
The court will consider the type of breach, the severity and frequency. Breaching orders is a serious offence.
What Can You Do If A Breach Occurred?
In some cases, if the breach is minor, it may be resolved with an informal discussion. If this is not successful, couples can attend a family dispute resolution (FDR) counselling session and, if applicable, make changes to the order if it needs to be adjusted. Both parties can sign a parenting plan to change and produce more suitable orders for both parties.
Family law is extremely complex. You should consult your family lawyer for legal advice.
Family Dispute Resolution
The court requires couples to use family dispute resolution mediation before applying for orders. FDR is a mediation session where parties are encouraged to make a genuine effort to resolve their disputes without the need to go to court. It is less expensive, time-consuming, and stressful than going to court. It is mandatory for all parenting family law matters. The mediation is conducted by a registered family dispute practitioner who will issue a family dispute resolution certificate of attendance, which must be presented to the court before finalising orders.
In the case of a breach of an order, FDR may not be appropriate, or it could be an urgent matter. In some circumstances, exemptions will be granted, for example, a history of family violence or child abuse. In this case, an affidavit will be issued explaining why they can not attend FDR.
If family law orders are not being followed, another alternative is to apply for an enforcement order. It is possible to file one or both requests simultaneously. An enforcement order is an order that reminds the other party of their obligations, requests their compliance with the family law order and warns of consequences if their behaviour continues.
Generally, the court is reluctant to change final orders unless it can be proved that a significant change of circumstances has occurred or if the breach is severe and proves to be an immediate threat to children or other parties.
If the other party is breaching an order and there is no reasonable excuse or way to resolve the issue via FDR, you may need to submit a contravention application for non compliance to the court. A contravention order will request that the other party comply with the order and punish them for their behaviour. When submitting the contravention application, you will need to provide a supporting affidavit with evidence of the breach, a certificate from a registered FDR practitioner to prove that you have attended family dispute resolution or an exemption affidavit. In the statement, you need to specify:
- Which part of the order was contravened
- Circumstances of how it occurred
- Whether it was major or minor breach
- Details about the frequency of the breach if it was one occurrence or multiple breaches
- Proof of the breach
The breach must be proven in court beyond a reasonable doubt as criminal prosecution may result if the order is granted. After hearing the application, the court will come to one of four conclusions.
The court will find:
- The claim was not proven adequately
- The breach was confirmed, but there was a valid excuse
- The violation was minor without a reasonable excuse
- The breach was significant without a reasonable excuse
Consequences Of Breaching A Court Order
The court may impose a penalty if it finds that a family law order breach occurred without a reasonable excuse or reasonable attempts to comply. Depending on the individual circumstances, it may result in any of the following consequences:
- Payment of the other parties legal costs
- Compensation for lost time with a child
- Changes to the existing order
- Attend a parenting program for separated couples
- Pay for any costs incurred as a result of the breach
- Participate in community service
- Enter into a bond for good behaviour, to attend counselling or dispute resolution
- Pay a fine
- A term of imprisonment
Family lawyers are experts in all matters relating to family law. Seeking legal advice can ensure that you have a thorough understanding of the court and application process.
What Is A Reasonable Excuse?
Family law orders are binding; non compliance is a severe offence. In some instances, a person may argue that they had a reasonable excuse. Or circumstances may have changed, which makes it difficult for either party to comply with the order.
Penalties may be waived even if there was a contravention of the order if the family law court accepts the reasonable explanation.
The family law act states the exceptions can be one of the following:
- For the protection of someone’s health or safety
- They didn’t realise they were breaking the law or understand their obligations at the time
- The breach did not last longer than was necessary for someone’s safety and protection
Examples Of Non-Compliance With Family Court Orders
Family law is complex and deals with various matters, including separation and divorce, children, property settlement and marriage and de facto relationships. Contraventions of court orders can vary depending on the individual circumstances and orders.
A breach may occur in a property settlement case if one party fails to sign documentation, pay a cash sum, or transfer property.
When one person fails to make spousal maintenance payments in separation and divorce orders, they break the order.
Regarding children, the failure to return the children at the agreed time can be an infringement of the family law court orders.
When court orders are made in the family court, they are legally binding, which means that you have to do what is stated in the existing order. If a breach occurred, couples could attend a Family Dispute Resolution (FDR) counselling session and, if applicable, make changes to the order if it needs to be adjusted. Or it could be an urgent matter, in which case they can apply for an enforcement order, or a contravention order may be required if there is substantial evidence of a severe breach. In some circumstances, exemptions will be granted if there is a valid reason like protecting the safety of someone, family violence, or if the individual was not aware of their obligations at the time.
The court may impose a penalty if they find that an order has been breached without a reasonable excuse, and it can even result in imprisonment.
Applying for court orders can be complicated. It is advisable to seek legal advice from family lawyers who understand the complexities of the court and the process involved.
1. What Is A Family Court Order?
Court orders are legal documents produced by a judge that specifies what action you need to take when dealing with your family law dispute. When the matter relates to children, they are called consent or parenting orders. When an order is made in court, it is legally binding, which means that you have to do what is stated in the order.
Family law deals with various matters, including separation and divorce, children, property settlement and marriage and de facto relationships.
2. What Can You Do If Someone Breaches A Court Order?
In some cases, if the breach is minor, it may be resolved with an informal discussion. If this diis not successful, couples can attend a family dispute resolution (FDR) counselling session and, if applicable, make changes to the order.
Another alternative is to apply for an enforcement order, which requests the other person to comply with the order, reminds them of their obligations, and warns of consequences if their behaviour continues. Or, if matters are severe, a contravention order will request that the other party comply with the orders and punish them for their behaviour.