Dealing with Breaches of Family Court Orders
If you and your ex-partner have a family court order in place and it is ignored (or breached), it can be frustrating and distressing to address. In Australia, even if you have parenting or property orders in place, the other party may choose not to comply with them. Unfortunately, the party being breached will need to follow up on the breach with a lawyer or court application.
The Importance and Legal Nature of Family Court Orders
Family court orders are legally binding decisions designed to protect the welfare and interests of those involved in family law matters, particularly children. When someone ignores or breaches a family court order, such as a parenting order or property settlement, there can be serious consequences, but depending on the type of breach, a legal process needs to be followed.
Court Procedures and Alternative Dispute Resolution for Breaches
The court takes breaches seriously to ensure its rulings are respected and complied with, but they don’t oversee that orders are followed automatically once they are initially granted. An application will need to be made for breaches to be addressed. If you are dealing with less serious but ongoing breaches, you can consider addressing these matters in mediation or with a Family Dispute Resolution practitioner.
This article will explain what happens when a family court order is contravened, the potential consequences, and the steps you can take if you believe an order has been breached.
How do family courts handle breaches of court orders?
Australian family law courts do not generally monitor family law cases after they have been finalised in court, which means that no one will know a breach has occurred unless it is reported. For this to happen, the impacted party can file a contravention application. This application notifies the court of the breach and requests that the offending party be held accountable.
The Family Law Act 1975 outlines various enforcement actions the court can take in response to breaches, ranging from fines to jail terms, depending on the severity of the contravention. Recent changes to the Family Law Act and Federal Circuit and Family Court of Australia Act 2021 have given the courts greater powers to address a breach of family court orders.
The Federal Circuit and Family Court of Australia manages breaches on a case-by-case basis. If a party claims a reasonable excuse, such as a genuine belief that breaching the order was necessary to protect a child from harm, the court may consider this before deciding on the appropriate action.
What is a breach (contravention) of a family court order?
When a family court order is breached, it’s called a ‘contravention’. This means that one party has intentionally or purposefully not followed the orders made by the court, whether it’s related to an existing parenting order, or a property settlement order. A contravention occurs when a person bound by a family court order, such as a parenting order or consent order, fails to comply with its terms. This can include disregarding arrangements related to child custody, failing to pay child support, or violating property settlement agreements. A breach of a court order can have severe legal consequences for the party at fault.
How is ‘contempt of court’ dealt with in family law matters?
There has been a lot of judicial literature about the phrase “Contempt of Court”. The Law of Contempt (3rd Edition Butterworths, London, 1996 at p 629) states:
Blatant and aggravated contempt, particularly when repeated by a person who has clearly been warned as to the possible consequences of defying an order, will quite properly attract an immediate custodial sentence as a mark both of the gravity of the contempt and the court’s disapproval and to deter contemnors and others who might be tempted to breach such an order.
Generally, the standard of proof for all proceedings in the Family Court regarding Contraventions is on the balance of probabilities, except where a prison sentence is to be considered for the offending party. Then, the standard is raised, and the Court must be satisfied beyond a reasonable doubt.
What is a reasonable excuse for breaching a family court order?
The court recognises that there may be circumstances where a breach of an order is unavoidable. For example, if following the order would have placed a child at risk, this may be deemed a reasonable excuse. However, the court will require evidence that the breach was necessary and will examine whether the person took reasonable steps to comply with the original order. If you have a legal issue with your ex-partner regarding parenting or custody arrangements, it’s wise to address it legally as soon as possible. If you feel that it is essential for your child’s wellbeing to breach an order, please contact a family lawyer, the police or relevant support services immediately. If you don’t, you could end up having enforcement proceedings initiated against you.
A reasonable excuse for an order breach may include when:
- One parent is genuinely unable to comply with an order, such as having an emergency or illness to deal with during a changeover
- The safety of a person, including the parent or child, is at risk due to child abuse or family violence
- Returning the child, or children poses an immediate or significant risk of child abduction
This list is not exhaustive, but it includes some of the more serious reasons that a court may find reasonable excuses for breaches. If any of these situations apply to you, please get in touch, and we can provide you with a proactive course of action.
Types of penalties for breaching a family court order
When the court determines that a party has contravened an order without a reasonable excuse, various penalties can be imposed, depending on the nature of the breach. These penalties include:
- Fines: Monetary penalties may be issued to the offending party.
- Community service: The court may order the party to perform community service as a form of punishment.
- Legal costs: The court can order the contravening party to pay the legal costs of the party who brought the application.
- Counselling or educational programs: In some cases, the offending party may be required to attend family counselling or a post-separation parenting program to address the underlying issues leading to the breach.
- ‘Make up’ time being ordered: If one parent purposely keeps a child away from the other without a reasonable excuse, the courts can order that the parent who has missed spending time with their child have that time made up.
- New parenting orders: Changes may be made to current orders around care arrangements or parental responsibility and decision-making.
- Sentence of imprisonment: For severe or repeated breaches, the court has the power to sentence the offending party to imprisonment for up to 12 months under section 70NFG of the Family Law Act 1975.
It is important to note that even if a jail term is imposed, the party remains liable for other obligations, such as child support payments.
Recovery orders in parenting matters
When a parent breaches a parenting order by withholding a child from the other parent, the court may issue a recovery order. This order allows law enforcement to return the child to the rightful parent or guardian. Recovery orders are often sought when a child’s living arrangements are disrupted due to a breach of the court’s ruling. This may also be the case if one parent relocates without a very good reason, such as safety issues like family violence.
In cases where a breach of a parenting order places a child at risk of harm, the court will act swiftly to protect the child’s best interests. If necessary, the court can issue a new order that alters the existing parenting arrangements to safeguard the child.
Seeking legal advice when an order is contravened
If you believe your ex-partner or another party has breached a family court order, it is essential to seek legal advice. Family law is complex, and the court’s response to a breach can vary depending on the circumstances. A lawyer can guide you through the process of filing a contravention application and advise you on the potential outcomes.
Additionally, if the order terms are ambiguous or difficult to follow, it is crucial to obtain clarification from a lawyer before taking any action. Misunderstanding an order can lead to unintended breaches, exposing you to serious legal problems.
Protecting yourself from the consequences of a contravention
If you are accused of breaching a court order, you may be able to defend your actions by demonstrating a reasonable attempt to comply with the order. For example, if you could not meet the order’s requirements due to unforeseen circumstances (such as illness or an emergency), the court may consider this when deciding on the appropriate penalty.
However, claiming a reasonable excuse without evidence is unlikely to succeed. Courts expect parties to make every effort to follow orders, and failure to do so can result in severe consequences. The courts will also look carefully at other factors influencing the matter.
Conclusion: Family courts take breaches seriously
Family court orders are designed to provide clear, enforceable guidelines that support the welfare of children and the rights of both parents. Ignoring or defying these orders can lead to serious legal ramifications, including fines, community service, or imprisonment.
If you are concerned about a potential breach of a family court order or unsure about the terms of an existing order, it is essential to seek legal advice. Acting swiftly can prevent the situation from escalating and protect you from further legal complications.
If you have any doubts about your Court Order or if the terms of the Order are ambiguous, call our Gold Coast Family Lawyers or Logan Family Lawyers for free family law advice before you evoke the ire of the Judge. It is better to have some sage advice than to be carried away in the back of a paddy wagon.
For more information or to discuss your case, book a free 15-minute consultation with our experienced Queensland family lawyers today. We’re here to help with all family law matters, from parenting orders and property settlements to enforcing existing court orders.