What happens when there is failure to comply with orders under the Family Law Act? Part XIIIA, Division 2, Sections 112AD – 112AO of the Family Law Act 1975 contains the laws for failure to comply with orders (those that do not affect children). This article discusses failure to comply with orders under the Family Law Act, except those that affect children.
Section 112AD: Sanctions for Failure to Comply with Orders
Under Section 112AD, if a person contravened an order under the Family Law Act without reasonable excuse, the Court may make an order imposing a sanction to the person concerned.
Additionally, the sanctions available that the Court can impose include the following:
- to require the person to enter into a bond in accordance with Section 112AF,
- to impose a sentence by order on the person, or make an order directed to the person, in accordance with Section 112AG,
- to fine the person not more than 60 penalty units, or
- to impose a sentence of imprisonment on the person in accordance with Section 112AE.
Moreover, the Court considers the sanction that is most appropriate in the circumstances. However, the Court should not impose a sentence of imprisonment unless it thinks that the contravention was intentional or fraudulent.
An order imposing a sanction may take effect immediately, or at the end of a specified period or on the occurrence of a specified event.
Section 112AE. Sentences of Imprisonment
Under Section 112AE, a sentence of imprisonment imposed on a person shall be expressed to be:
- for a specified period of 12 months or less, or
- for a period ending when the person:
- complies with the order concerned, or
- has been imprisoned pursuant to the sentence for 12 months or such lesser period as is specified by the Court.
Additionally, a Court shall not sentence a person to imprisonment unless it knows that, in all the circumstances of the case, the other sanctions provided under Section 112AD are not appropriate for the case.
Furthermore, if a court sentences a person to imprisonment, the court shall:
- state the reasons why it is satisfied that imprisonment is the appropriate sanction, and
- cause those reasons to be entered in the records of the court.
Moreover, the failure of a court to comply with these conditions does not invalidate a sentence. Furthermore, a court that sentences a person to imprisonment may:
- suspend the sentence upon the terms and conditions determined by the court, and
- terminate a suspension.
Additionally, a court, when sentencing a person to imprisonment may, if it considers it appropriate to do so, direct that the person be released upon the person entering into a bond after he or she has served a specified part of the term of imprisonment. A bond is a bond (with or without surety or security) that the person will be of good behaviour for a specified period of up to 2 years.
Finally, a court that has sentenced a person to imprisonment may order the release of the person if it thinks that the person will, after release, comply with the order concerned.
Section 112AF: Bonds
Under Section 112AF, a bond is to be for a specified period of up to 2 years. A bond may be:
- with or without surety; and
- with or without security.
The conditions that a bond may impose on a person include a condition requiring the person to be of good behaviour.
Moreover, if a court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person, in language that the person is likely to readily understand:
- the purpose and effect of the proposed requirement, and
- the consequences that may follow if the person fails:
- to enter into the bond, or
- having entered into the bond–to act in accordance with the bond.
Section 112AK: Variation and Discharge of Orders
Under Section 112AK, a court may vary or discharge an order that it made under Section 112AD. Either the court that made the order, or the Federal Circuit and Family Court of Australia can vary or discharge the order.
Furthermore, a variation of an order under Section 112AD shall be such that the order, after variation, is an order that the court could have made under that section in respect of the contravention in respect of which the court made the first-mentioned order.
If a court discharges an order under Section 112AD it may make another order under that section in respect of the contravention in respect of which the court made the first-mentioned order.
Where a court varies or discharges an order made under Section 112AD, the court may give such directions as to the effect of the variation or discharge as the court considers appropriate.
Section 112AM: Relationship Between Division and Other Laws
Section 112AM applies where an act or omission by a person:
- constitutes a contravention of an order under this Act; and
- is also an offence against any law.
If the person is prosecuted in respect of the offence, a court in which proceedings have been brought under Section 112AD in respect of the contravention of the order shall either:
- adjourn those proceedings until the prosecution is complete, or
- dismiss those proceedings.
Additionally, the court may prosecute or convict a person for the offence. Importantly, nothing in this Section renders the person liable to receive punishment twice in respect of the same act or omission.
Sections 112AG & Section 112N: Additional Sentencing Alternatives and Arrangements With States and Territories
Under Section 112AG, a court exercising jurisdiction in the State or Territory may impose a sentence or make an order where:
- under the law of a participating State or a participating Territory, a court is empowered (whether generally or in particular cases) to impose a sentence by order or make an order of a kind in respect of a person convicted of an offence against the law of the State or Territory, and
- an arrangement under Section 112AN in respect of the State or Territory makes provision for and in relation to the carrying out of sentences imposed, or orders made, of that kind under this Division.
Under Section 112AN, the Governor-General may make arrangements with the relevant authority of a State or a Territory (other than Norfolk Island) for:
- the exercise of powers, and the performance of functions, by officers of the State or Territory, and
- the making available of facilities of the State or Territory
for and in relation to the carrying out of sentences imposed, and orders made, under this Division (failure to comply with orders).
Section 112AO: Division Does Not Limit Operation of Section 105
Section 112AO states that nothing in this Division (failure to comply with orders) intends to limit the operation of Section 105.
Seeking Legal Advice
If you are facing sanctions on failure to comply with orders, we highly advise seeking legal advice.
JB Solicitors has a leading team of expert family lawyers that can help with your case. Furthermore, we can offer you legal advice on how to proceed on your failure to comply with orders and other relevant matters. Lastly, if you have any more queries on failure to comply with orders, contact us today.
