Family court order breach occurs when a party fails to comply with court orders under family law. Family court order breach is a serious and punishable offence. In Australia, we also use the term ‘contravention’ of order to refer to non-compliance.
This blog will discuss the topic of family court order breach, including the consequences of doing so. Moreover, the article also discusses the steps that a person can take in case of family court order breach by the other party.
Before we begin with the topic of family court order breach, let’s also understand what is a family court order? Read on to find out more.
What Is A Family Court Order?
When a family court makes a binding order about some issue such as parenting matters or property settlement, it is termed as a family court order. These orders can be court decisions or court judgements.
Broadly. family court orders are of two types:
- Parenting orders; and
- Financial orders
Parenting orders:
Family courts make parenting orders in case of parenting disputes between two parties. These orders can set out parenting arrangements between the two parties. For example, parenting orders will allow a parent to spend weekdays with their children, allowing the other parent to spend weekends etc.
Additionally, it can include things like which parent the child will live with, and how much time the child will spend with the parties. Parenting orders will also include matters like how the child will communicate with the non-resident parent, and other relatives like grandparents.
Family courts considers the best interests of the child and all aspects related to the care and welfare of the child before making parenting orders. Parenting orders are legally binding on the parties.
Financial orders:
On the other hand, financial orders are court orders regarding property settlement or division of assets. Moreover, courts can also make financial orders for spousal maintenance or de facto maintenance.
It includes things like the amount of money one party must pay to the other party, and the types of payment that the party must make (periodic, lump sum etc). It also includes matters related to transferring property or selling property.
Family Court Order Breach: How Does It Happen?
As mentioned above, all court orders are legally binding. Breaching these orders is a serious offence. A person may commit a family court order breach in a variety of manners. This includes if:
- A party makes no genuine attempts to comply with family court orders;
- They intentionally fail to obey the terms and conditions of the orders; and
- The party prevents another party from obeying the order, or in some way helped another party to not comply with the order.
What Are Reasonable Excuses?
In some cases, the act of breaching the order can be justified if the party had a reasonable excuse to breach the order. Section 70NAE of the Family Law Act (1975) gives an overview of the reasonable excuses that the Court will accept, such as:
- The person failed to understand the order’s obligations and was unaware that there were breaching the order;
- They believed that it was necessary to breach the order to protect the health and safety of a child or another person; and
- The breach lasted only as long as it was necessary to protect the healthy and safety of the child, or the contravening party themselves.
Consequences Of Family Court Order Breach
Section 70NFB of the Family Law Act (1975) outlines the consequences that one may face in the event that they fail to comply with a court order. The penalties can include:
- Imprisonment (in extremely serious cases) for up to 12 months or so – in accordance with Section 70NFG of the Act.
- Heavy monetary fines;
- Making payments and compensating for all losses that the other party has suffered due to the non-compliance of order;
- Community work (under Section 70NFC of the Act).
Have You Been Affected Because Your Ex-Spouse Failed To Comply With Court Orders?
If the contravention of order impacts the other party, there are certain steps that they can take to respond to the contravention. As with most family law matters, these issues can be resolved via family dispute resolution, or by way of approaching family courts.
If the contravening party has engaged in a minor breach that has resulted in minor impacts, the other party can attempt to sit with the contravening party in family dispute resolution sessions. Mediators in family law can help with such sessions.
Importantly, even if the party wishes to make a court application, they need to show evidence of family dispute resolution. The party who has been affected by the breach needs to file a Contravention Application.
The party filing contravention application will also need a supporting affidavit, and Section 601 certificate that provides evidence that the parties attempted family dispute resolution.
Parties who need urgent resolutions of breach need to provide evidence of family dispute resolution in cases that involve child abuse or family violence.
Moreover, the party has to provide details of the breach in the supporting affidavit. The court will then make orders and decisions based on various factors such as details of the breach, circumstances in which the party breached the order etc.
Subsequently, the courts may make orders that:
- Vary the existing order;
- Make contravening party compensate the other party;
- Order contravening party to attend parenting programs;
- Make the party pay for legal costs of the other (aggrieved) party
- Impose fines or imprisonment in serious cases.
Importance Of Guidance From Family Lawyers
Matters related to family court order breach can be complicated. Therefore, all parties are recommended to take legal advice from family lawyers who have years of experience under their belt.
The party making a contravention application needs to take legal advice before proceeding with court procedures. Their affidavit must prove that the other party breached the order. Family lawyers can aid with preparation of court applications.
At JB Solicitors, we have a team of expert and friendly family lawyers who are passionate about helping clients reach their desired outcomes.
Contact us if you have more enquiries.
