Parties must not breach a family court order as it is a legally binding order made by the court. A family court order is often the very last resort for resolving a family dispute. When a court makes a family court order, it is legally binding on all parties. This is regardless of whether it is on an interim or finalised basis.
When people breach a family court order, the other party has a range of options for enforcing the order. Additionally, they can get a new order if there is a family court order breach. This article will discuss different ways to handle a family court order breach.
What Is A Family Court Order?
Generally, a family court order can include a decision or judgement made by a judicial officer. A judicial officer is a person that acts as a judge in a court of justice. Family law court order includes a parenting order or a financial order. A parenting order is a set of orders regarding parenting plans or arrangements for a child. This orders deals with:
- Who the child will reside with;
- How much time will be spent with each parent;
- How the parent will communicate with the child;
- Any other aspect of care and welfare of the child.
On the other hand, a financial order is a set of orders that handle property division. Moreover, it also handles decisions surrounding spousal or de facto maintenance. It may determine the costs that must be paid to another person by a certain time. This also includes the transferring or selling of property.
What To Do If There Is A Family Court Order Breach?
A person may commit a family court order breach if they:
- Deliberately failed to comply with the order
- Made no reasonable attempts to comply with the order
- Prevented or helped prevent someone else from complying with the order
There is a way to penalise a person who committed a family court order breach. The party affected by the breach of order can file a contravention application against the party who fails to comply. This application is used for breaching a family court order under Section 13A of the Family Law Act 1975. Thus, the party accusing their partner of a family court order breach must provide a:
- Contravention Application
- Supporting Affidavit
- A certificate from a registered family dispute practitioner or;
- An affidavit for non-filing of a family dispute resolution certificate
An authorised witness must sign the supporting affidavit with details of the party’s alleged non-compliance.
Section 60I also states that it’s essential for both parties to reach a genuine agreement through mediation. You may seek an exception from providing a family dispute resolution certificate if your matter is urgent. For example, if a case involves alleged family violence or child abuse.
Reasonable Excuses For Non-Compliance
If a party has a good cause for not following a family court order, they may not incur any legal consequences. The court will accept the following legitimate justifications under Section 70NAE:
- If the person did not understand the obligation imposed by the order
- The person believed on reasonable grounds that their actions causing the violation was necessary for a child’s protection or safety.
- The contravention did not last longer than was necessary for the other party’s and child’s protection and safety.
What Are The Penalties?
There is a warning notice on court orders that explains the probable penalties for a family court order breach. One of the following repercussions may apply, depending on the context and the type of contravention:
- Payment of all or some of the party’s legal costs
- Compensation to the other party for lost time with a child
- The requirement to attend a post-separation parenting program
- The requirement to perform community service.
- Entering into a bond that can last up to 2 years. This may require the person to be on good behaviour, attend counselling, or participate in a dispute resolution.
- Payment of fines
The Court may also change the orders or delay the case to allow a party’s request for amendment. If it is difficult to comply with an order, the Court might modify the present order to assure future compliance.
Family Court Order Breach: A Case That Led To Imprisonment
In more extreme cases, people that breach a family court order can go to prison. An example we can use is D & C’s case from 2004. There were orders for the father that ensured his time with his daughter. On the other hand, the mother was found to have breached multiple court orders.
This prevented contact between the father and the child. After one breach, she was required to enter a bond and had almost breached the bond as well. This resulted in her imprisonment for 30 days in May 2004 because of non-compliance.
The mother stated the child should have no contact with the father because there is a risk of sexual abuse. However, the judge did not accept this and dismissed her allegations. Imprisonment was the last resort in this case, because of the mother’s non-compliance.
This was determined as the most appropriate penalty. According to the judge, the mother regards community service and fines as inconveniences. Additionally, this would not cause her to reflect on the consequences of contravening an order.
The mother served 12 of the 30 days in prison in May and June 2004. She appealed to the court indicating that she would comply with the orders from now on. The judge allowed this appeal as the purpose of imprisonment is not punishment for its own sake.
The remaining 18 days of imprisonment were suspended under one condition: That the mother complies with all court orders relating to the father and child’s contact.
Importance Of Seeking Legal Advice
The case of D & C included a lot of legal complications that led to imprisonment. That’s why proper legal advice is needed when tackling a family court order breach. Our experienced family lawyers at JB Solicitors can help you in drafting a court order.
Additionally, we can help if the other party in your family law matter breaches a court order. We can represent you in court and decide on what’s just and fair for all parties. We also offer mediation services should you opt for agreements outside of court.
Contact our family-friendly team of lawyers today.
