fbpx
 

What Happens When You Break Family Court Orders?

breach

What Happens When You Break Family Court Orders?

The Courts have to ensure that their decisions are enforced and are never happy when their orders are contravened.

Contravening, or ‘breaching’ a Family Law Court Order is a serious matter and the Family Court of Australia can impose upon the offender a fitting punishment.

Under the Family Law Act 1975 (Cth), there are a number of penalties available to punish the party who is found to have contravened Court Orders.

The Court may make an order:

  1. That varies an existing order; or
  2. Resumes the arrangements set out in an earlier order; or
  3. Compensates a person for lost contact time with a child or puts the offending party on notice that if they continually refuse to comply, they will be punished.

The Court may also choose to create entirely new Orders which provide for different arrangements.

Often, these provide greater certainty that the Orders will be complied with.

If you are not seeking punishment for the offending party and simply want a quick remedy to ensure the resumption of earlier arrangements, it may be possible to file an ‘Application in a Case’ rather than an ‘Application – Contravention’.

The Court also has the power to impose a more serious order such as a good behaviour bond, community service, major fine or imprisonment.

Reasonable excuse to contravene Family Court Orders

In some cases, there are acceptable reasons behind the contravention of the Court Order.

In order for the Court to accept a contravention, the excuse for doing so must be a ‘reasonable excuse’.

This can include when the offending party did not understand the obligations imposed by the Order, or if they believed it was necessary to breach the Order protect the health or safety of themselves, a child or another person.

This can include circumstances when parties breach parenting orders because they believe the child is at risk in the other party’s care.

If this is the case, it is advised that legal advice is sought as to whether you should seek for the Orders to be changed prior to you having to breach them.

This can mean you will not have to wait for the other party to bring contravention proceedings against you.

Contravention proceedings should be confined to the clearest cases.

This precedent was established in the case of Biddell & Ervin [2012] where the party applying for the Contravention Orders had to prove that the contravening party:

  • intentionally failed to comply with the order, or
  • made no reasonable attempt to comply with the order, and
  • has no “reasonable excuse for contravening” the order under s 70NAE or any other “reasonable
    excuse”

 

Case study of a Contravention Application

In the case of Irvin & Carr [2007] FamCA 492, a mother was ordered not to relocate from the Sunshine Coast to Byron Bay.

She breached the court orders and relocated there anyway.

The court imposed a bond on the mother, then varied the order so that the child would live with the parents on a week on/week off basis pending the mother’s return.

If she did not return, the child was to live with the father and spend alternate weekends with the mother.

The mother’s appeal to the Full Court was dismissed, the Court approving that a variation under the court orders should be made as if it were an application to vary a parenting order.

The Applicant was able to prove that the mother intentionally failed to comply with the court orders and no reasonable excuse for doing so.

This disregard for court orders was addressed by the court who then varied the existing family law court orders.

The mother then had to pay the father’s costs for the original application and the appeal.

Hayder Shkara
Hayder Shkara
hayder@justicefamilylawyers.com.au

Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.

6 Comments
  • Avatar
    David Matthews
    Posted at 09:55h, 18 February

    Yes yes, one would think there’s actually some degree of ethics involved in what’s written here. However, one has to understand that all those decisions the court makes are entirely based around gender. And gender of not only the parent but the child as well. Breaching a court order for example is far more serious for a father than a mother. Mothers get to use all manner of excuses. Fathers don’t. Don’t be fooled into thinking decisions are based on the welfare of the child either. The courts are there to supposedly balance the coffers. But they fail dismally.

    • Hayder Shkara
      Hayder Shkara
      Posted at 21:49h, 18 February

      Hi David. On the contrary, this case is an example of when a father received the support of the court on the original decision, and in appeal. In my experience, the courts do not look at gender and make an attempt to resolve matters in a child-focused approach..

  • Avatar
    David
    Posted at 11:00h, 18 February

    So how were the orders actually changed? What was the penalty applied, in addition to the changing of orders?

    • Hayder Shkara
      Hayder Shkara
      Posted at 21:47h, 18 February

      Yes the orders were changed and the mother had to pay the father’s costs for the original application and the appeal.

      The new order in place was that, if the mother decided to stay relocated, she would receive the child on alternate weekends. If she returned back to the same location as the father, it would be a week on week off arrangement.

  • Avatar
    Andrew long
    Posted at 05:37h, 19 February

    Yep and until the biase stops and actual real gender equality happens and the father get fairness then realistically 1 case in a thousand dont count for squat. The system is not fair and is extremely biased. Nothing will and fathers will continuesly get screwed

  • Avatar
    Steve
    Posted at 15:04h, 21 February

    Your not wrong there Andrew your spot on. The court doesnt give a crap about the male. My ex told the judge that she was breaching cause she didnt want the children to speak to the father myself. Then the judge the crumb scum turns and says to me to pay 3600 of my exs court costs because i did a contravention application. Like WTF your kidding me. Yep thats what i had to do. Its the biggest corrupt co operation with its ABN number that i have ever come across. They dont practice law they run a child destruction clinic. Scum of the earth that forces a human to be homeless and no inheritance ever left for any child. Dogs scum filthy disgusting child abusing family court.

Post A Comment