A contravention of court orders occurs when a person fails to comply with or breaches a court order made under the Family Law Act 1975 (Cth). These orders are legally binding directives issued by the Federal Circuit and Family Court of Australia (FCFCA) or the Family Court of Australia (FCA) to address matters related to children, property, and spousal maintenance following a separation or divorce.
Key Elements of Family Law Order Contravention
Family Law Order
The order must be a court order made under the Family Law Act 1975 (Cth), specifically parenting, financial, or restraining orders. These orders are designed to address matters related to children, property, and spousal maintenance following a separation or divorce.
Intent or Recklessness
The individual must have failed to comply with or breached the specific terms of the family law order. Non-compliance occurs when an individual fails to act by the order’s provisions, while a breach involves an act that directly violates the order’s terms. For instance, a parent who fails to provide visitation as ordered by a parenting order is considered non-compliant with the order. Conversely, a parent who physically obstructs the other parent from collecting the child for visitation is deemed to have breached the order.
Absence of Reasonable Excuse
The individual must not have a reasonable excuse for non-compliance or breach. Reasonable excuses may include genuine misunderstandings of the order’s terms, unforeseen circumstances, or actions taken to protect the safety of oneself or others, particularly the children involved.
Consequences of Contraventions
The legal consequences of contravening Family Court orders can be quite severe, particularly because these orders often involve sensitive matters like child custody, property settlements, and family violence. Here are some of the key legal consequences:
- Finding of Contempt: Contravening a Family Court order can lead to a finding of contempt of court. This is a serious matter where the court determines that a person has willfully disobeyed its order. A finding of contempt can result in penalties, including fines or imprisonment.
- Enforcement Proceedings: The affected party can initiate enforcement proceedings. This process involves returning to court to seek an order compelling the other party to comply with the original order. If the court finds an order breached without reasonable excuse, it can impose various penalties.
- Fines and Imprisonment: Depending on the severity and nature of the contravention, the court can impose fines or, in more serious cases, a term of imprisonment. The court considers factors like the nature of the contravention and any harm caused by the breach.
- Change or Variation of Orders: Persistent non-compliance with court orders can lead to a reassessment and possible variation of the original orders. For example, if one parent consistently breaches the orders in child custody cases, the court might alter these orders to ensure the child’s welfare.
- Compensation for Time Lost with a Child: In cases involving children, the court may order additional time to compensate for time lost due to the contravention.
- Legal Costs: The court may order the party in breach to pay the other party’s legal costs associated with the enforcement proceedings.
- Impact on Future Legal Proceedings: A history of contravening court orders can affect a person’s credibility in future legal matters. Courts may view them as less reliable, which can influence the outcome of ongoing or future legal disputes.
Procedure for Alleging Contraventions of Court Orders
The procedure for alleging contraventions of Family Court orders in Australia involves several steps, including:
Step 1: Gather Evidence
Collect documentation, witness statements, or other relevant evidence supporting your contravention claim. This may include copies of communication records, police reports, or medical records.
Step 2: Consider Family Dispute Resolution (FDR)
Before initiating court proceedings, it is mandatory to attend FDR unless an exemption applies. FDR is a process facilitated by a registered family dispute resolution practitioner to help parties resolve their issues without court intervention.
Step 3: Prepare Application Documents
Suppose FDR is unsuccessful or an exemption applies. In that case, you must file an Application for Contravention with the Federal Circuit and Family Court of Australia (FCFCA) or the Family Court of Australia (FCA). The application should clearly outline the details of the alleged contravention, the specific order(s) involved, and the relief you seek.
Step 4: Attach Supporting Documents
Include copies of the relevant court orders, the FDR certificate (if applicable), and any evidence gathered to support your claims.
Step 5: File the Application and Pay the Fees
Submit the completed application form and supporting documents to the respective court registry. You will also be required to pay the applicable filing fees.
Step 6: Serve the Application
You must serve the application and supporting documents on the respondent, who you allege has contravened the order. This is typically done through personal service, registered mail, or an approved electronic method.
Step 7: Attend Court Hearings
The court will schedule a hearing to consider your application. You may be required to attend the hearing in person or participate remotely.
Step 8: Present Evidence and Arguments
At the hearing, you can present your evidence, affidavit, witnesses, and arguments to support your claim of contravention. The respondent will also have the chance to respond to the allegations.
Step 9: Court Decision
The court will consider the evidence presented and decide whether the alleged contravention has occurred. If the court finds that a contravention has taken place, it may order various remedies, such as:
- Enforcement of the original order
- Variation of the original order
- Imposition of penalties, such as fines or imprisonment
- Award of costs
Step 10: Appeal
If unsatisfied with the court’s decision, you may have the right to appeal to a higher court. However, appeals are only granted in limited circumstances, such as if there was a legal error or the evidence did not support the decision.
Facing Contravention of Court Orders?
Are you dealing with a breach of Family Court orders? Justice Family Lawyers are here to guide you through this complex situation. Navigating the legal consequences of contravention can be challenging, but with our expert assistance, you’ll have the support you need to enforce your rights and achieve a fair outcome.
Don’t let a contravention of court orders disrupt your life. Contact Justice Family Lawyers today for professional advice and dedicated representation. Protect your interests and restore peace to your family life.
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.