Understanding A Contempt Of Court Application in Family Court

If you’re in the process of a separation or divorce, chances are you’ve heard of a contempt application in the Family Court of Australia.

But what is a contempt application?

How do you go through the process and what should you be mindful of if you’re considering one?

Justice Family Lawyers are here to help break down this process and help you understand what contempt of court is.

Key Points:

• There needs to be a blatant disregard of the court orders.
• Contempt proceedings should not be used as a means to get your own way, but rather as a last resort after all other attempts have failed.
• It is important to obtain legal advice regarding a contempt application and to present evidence in court in order for the court to make its decision.

Contempt Of Court

In the face of the court, contempt is an act that is considered to interfere with or undermine the authority or dignity and performance of the courts.

Examples of contempt include:

• Abusing and swearing at a judge or magistrate
• Filming witnesses with a view to intimidation
• Prevaricating or refusing to answer questions
• Refusing to take the oath or give evidence
• Refusing to leave the court when directed
• Disobeying court orders including subpoena

Also read: How To Report A Breach Of Family Court Order in Australia

Proving Contempt of a Parenting Plan

Proving contempt of a parenting plan requires demonstrating that the other party wilfully disobeyed the terms of a court-ordered parenting arrangement. This process involves a clear presentation of evidence and a structured approach to showing non-compliance. Below are key considerations for proving contempt in such cases.

Elements to Prove Contempt

To establish contempt, you must provide evidence of three critical elements:

Existence of a Binding Parenting Plan

The parenting plan must be court-approved and legally enforceable. Informal agreements or non-registered plans, while valuable for co-parenting, cannot form the basis of a contempt application.

Wilful Breach of the Plan

It must be shown that the other party intentionally disregarded their obligations under the plan. Honest mistakes, misunderstandings, or circumstances beyond a person’s control—such as emergencies—may not constitute contempt.

Evidence of Harm or Impact

Demonstrating how the breach negatively affected the children or disrupted parenting arrangements can strengthen your case. This includes showing missed visitations, refusal to return children as scheduled, or failure to meet other essential obligations.

Collecting Evidence

Evidence is critical to proving contempt. Gather as much relevant documentation as possible, such as:

• Text messages, emails, or written correspondence showing the breach or any related disputes.
• Witness statements from third parties who observed the breach.
• Documented patterns of behaviour that indicate repeated non-compliance.
• Photographic or video evidence, if relevant, to show specific incidents.

Keep meticulous records of any incidents where the parenting plan was not followed, including dates, times, and descriptions.

Court Expectations

Family Court expects evidence to be presented in a factual and objective manner. Personal frustrations or accusations without supporting documentation may weaken your case. Focus on how the breach affected the children’s best interests and disrupted the agreed parenting arrangements.

Consequences of Proving Contempt

If the court is satisfied that contempt occurred, it may impose penalties ranging from fines to parenting education courses or, in extreme cases, imprisonment. Courts prioritise measures that encourage compliance with orders rather than punitive actions.

Proving contempt can be a challenging process, but careful documentation and a clear presentation of evidence are crucial to achieving a favourable outcome. Always consider seeking legal advice to strengthen your position and ensure your case is presented effectively.

What is a Contempt Application?

Contempt proceedings are civil judgments that take place in the Family Court, allowing a spouse to seek a remedy against the other when they have failed to adhere to court orders.

A contempt application is essentially a document that allows the opposing spouse to take civil legal action against another if they are found to be in contempt of an order made by a court. In this context, if someone is in contempt of a court order it means that a spouse has acted against the orders of a court, to which a contempt application will be then put in place to punish the offending spouse for their breach.

More often than not, contempt applications arise due to non-compliance with orders regarding parenting arrangements, or the transfer of property.

When Should You Make a Contempt Application?

The most basic rule when it comes to commencing contempt proceedings is that they are reserved for those extreme circumstances where a spouse has willfully and continually failed to comply with court orders.

Contempt proceedings should never be used selfishly or for attention.

Instead, contempt proceedings should be used as a last resort when all other attempts have failed to get the other side to comply with orders.

Before you commence contempt proceedings, other avenues should be explored first.

Steps in the Contempt Process

The first step in the contempt proceeding process is to obtain legal advice.

A contempt application can be complicated and requires knowledge of the applicable state or federal family law and court procedures.

So, it’s always important to seek legal advice from a qualified court lawyer to obtain the best outcome.

Once you have consulted a lawyer, documents will be drafted in preparation for the contempt application. These documents list various facts that must be proven for a court to find the other spouse to be in contempt.

The next step will be to make the application to the Family Court. After the application is made, a court hearing will occur at a later date. At this hearing, both parties will present evidence for the court to make its decision.