Whether its through consent or through litigation, the effect of an Order is the same: It binds parties to a precise set of instructions and rules. These are not suggestions which one can choose to follow or ignore at their leisure. What happens when Family Court Orders are ignored? Failing to follow orders can lead to serious legal consequences, including fines or, in some serious instances, imprisonment.
In the context of family law, this is no exception. Whether the issue relates to parenting matters, property division, or child support, court orders must be followed.
But what happens when someone simply ignores orders?
This is often at the forefront of people’s minds in family law proceedings. From time to time, parties find themselves in circumstances where the other party has failed to comply with orders. Whether this failure is intentional or otherwise, is up for scrutiny, but ultimately that failure is a breach of the Orders.
What is a breach?
A breach occurs when a party to an order does not adhere to what a court order says, and this called a contravention.
A Contravention can happen in many ways. In parenting matters, this can often look like a parent failing to drop a child off at the agreed time, failing to communicate information or repeatedly arriving late for handovers or prevent handovers or prevent communication between a child and the other parent. Generally, a person is believed to have contravened an order if they:
· Did not follow it intentionally;
· Did not make a genuine effort to comply;
· Help someone else break it;
· Prevent the other person from complying.
While not all contraventions are malicious, the courts do not take them lightly, especially if they are ongoing or have the potential to cause harm to the other party or a child. It is crucial to understand just because a party breached an order does not mean it is automatically categorised as a contravention.
Finding or declaring a breach as a contravention is a legal process whereby the court scrutinises each breach and independently considers if a breach occurred and makes a judgement which identifies the breach as a contravention. This process is technical and not all breaches are contraventions.
Therefore, you should discuss any breaches that have occurred with a family lawyer and obtain tailored advice.
Are there valid reasons for breaching an Order?
The short answer is, yes.
There are limited instances which the court considers being valid reasons for a breach. A person may have a reasonable excuse if, for example:
· They didn’t understand what the order required (though this is rarely accepted if legal advice was available).
· They acted to protect someone’s safety, perhaps the child’s or their own, and only broke the order for as long as necessary.
Ultimately, if a party breaches a court order, they must prove that they had a genuine reason for doing so. Simply disagreeing with the order or being unhappy with the arrangement will not be sufficient.
The party claiming that a breach has occurred is expected to demonstrate that the other party was provided with every opportunity to rectify the breach and they routinely chose not to do so and continued to breach the orders.
What can you do?
If you’re on the receiving end of a contravention, there are steps you can take. The most common is filing a Contravention Application with the Federal Circuit and Family Court of Australia.
The other party should be put on notice in writing that they are breaching the orders prior to an application being made and if the breach continues then consider a contravention application. Prior to any application for contravention, the parties are required to attend family dispute resolution (’FDR’) and genuinely attempt to resolve the issues. There are some exceptions to this rule:
· The matter is urgent.
· There is a history of family violence or child abuse.
· The application relates to a contravention that occurred within the last 12 months, demonstrating a serious disregard for obligations under the order.
Whether these exceptions apply depend on each individual person’s circumstances. If none of the above exemptions apply to you, then you will be expected to provide evidence of attending FDR. This is generally illustrated by producing a s60I certificate indicating that FDR was attempted by the parties.
It is recommended that you obtain legal advice from a family lawyer as soon as the breach has occurred.
We have witnessed circumstances where though the circumstances would have otherwise been deemed as urgent the party failed to act promptly and in a timely manner which ultimately led to the urgency being irrelevant as too much time has passed. This can cause significant delays in the application, it’s preparation and ultimately increased costs. A contravention application is not something that can be arranged overnight, you are required to file an Affidavit along with an itemised list of the breaches. Therefore acting quickly can make a difference.
Therefore, legal advice should be obtained from the onset of the breach such that the proper mechanisms can be put in place. You can seek the following remedies:
· Make-up time: the court can order extra time to compensate.
· Changes to the order: The court might amend the arrangements to make them clearer or more practical.
· Warnings: For first-time or minor breaches, the court might issue a formal caution.
· Fines or bonds: The court can order the person to enter into a good behavior bond or pay a fine.
· Community service or jail: In severe or repeated cases, the court may impose community service or even a prison sentence.
We understand that filing a further application in the court may not be suitable for every occasion. Sometimes it is a matter of waiting and gathering sufficient information prior to making an application. Regardless, always remember to:
1. Stay calm and document everything.
2. Keep records of messages, missed handovers, or delays.
3. Try communicating respectfully. Sometimes breaches occur due to misunderstanding or miscommunication.
4. Get legal advice early.
5. Use family dispute resolution. Mediation can often fix problems without going back to court.
6. Don’t retaliate.
You may have heard the saying that two wrongs don’t make a right.
The reality of retaliation is that if you also breach the order or act in a way which is not in the best interest of the child involved, then it will damage your position significantly.
As set out previously, contravention applications can be legally technical and emotionally draining, especially in circumstances where children are involved. If you’re unsure what to do next, contact us and speak with one of our skilled family lawyers. They can help you navigate the complexities of contravention applications and also provide you with invaluable guidance and direction.
Why legal advice matters
We can help you:
· Understand whether a breach has occurred;
· Stratergise next steps;
· Prepare any court applications if needed;
· Inform the other party of the breach formally.
· Attend mediation or court hearings;
· Work toward a practical resolution that protects your rights and your family.
It is always crucial to remember that Court orders are there to provide structure and certainty during what is often a very stressful time. When a party to that structure breaks those orders, it can feel frustrating and unfair. However, there are clear legal pathways available to you in order to ensure that you are able to arrive at some resolution, whether that means encouraging compliance, changing the arrangements, or acting on the enforcement.
If you’re dealing with a breach of court orders, we’re here to help.
