Breaching Court Orders and Australian Family Law

A court order is a decision made by a judicial officer, such as a judge, to resolve a legal matter. A court order is a legally binding set of orders that can have serious consequences if they are not followed.

If you’ve been involved in a family law matter, or any kind of legal dispute, that has resulted in a court order, then you may be wondering what this means for you. Is it really that important that you follow these orders? What happens if you don’t? What about if the other party involved doesn’t follow these rules?

In this article, we’re going to discuss court orders, including why you may end up getting court orders, as well as the consequences of breaching a court order, examples of how orders can be breached, and what your options are if someone breaches an order that you’re involved in.

Court Orders in Australia

The legal system in Australia can be complex and difficult to understand – especially when you’re involved in a family law matter. Often these matters can be emotionally stressful, so to make sure you understand what you need to know about court orders and the consequences of breaching a court order, let’s start right at the beginning.

What can court orders be made for?

In family law matters, court orders are usually made regarding parenting or financial matters:

Parenting Orders:

Parenting orders are those that are made about parenting arrangements for a child/ren and could include information such as where and who the child will live with, how the child and parents will communicate and various other care and welfare arrangements.

When making decision regarding a parenting order, the priority of the court is how these decisions will affect the child. This is known as the best interest of the child and means that the courts need to take into consideration two primary factors when making the decisions. These factors are:

• • “the benefit to the child of having a meaningful relationship with both of the child’s parents; and

• • the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”

Financial Orders

This type of order is usually made in regard to financial matters like how property and assets will be divided after a separation, the transferring or selling of property and financial support or spousal maintenance arrangements.

When a court is making a decision about financial matters, the aim is to ensure that the terms of the arrangements are “just and equitable”.

How can court orders be breached?

Court orders can be breached in a variety of ways, and as we mentioned above these breaches can be either deliberate or unintentional. A person may actively decide against complying with the order, not make any reasonable attempts to comply with it or they may not even realise that their actions means that they are going against the court order.

In cases where someone may have unintentionally breached the court order, this may be seen as the person having a “reasonable excuse” for non-compliance and this may not attract any form of penalty or punishment. We will discuss the concept of reasonable excuses further on in this article.

A person could also breach a court order if they in some way prevented a person from complying with the court order.

There are many different ways that a court order could be breached as it is dependent on the unique circumstances of the order. An example of a court order breach is if the orders are for parenting and the parents are both able to spend time with the child as part of the order, however one parent is preventing the child from spending time with the other parent. In this example, unless there is a reasonable excuse for doing so, such as spending time with the parent will put the safety of the child at risk, then the parent could face serious consequences for breaching the order.

 

What are the consequences of breaching a court order?

When someone breaches a court order, there can only be consequences or penalties if the other person involved in with the order files a non-compliance contravention application. Contravention is the legal term for breach.

This application involves also filing an affidavit that details how the person has not complied with the orders, as well as documentation, such as family dispute resolution certificate, to show that you have attempted resolve the non-compliance issue.

Attempting family dispute resolution before applying to the court is mandatory, unless your circumstances are urgent, such as in cases of abuse and/or family violence.

Once a contravention application is filed, the courts will review and unless there was a reasonable excuse for the breach, the outcome could involve the non-compliant party being penalised. These penalties could include:

• • Orders that require the person who has breached the order to participate in programs that could help to avoid future conflict, such as a post separation parenting program or counselling;

• • Orders that compensate the other parent for lost time with the child;

• • Orders for community work;

• • Orders to pay the legal costs of the other person;

• • Paying a fine for the breach

For a major breach or serious offence, this could also result in a jail term.

Is there any leeway when it comes to breaching a court order?

As we touched on above, if a party has breached a court order but has a reasonable excuse for doing so, the breach may not result in any legal consequences for the person.

In the Family Law Act 1975 (Section 70NAE), what could be accepted as a reasonable excuse by the court includes:

• • The person breaching the order did not understand their obligations under the order and were genuinely unaware that their actions were a breach of the order;

• • The person who breached the order believed that their actions were required to protect the health and safety of a person or child; or

• • The actions causing the breach did not continue longer than was necessary to protect the health and safety of the person.

It is possible that the court may be more lenient if the person breaching the order has never done so before. The court will review each situation individually to determine where there has been a minor or major breach, rather than have a blanket rule.

What should you do if you’ve been accused of breaching a court order?

We recommend seeking legal advice if you’ve been accused with the breach of a court order. A family lawyer can help you understand whether your actions are in fact a breach of the order, whether you have a reasonable excuse for the breach, advise you of your options and raise a suitable defence for you if required.

As we mentioned earlier, when a court order breach occurs, particularly one that involves children, this can cause stress and panic for the individuals involved. A family lawyer can help you to understand your situation from a legal perspective and make sure that you know your options and can make informed decisions.