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 is a court order?
A court order is the decision or judgement made by a judge or other judicial officer regarding a legal matter. The order essentially defines the legal relationship between the parties involved in the matter and the orders are legally binding.
A court order is usually made after a hearing or trial, but they can also be made after parties have come to their own private agreement and wish to legally formalise – these are known as consent orders.
There are a few different types of court orders, and these include:
- Final orders: these orders bring a legal matter to a close.
- Interlocutory orders: these orders are temporary and usually made in cases that are urgent or particularly complex. Interlocutory orders are usually active until final orders can be made.
- Consent orders: if parties can come to an agreement, rather than rely on each other to hold up their end of the agreement, it can be made legally binding by applying for a consent order.
Court orders can be made about a number of different things but when it comes to family law legal matters, they are usually in relation to parenting or financial issues.
Before applying to the court for orders the parties involved may need to go through other dispute resolution methods, such as mediation or family dispute resolution. Applying to the courts for orders – unless applying for consent orders – is usually a last resort.
What can court orders be made for?
In family law matters, court orders are usually made regarding parenting or financial matters:
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.”
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”.
Who can apply for family court orders?
The person/people who can apply for a court order depends on the type of order that is being applied for.
For parenting orders, a person who is concerned with the care, welfare and development of the child the order is in relation to, can apply for a parenting order. This could include relatives and grandparents, as well as the parents of the child. Parenting orders can be made at any time.
For financial orders, these are usually applied for by people who have either been married or in a de facto relationship that has broken down. For married couples, the orders can be applied for during the separation before the divorce process has been completed or if a divorce has been finalised, financial orders must be applied for within 12 months of the divorce being finalised. After this, permission from the court is required before you can apply for financial orders. For de facto couples, applying for financial orders must be done within two years of the separation date, otherwise, orders applied for after this date require the court’s permission too.
What does it mean to breach a court order?
Breaching a court order means that a person has failed to comply with the rules set out in the order. A breach can be deliberate or unintentional.
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 I do if someone has breached a court order?
If you think a breach of an order has occurred, you will need to file the contravention application for non-compliance and also provide the following information:
- Affidavit that outlines details of the breach occurred; and
- Proof that family dispute resolution has occurred, such as a certificate from a family dispute resolution practitioner. If you’re unable to do family dispute resolution or the situation is urgent, then you may need to provide an affidavit with details stating this.
Before filing an application, we highly recommend seeking legal advice from a family lawyer. Family law is complex and when a breach does occur or is believed to have occurred, this can cause a lot of stress for all parties. A family lawyer can help you understand whether a breach has occurred and make sure you know all of your options.
If you do not want the other party to be penalised for the breach of the order but rather that the arrangements of the order are followed and remain in place, you can also submit an application for enforcement of the order to the court.
In particularly urgent cases or when you’re only seeking to enforce the current orders, legal advice is still recommended and extremely valuable as a lawyer can help you understand all of your options and help to arrange all required information for your contravention application.
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.
Have you experienced a family law court order breach?
Whether you’ve been accused of breaching a court order or you believe that a breach has occurred, here at Unified Lawyers we’re here to help you. We’re a leading family law firm offering assistance in all areas of family law Australia-wide.
Discuss your situation and find the right outcome for you with us today. Book in your free consultation by calling us on 1300 667 461 or using the button below.