Formalised orders through the Court are legally binding, and as a result it is essential that parties to the orders abide by these terms to avoid what the legal framework refers to as ‘contravention’. When a party breaches a parenting Court order, this is considered a significant offence in Australian family law, and as a result will lead to severe consequences. If you suspect or know that your ex-partner has breached Court orders in place, this article will assist you in navigating the next steps to take.
How is an Order Contravened?
The Federal Circuit and Family Court of Australia (‘FCFCOA’) stipulate that an order is contravened if the person whom the order is applied intentionally fails to comply with the other, or they make no reasonable attempt to comply with the order. A reasonable attempt with compliance can be defined as taking all reasonable steps to comply with the order.
Furthermore, a person who the order does not apply to specifically can also contravene a order if they intentionally prevent compliance with the order by a person who is bound by it or they aid or abet a contravention of the order by a person who is bound by it.
There are a number of common ways where family orders can be breached. This can include consistent late returns of the child from visitation, making decisions in relation to the long-term welfare of the children such as education or healthcare without seeking agreement from the other party, or relocation or travel without proper notification.
Reasonable excuse for contravening an order
The family court has discretion to consider whether the party that contravened an order had a reasonable excuse for doing so. The following are examples of excuses that may satisfy the Court:
- The person did not understand the obligations imposed by the order
- The person reasonably believed that the contravention was necessary in protecting the health and safety of a person including themselves, or the child involved and such contravention did not last longer than necessary to protect those factors of health and safety.
What if I think my Ex-Partner has Breached a Court Order?
If you believe that a party to your court orders has contravened the order, you should seek legal advice. Our lawyers at Ramsden Family Law can assist you with this.
If you suspect the contravention of orders, ensure that you take documentation of everything including the details of specific incidents. It may be of assistance to attempt reasonable communication before escalating to legal action if it is safe to do so as breaches may occur due to misunderstandings.
If you think that legal action is needed, you should seek to file an application with the FCFCOA for alleging a breach of a parenting or other child-related order.
Additionally, you should seek to file an application with the FCFCOA for alleging a breach of a parenting or other child-related order. When doing so, you will need to provide an affidavit outlining details of the beach occurred and proof that family dispute resolution has occurred such as a certificate that mediation has been completed (unless you meet exemption criteria).
If you do not wish for the penalisation of the other party for the contravention of the order but instead for the enforcement of the orders and that they continue to remain in place, the court provides an application for enforcement of the order to the court.
Only certain issues can be resolved by way of an application for enforcement, so it is important you seek legal advice on whether an application contravention or application enforcement is more appropriate to your circumstances.
National Contravention List
An application for the contravention of court orders within the FCFCOA from 2021, will be dealt through the National Contravention List. The FCFCOA expects that all parties comply with orders of the court, and thus, the introduction of the National Contravention List provides a system where alleged breaches of court orders are taken seriously through an efficient, safe and cost-effective manner by the Court.
The key objectives of the National Contravention List include:
- Applications to be given a first return date within 14 days of filing
- Ensuring compliance with court orders by all parties
- Imposing appropriate penalties or sanctions where a contravention has been proved and there has been a failure to demonstrate a reasonable excuse for non-compliance
Saldo & Tindall [2013] FamCA 951
This is an example of a family law case where the Father was able to prove that the Mother had breached court orders and there was a failure to exemplify reasonable excuse for contravention.
This case saw the Father file an Application-Contravention alleging numerous contraventions of interim parenting orders by the mother. This breaches included the Mother’s failure to inform the father of her contact details in writing. She failed to follow changeover orders and deliver the child to the Father on 18 occasions, resulting in prevention of the child spending time with the father. The Mother also failed to enrol the child at the designated child contact centre stipulated in the orders which further prevented the Father’s access to their daughter.
As a result, the alleged breaches of court orders were all found proven and the mother failed to prove existence of reasonable excuse. The Family Court imposed two years of good behaviour bonds on the Mother.
RAMSDEN FAMILY LAW – HOW WE CAN HELP
If you face such a situation, consult our experienced family law specialists at Ramsden Family Law. We are here to provide you with the necessary legal support and guidance to protect your family’s best interests during this challenging time. Empathy and understanding are crucial to helping clients through these difficult situations.
Our team of dedicated family law specialists brings extensive experience to the table. We understand the nuances of family law cases involving substance abuse and criminal elements. We offer comprehensive legal support tailored to your specific situation. Whether you’re dealing with parenting disputes, family violence issues, or custody battles, we have the expertise to guide you.
We recognise the emotional and personal challenges you may face in these situations. Our approach is rooted in empathy, ensuring you receive the support you need during difficult times. Our primary goal is to safeguard your family’s well-being and best interests. We work diligently to achieve outcomes that prioritise your family’s future.
Every family law case is unique. We provide customised solutions and legal strategies tailored to your specific circumstances. Ramsden Family Law has a strong track record of successfully handling family law cases, including those involving substance abuse issues.
If you’re facing family law challenges related to substance abuse or criminal law, don’t hesitate to contact Ramsden Family Law. Your family’s future is our top priority, and we’re here to provide the guidance and support you need.
The content of this article is intended to provide general guidance to the subject matter and must not be relied on as legal advice. Specific advice should be sought about your circumstances.
