In accordance with the Australian family law system, the Federal Circuit and Family Court of Australia can issue court orders.
A court order is essentially a legally binding directive that helps to resolve disputes between parties and allow them to move forward with their lives.
When court orders are issued in the family law system, it’s usually due to the parties involved in a family law dispute being unable to resolve a dispute.
While family court orders are legally binding, they are not always followed. So, what happens when such an order is disregarded or defied?
Understanding the repercussions of such actions and how the Australian legal system enforces its mandates is crucial.
In this article, we are going to discuss the consequences of breaching a court order, as well as how orders can be enforced.
What exactly are Australian family law court orders?
In Australia’s judicial system, family law occupies a distinct and vital space.
Designed to address personal and intimate matters that arise when there is a breakdown of the family relationship, like divorce, child custody, and property disputes, the framework upholds the rights and best interests of all involved parties.
One way that the rights and best interests of the people involved can be upheld is by having court orders put in place. A court order is a legally binding decree issued by a judicial officer of the Federal Circuit and Family Court of Australia.
The primary objective is to clarify the responsibilities and rights of the individuals involved in a particular family matter. For instance, after a divorce, where will the children live? How often can the other parent visit? How should assets be divided?
Court orders can answer such pressing questions, providing a roadmap for post-separation life.
Court orders, whether they relate to family court orders for child custody or financial matters, serve as the backbone for equitable resolutions. They stem from thorough evaluations, evidence, and sometimes, sessions of family dispute resolution. Their existence ensures that parties don’t have to rely on verbal agreements or memory, thereby preventing future disputes. They’re documented, clear, and enforceable.
The nature of these orders varies based on individual cases and their complexities. They can be temporary (interim) or final. While parenting orders determine how parents will care for their children, consent orders are written agreements approved by a court. Additionally, these orders can be modified, but only when a significant change in circumstances is proven.
The issuance and adherence to court orders are in strict alignment with the provisions of the Family Law Act 1975 (Cth). This legislation underscores the importance of protecting children, ensuring their well-being, and facilitating cooperative parenting post-separation. It’s this act that provides the legal foundations upon which court orders are constructed.
How can family law court orders be breached?
Navigating the world of family law and its court orders can be complex. Breaches, or contraventions, of these orders can occur for various reasons and in some cases, breaches are accidental.
Understanding the nature and implications of different types of breaches is essential for both parties involved and legal professionals assisting them.
This is the most blatant form of contravention. Deliberate defiance occurs when an individual knowingly and willfully disobeys a court order without any justifiable reason.
Such actions are often taken with the full understanding that they go against the order’s directives.
An example of this type of breach: A parent, despite having the court order that allows only weekend visitation, might take the child on a weekday intentionally, without any prior agreement or emergency.
Not all breaches arise from a place of malice. Sometimes, parties might genuinely misunderstand their obligations or the specifics outlined in the court order.
Ambiguities in language or misinterpretations can lead to unintentional contraventions.
An example of this type of breach: An order might specify certain conditions for spending time with a child, like “during daylight hours.” A parent might interpret this as any time before sunset, while the other parent might see it as before 5 pm.
There are situations where circumstances beyond one’s control result in a breach. Such contraventions, driven by unforeseen events or emergencies, aren’t necessarily reflective of an intent to defy the court.
An example of this type of breach: A parent might be late returning a child due to unforeseen traffic congestion or a medical emergency. While this is technically a breach of the parenting order, it occurred due to uncontrollable circumstances.
It’s essential to note that while the reasons for breaches can vary, the Family Court takes all contraventions seriously.
Whether an action stemmed from deliberate defiance or genuine misunderstanding, it’s crucial to seek legal advice to understand potential consequences and remedies.
Consequences when there is a breach of court orders
When a breach of a family law court order occurs, the repercussions can be multi-faceted.
Less serious contraventions might result in mandated family dispute resolution sessions, while more serious contraventions can have legal ramifications. These might include:
- Legal Penalties: Fines, community work, or even a prison sentence in extreme cases.
- Child Custody Implications: Breaching court orders related to children can lead to altered parenting arrangements.
- Legal Costs: The party in breach might be ordered to pay the other party’s legal expenses.
- Furthermore, the court can adjust the parenting order to compensate for the time lost due to the breach, ensuring that children’s best interests are always prioritised.
Breaching a court order is serious, however, depending on the severity and cause of the breach, it might be beneficial to take a step back and evaluate the situation. While the legal machinery can address breaches, it’s sometimes more conducive to approach the situation with understanding and open communication. Ask yourself:
- Was the breach a one-off incident or part of a pattern?
- Were there genuine reasons or unforeseen circumstances behind the breach?
- What’s the best outcome for all parties involved, especially children?
When a breach occurs legal advice is invaluable in understanding potential repercussions and one’s rights. However, it’s equally crucial to reflect on whether pursuing legal remedies is always the best route, especially for unintentional breaches. Legal proceedings can be emotionally taxing and may strain relationships further.
In many cases, if the breach isn’t deliberate, open dialogue and mediation might be more effective than legal intervention. This approach not only saves time and potential legal costs but also preserves the relationship dynamics, ensuring a more harmonious co-parenting journey.
Every breach, its reasons, and subsequent actions should be assessed on a case-by-case basis. The family law system has been developed to ensure justice and revolves around compassion, understanding, and the best interests of the child and balancing legal actions with human understanding can often lead to the best outcomes.
How Australian Family Law Court Orders are Enforced
We touched on this slightly above, but when there’s a suspected breach, the concerned party can lodge a contravention application in the Court. This process might involve:
Family Dispute Resolution (FDR)
Before any legal action, parties are often required to attempt resolution through FDR. A family dispute resolution certificate is typically issued if matters aren’t resolved.
A neutral third-party helps address the breach and find an amicable solution.
If resolution attempts fail, the matter can escalate to the Court. The Court then determines whether there was a breach and, if so, its severity. Based on these findings, the court decides on suitable penalties.
As part of the review process of breach, the Court will determine whether there was a ‘reasonable excuse’ for the breach.
A reasonable excuse implies that the person responsible for the breach had valid reasons, which made it impractical or unreasonable to comply with the order at that specific time.
For a reason to qualify as a ‘reasonable excuse’, it typically needs to satisfy certain criteria:
- Genuine Belief: The person believed that the actions taken were necessary to protect the health and safety of a child. This is especially considered in scenarios involving suspicions of child abuse or family violence.
- Unforeseen Circumstances: Events outside one’s control, like medical emergencies or sudden changes in circumstances, can provide a valid excuse for non-compliance.
- Lack of Knowledge: In some cases, the person might not have been aware of the order or its specifics.
However, it’s crucial to remember that merely having a reason does not automatically qualify it as a ‘reasonable excuse’. The court will consider the entire context, weighing factors like the nature of the breach, its frequency, and the reasons provided.
Has someone breached a court order?
The Australian family law system emphasises the importance of abiding by court orders. Breaching court orders isn’t taken lightly, and the consequences can be severe. If you’re unsure about your obligations under a court order or believe you might risk contravention, it’s always recommended to seek legal advice.
At Clarity Lawyers, we can help you. Our family law services are available Australia-wide. Call us today on 02 4082 6828.