What happens if Court Orders are not Followed?

What happens if Court Orders are not Followed?

By Kayla Curtis

· Read time: 10 minutes

Have you ever wondered what would happen if court orders are not followed? In family law matters, court orders are put in place to ensure that the outcome of a court hearing is followed, and following these orders is mandatory.

Sometimes a party may fail to comply with a court order, which can lead to serious consequences. In this blog article, we will explore what happens when court orders are not followed, and the potential consequences that parties may face.

What is a family court order? 

Court orders are a set of directions that must be followed by the parties named on the order. These directions are the result of the Court’s deliberations and considerations in respect to your matter and must be given respect and your full compliance. 

Court orders are made because the parties to the matter were unable to come to an agreement on the issues they were facing and required the Court’s intervention to move forward. 

There are two main types of family court orders: a parenting order and a financial order. 

Understanding your obligations in respect to your Court orders is fundamental in following the detailed directions you are given by the Court.

#1 Parenting Order

A parenting order concerns orders regarding a child’s welfare, safety and the parenting arrangements of a child. This can cover details such as: 

  • where the child will live
  • what activities they will undertake with which parent 
  • how much time will be spent with each parent
  • travel arrangements 

Parenting orders can be of varying levels of detail and complexity. This is determined by what the couple eventually reach consensus on.

An example of a Parenting Order

An generalised example of Court orders may include: 

  1. Parent A is to have the children weekly from 9:00 am Saturdays to 4:30 pm Tuesdays, with change over occurring at Mcdonalds Redcliff NSW 2222,
  2. Parent B is to have the children weekly from 4:30 pm Tuesdays to 9:00 am Saturdays, with change over occurring at Mcdonalds Redcliff NSW 2222. 
  3. Unless otherwise agreed upon by the parties in writing ……

The wording used in number 3 above is important, as it gives the parties the ability to negotiate and adapt the orders on agreement to fit into the fluidity of life.

#2 Financial Order

Financial orders relate to the separation of assets that occur after separation. This will involve parties disclosing their financial assets and debts, and the Court deciding what is just and equitable in all the circumstances of the case. 

These orders can also cover issues regarding spousal maintenance or de facto maintenance. 

Situations Where Family Court Orders Are Not Being Followed

A family order can be breached for a number of different reasons. These include: 

  • A party intentionally violating an order
  • A party making no reasonable attempts to comply with the order
  • A party helped another individual breach the order 
  • A party prevented another individual from complying with the order 

Standard of proof for contravention of court orders

In Australian family law, the standard of proof for contravention of court orders is the balance of probabilities. This means that the court must be satisfied that it is more probable than not that the contravention has occurred. 

The standard of proof is lower than the criminal standard of beyond a reasonable doubt, which is used in criminal cases. It is important to note that if a party is found to have contravened a court order, they may face severe consequences, including fines, imprisonment, and even a change in custody arrangements. 

However, it’s essential to understand that a person cannot be found guilty of a contravention without being given the opportunity to defend themselves. In such cases, it’s crucial to seek legal advice and support from a qualified family lawyer who can guide you through the process and ensure that your rights and interests are protected. 

Is There A Good Reason For a Family Court Order to not be followed?

Just because a party to the Court orders has or believes they have a “good reason” for contravening the orders, doesn’t mean that they have not “breached” them. 

A good reason may only provide context as to the circumstances surrounding the contravention and does not waive the party’s accountability for it.

Examples of a “reasonable excuse” may include (but are not limited to): 

  1. Not understanding what you had to do under the orders. Usually, your lawyer will explain in detail what your obligations are under the orders given by the Court. However, for parties who are mainly “self represented” , understanding what you are required to do under the Court’s orders can be confusing and stressful. 
  2. That the length of time that you were in breach of the orders was not longer than reasonably necessary. 
  3. That you considered your actions to contravene the orders necessary to protect the health and safety of your child or another person, 
  4. If the car has broken down or there has been an accident delaying the child from being handed over. This is an excuse which the Court will consider as a “one off”. 

However, there are times when the Court will reject an excuse. This can happen when:

  1. You do not agree with an order, 
  2. Your child does not want to spend time with the other parent. You are obligated to actively encourage your child to spend time with the other parent. If this situation arises, it is important to receive advice. 
  3. Your reasons are personal in nature. This can include when one parent gets a new partner and the other parent does not like them. 

What to do when someone contravenes a court order

Non-compliance or contravention of Court orders may result in negative consequences. These consequences vary and are decided on by the Courts on a case by case basis. Events that may follow a contravention include (but are not limited to): 

  1. A contravention application filed in the courts by the other party,  
  2. Costs order put against you to cover the above action, 
  3. Further Court attendances and fees
  4. Fines, 
  5. Potential imprisonment
  6. Changes to the existing orders that may be detrimental to you. 

The Court looks unfavourably on individuals who repeatedly have no valid excuse for contravening orders and will imply punishments in order to deter this type of behaviour. 

What if my circumstances have changed?

If you are unhappy with the Orders made by the Court, it is best to seek the advice of a qualified lawyer. There are certain avenues that may be worth your consideration, such as an application to appeal or an application to vary the Orders. 

Appealing or varying the Orders may need to occur when (but not limited to):

  • An agreement being reached between the parties due to external circumstances (however, most Orders allow for variations if both parties agree) 
  • Changes in the circumstances for one party, making the orders unsustainable, or
  • Breaches to the existing orders. 

What is defined as a “reasonable excuse”?

The Court will find that there has been a “reasonable excuse” for breaching a parenting order if: 

  • The party has genuinely misunderstood their obligations under the parenting order
  • The party reasonably believed that it was necessary to breach the order to protect the safety and health of the child, parent or another person
  • The act which contravened the order was not longer than what was reasonably necessary to protect such individuals

If no reasonable excuse is found, the Court can decide to impose a penalty upon the breaching party. 

There are a wide range of different penalties, with a common, less serious remedy being ordering a party to attend a post-separation parenting program. For extremely serious breaches, the Court has discretion to impose a sentence of imprisonment. 

For less serious breaches, penalties may include a fine. The Court can also require that a new parenting order is made which satisfies the interests of the non-breaching party better. 

The penalty will be determined on a case by case basis and depend on the particular circumstances. 

What To Do When A Parenting Order Is Breached

Generally, the party who is trying to attempt that a breach has occurred will have to provide the following documents in Court: 

  • Their contravention application
  • A supporting affidavit 
  • A certificate from a registered family dispute resolution practitioner, or an affidavit exempting them from having to provide this certificate

Specialist legal advice should be sought as to the best way to approach the breaching of a parenting order. Some strategic consideration needs to take place as to how and when to attempt to enforce such breaches – some breaches are inconsequential, while others may be, for example, consistent minor breaches which have the effect of causing significant agitation over time. 

What If The Other Parent Takes Our Child Without Permission?

In circumstances where the breach relates to the child not being returned to a parent, a Court can make a recovery order. This will empower the Police Force of the relevant state or territory to return your child to you. 

See our articles here on what to do if your ex-partner takes a child overseas without permission, and adding your child to the airport watchlist

Location and Recovery Orders

Location and recovery orders in Australian family law are legal mechanisms that help locate and recover children who have been unlawfully taken or retained by a parent or caregiver. These orders require the person to disclose the whereabouts of the child or authorise the police to recover and return the child to their lawful parent or guardian.

To obtain a location or recovery order, an applicant must demonstrate the child has been unlawfully taken or retained and that there is a real risk of harm or the child may be taken out of the country. Enforcing court orders involving children can be complex and emotionally charged, so it’s essential to seek legal advice and support from a qualified family lawyer. With the right legal support, location and recovery orders can help ensure children are returned safely to their lawful parent or guardian.

Conclusion

In family law matters, court orders are made to ensure that the outcome of the court hearing is followed. It is crucial to understand that following these orders is mandatory, and a failure to comply can lead to serious consequences. 

While there may be a reasonable excuse for contravening the orders, this does not remove liability for the breach. Not all excuses are reasonable, and breaching court orders can result in fines, imprisonment, or even a change in custody arrangements. 

If a breach of the orders has occurred in your matter, it’s crucial to contact our family lawyers immediately to discuss your options and steps are taken to rectify the situation. 

Our team has extensive experience in handling family law matters and can provide you with the guidance and support you need. Book a consult here.

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