BREACHING FAMILY COURT ORDERS
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Breaching family court orders is never a desirable move and it can result in severe consequences for the breaching party. In Australia, parenting orders are taken very seriously as they are specifically put in place to protect the health, safety, and well-being of children and families. Family Law is a complicated and difficult process to go through and it is not a decision that should be made lightly. When you make the decision to take your matter to court, you are effectively saying that you have exhausted all non-litigation options for settling the matter.
Have Family Court Orders but I Have Breached Them, What Should I Do?
Breaching family court orders is a serious thing however the situation needs to be put in perspective. There is a huge difference between major and minor breaches and the consequences for each are drastically different. Let’s take a look at some examples:
As you can see from the two above examples, there is a major difference between the breaches. One of the breaches is accidental and at the end of the day does not affect the relationship the children have with either parent. The second example however makes a huge change to the children’s lives and it cuts one of the parents from their lives completely.
Let’s take a look at what options are available to the parties in the above scenarios.
Options For If A Breach Of Orders Occurs
Whenever a breach of court orders occurs, it is important to look at the matter logically. Is the breach intentional or accidental and could it be considered that the individual had a “reasonable excuse”. The Family Law Act 1975 dictates under section 70NAE what constitutes a reasonable excuse in relation to family law matters however, it is always prudent to seek legal advice before making a determination on your own.
If we look at the first example scenario, the breach appears to be accidental and the breach was ultimately rectified because Jane allowed the children to call Paul as soon as she realized she had missed the call. Jane did not intentionally interfere with the relationship between Paul and the children and she did not damage the relationship.
If we look at the second example, however, Caleb was aware of the breach before he chose to withhold the children from Veronica and he chose to do so deliberately. Caleb has purposefully interfered with the relationship between Veronica and the children.
The standard rectification process for a breach of court orders is to file a contravention application through the Family Court of Australia. This type of court application is designed to make a finding of fact about whether the breach did or did not occur. This is not a process that should be entered into lightly however and seeking legal advice should always be your first step. Family law matters are both complicated and emotional and not only do they take time and patience but they incur legal costs which can be extreme.
There are a couple of options that you can consider before going down this path. Family dispute resolution services exist to enable parties to work-family disputes out without the need for litigation. You may be able to use lawyer-assisted forms of dispute resolution (whether they be private or legal aid assisted) or there are community services who will aid with these processes. For more minor breaches such as example 1 above, this may be the more practical approach to the situation given the delay people find with litigation. Litigation is never a quick fix solution and if you are looking for an immediate resolution to avoid problems festering then dispute resolution is the more appropriate avenue. It is important to remember, however, that for the best chance at resolving things through mediation, both parties need to make a reasonable attempt.
A more outright non-compliance issue however as we see above in example 2, may require the court processes for resolution. When one party blatantly and purposefully contravenes court orders (interim or final orders) or consent orders then the problem is often deeper than what mediation can resolve. Contravention proceedings are not to be taken lightly however as there are substantial costs associated which are often not legal aid funded.
In the event your situation is one like example 2 however it may even go further, whether one party has removed the children from the state or country, a recovery order may be a more appropriate option. A recovery order allows the court to order that the Australian Federal Police obtain the children and return them to their other parent or state of residence. This is an extreme option that is available for serious situations of abduction or absconding with children. You should always seek legal advice before taking drastic measures as it can unravel a litany of processes that are both stressful and tricky to navigate.
I Have Existing Orders For My Children But I Am Concerned For Their Safety.
If you find yourself in the situation where you are concerned for the safety of the children either in the care of their other parent or the care of a family member, then there are options for you to monitor that contact. Family violence or child abuse for example would be reasons to stop contact from occurring because it poses a direct risk to the children.
The best interests of the children are always a paramount consideration for any court and if there is a risk posed to the children then the goal posts for what is considered in their best interests changes. Domestic violence is a complicated situation and the safety of a person, be that the child or either of the parties, is the most important consideration for the family law court.
If you have court orders in place already however, you will need to file a court application immediately so that contact arrangements can be modified appropriately. If you do not then you can suffer consequences for contravening the orders in place.
What Is The Process Of Taking My Matter Back To Court?
If you want to take your matter back to court the the first step is to get advice from an expert family lawyer. The Federal Circuit Court/Family Court requires that court applications be filed along with a supporting affidavit explaining the basis for why the application is being made. If the court finds that they accept your version of events, taking into account considerations under the Family Law Act 1975, then new family law orders can put in place based on your evidence.
If you are the party taking the application to court then you will be considered to be the applicant and your ex-partner (or other party to the proceedings) will be classed as the respondent in family law proceedings.
What Are My Chances Of Success If I Take My Matter Back To Court?
If you take your matter back to court, you need to be sure that you have the evidence to back up allegations or claims. This may be in the form of photographs, affidavit/eye witness evidence, bank statements, etc, it really depends what you are trying to prove as to what you will require.
For example, you may have evidence of violence because you have had a family violence order issued for your protection. Alternatively, you may be seeking a change to the parental responsibility order because the other parent cannot be trusted to make sound medical decisions on behalf of your children. For this type of claim you may have evidence that your ex partner has failed to seek medical treatment your children when they have been sick or injured or that he has made medical decisions for them without consultation with you that could have had dangerous results.
Basically, the balance of probabilities needs to be in your favor that you will be able to prove your allegations. This is not a situation to be taken lightly either as court battles often fracture family relationships.
The above is general legal information and should not be considered legal advice. You should speak with one of our family lawyers for legal advice tailored to your specific legal matter. The courts deal with matters on a case by case basis. It should also be noted that there may be court delays due to COVID-19.
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Frequently Asked Questions.
No, the court cannot order your ex-partner to pay child support because child support is a separate agency. The Child Support agency manage child support claims and take care of collecting payments. The court does not get involved in child support situations because they are unlikely to have the necessary information in front of them to decide at what rate child support should be paid as it is a complex algorithm based on earnings and expenses.
In some circumstances the court can order that you or your ex-partner engage with parenting programs or post-separation programs. This is usually ordered if it is identified that there is high conflict in your parenting relationship and that this may be negatively affecting your children. The court will make a referral to a service or organisation who run specific programs or they can make a more generalized order that you engage in therapeutic services as directed by a psychologist.
Yes, it is possible to breach a parenting plan however, it is not a situation that can be taken to court for contravention proceedings. A parenting plan is an agreement but it is non-binding and the court is unable to enforce a parenting plan. It is more likely that the consequence for breaching a parenting plan is that the other party will apply to the court to have orders made.
Yes, the court will make orders regarding property matters however this is a different aspect of family law. It is involves the same courts and similar procedures however the elements are different.
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