BREACHING FAMILY COURT ORDERS

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.