Mid Mountains Legal Blog

Non Compliance with Federal Circuit and Family Court Orders

Anthony Steel

Family court orders non compliance (also known as breach of family court orders) is a serious offence.

What is non compliance of Family Court orders?

A family court order is legally binding on all parties involved. Family court orders non compliance occurs when a party has contravened a court order. The action of offending or breaking a law is known as contravention.

Family Court Orders non compliance: who breaches Court Orders?

Federal Circuit and Family Court of Australia (FCFCOA) orders may be parenting orders or financial orders (also known as property orders). Both types of orders are legally binding on all parties to the orders.

What is a parenting order?

Parenting orders usually deal with parenting arrangements for a child including:

  1. the allocation of parental responsibility between parties to the orders;
  2. the child’s primary carer and place of residence;
  3. time the child spends with each parent, and other important relatives;
  4. any conditions attached to communication between the child and the non-residential parent (the parent the child does not live with); and
  5. all other matters concerning a child’s care, development and welfare.

What is a financial order?

Financial orders deal with the division of money and assets between parties to a family law property settlement, spousal maintenance, and child support payments.

What are the consequences of non compliance of Family Court orders

A party who does not comply with the conditions of an order is in breach of that order. Non compliance with family courts orders can lead to severe penalties if the court finds that the breach occurred in the absence of a reasonable excuse.

Parties can breach family courts’ orders in different ways: they may intentionally choose to not comply with the order, or make no attempt to comply with the orders, or prevent someone else from following the court order.

If a party has a reasonable excuse to not comply with the order, there will be no legal consequences.

“Reasonable excuses” acceptable to the family courts are listed under section 70NAE of the Family Law Act (1975). These include:

  1. The person genuinely failed to understand the court order and obligations.
  2. The person committing the breach of order believed that non-compliance will actually protect the health and safety of a child or person involved.
  3. The breach of order, or contravention, did not last longer than was necessary to protect the safety of the child, or the person himself/herself.

If the FCFCOA finds that an order was contravened without a reasonable excuse, it will impose penalties.

Family court orders non compliance can have serious consequences. The Family Law Act (1975) (sec 70NFB) sets out the consequences of breaching a court order, including:

  1. An order that the party who committed the breach pay all costs for the other party;
  2. An order compensating a party for time they did not spend with the child;
  3. a fine on the non-complying party; and
  4. Up to 12 months imprisonment in cases of serious breach of order.

What can you do if your former partner has breached a Family Court Order?

If a party has failed to comply with a court order, it has most likely substantially inconvenienced  the other party.

Usually, if a party breaches a parenting order, the aggrieved party faces loss –often in the form of loss of time that they could have spent with their child.

If a party has breached a court order, an aggrieved party must file a contravention application along with a sworn or affirmed affidavit.

If the aggrieved party does not want the other party to be punished or penalised, but wants only for the arrangements of the earlier court order to resume, they must also file an Application – Enforcement.

What now?

Contact us if you or someone you know needs advice or representation regarding a contravention of family court orders by the other party.

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