Family law orders are binding on all parties regardless of whether they are made on a final basis or on an interim basis. It is a serious offence to breach an order without a reasonable excuse. If a party breaches a family law order, the other party has various options for enforcing the order or getting its terms varied if the arrangement is not working. The appropriate approach depends on the circumstances and the nature of the breach. This page deals with breaching family law orders.
Reasonable excuses for breaching family law orders
Under section 70NAE of the Family Law Act 1975, a person has a reasonable excuse for breaching an order if they breached the order because they did not understand the obligations it imposed and the court is satisfied that they ought to be excused.
A person has a reasonable excuse for breaching a parenting order if they believed the breach was necessary to protect the health and safety of a person, including the child, and the breach continued for no longer than necessary to do so.
A common situation where a party may breach a parenting order is where the order requires a child to spend overnight time with both parents, but one parent develops concerns that the other parent is exposing the child to risk while in their care. In this circumstance, the parent who holds the concerns may argue that they had a reasonable excuse to withhold the child.
In this situation, the court may agree or disagree that the parent was active protectively depending on the reasons the parent had for believing that the child was at risk in the other parent’s care, the nature of risk, how long the child was withheld for, and whether contact could have occurred in a way that mitigated the risk.
What can I do about a breach of family law orders?
If you are a party to family law orders and the other party is in breach of the orders, the action you should take depends on the circumstances.
Minor breaches
If it is a minor contravention, you can talk to the other party about it and/or ask them to take part in Family Dispute Resolution (FDR). Persistent breaches of family law orders can be a sign that the arrangement that is in place is not appropriate. If this is the case, an application can be made to vary the orders. If the parties agree about what needs to be changed, they can create and sign a Parenting Plan to alter the orders to the arrangement they want.
Section 60I and Family Dispute Resolution
Under section 60I of the Family Law Act 1975, prior to filing any family law application, parties must try to resolve their dispute through Family Dispute Resolution (FDR).
However, in some cases where orders are being breached, FDR is not appropriate or the matter is too urgent to go through mediation before an application is filed. In these cases, the court may grant an exemption from ADR.
After parties have attempted FDR, they are issued with a Section 60I Certificate, which can be filed with the court as evidence that a genuine attempt was made to resolve the dispute through ADR. If FDR has not been attempted, the applicant must file an affidavit explaining why this is the case and why an exemption should be granted. An exemption is likely to be granted are where there is a history of serious family violence or where the matter is urgent because the children in a parenting matter are in immediate danger.
Contravention applications
If you cannot resolve the situation directly with the other party or through FDR, you may want to file a Contravention Application. This Application should be accompanied by an Affidavit setting out all the evidence that supports your allegation that the order has been breached.
A valid Section 60I certificate should also be attached. IF FDR has not been attempted, you should attach an affidavit as to why an exemption should be granted.
In order for a Contravention Application to succeed, the applicant must establish on the balance of probabilities, that the breach occurred. If the court is satisfied that the other party has breached the order, what will happen depends on the following:
- The circumstances of the breach;
- The reasons for the breach;
- Whether the breach occurred once or repeatedly;
- Whether the breach was minor or major.
What will the court do about a breach?
If a court finds that family law orders have been breached, it can make any of the following orders:
- An order that the arrangements under a previous order resume;
- An order compensating a party for lost time with a child;
- An order requiring a party to attend a Parenting Program;
- An order to vary an existing order;
- An order that a party must pay some or all of the other party’s legal costs;
- An order that a party must pay some or all costs incurred by the other party as a result of the breach;
- An order that the party must pay a fine or serve a term of imprisonment.
It is always better for parties to a family law matter to sort out disputes between themselves. This is particularly the case if the court has already made final orders as it will be unwilling to change the orders unless a party can demonstrate that there has been a significant change of circumstances. It will also be unwilling to take action on a Contravention Application unless the breach alleged is found to have been serious and persistent.
If you require legal advice or assistance in relation to a family law matter, please contact Taylor Rose.
