How do you contravene a Court Order?
A person bound by the order is taken to have contravened an order if he or she has:
- intentionally failed to comply with the order
- madeno reasonable attempt to comply with the order
otherwise—he or she has:
- intentionally prevented compliance with the order by a person who is bound by it
- aided or abetted a contravention of the order by a person who is bound by it
If you are not complying with or are violating Court Orders, you are in contravention or contravening them. Essentially you are bound by the terms of those Orders regardless of your situation. However, if your situation changes, you can go back to Court to Court to change them. In some situations, you can change the Orders with the other party’s agreement, but you should still check to see if you can do that under the Orders and how to go about it.
We hear the anguish and desperation in those words, unfortunately. Court Orders must always be complied with and there are consequences when people disobey them and challenge the authority of the Court. The Family Law Act 1975 (Cth) gives power to the Court to make Orders and the power to punish a person for disobeying its Orders.
What about Parenting Orders?
Parenting orders may be subject to any subsequent
parenting plan. This means that an action that would otherwise contravene a
parenting order may not be a contravention, because of a subsequent inconsistent
parenting plan. Whether this is the case or not depends on the terms of the
parenting orders in place.
Standard of proof
A person alleging contravention only must prove the facts on the balance of probabilities.
What happens if a person contravenes Court Orders?
If the Court determines that a person has contravened a Court Order, the Court may punish the person. The purpose of punishment is to protect the administration of justice by demonstrating that the Court’s orders will be enforced. The Family Court takes the contravention of its orders by people very seriously. Some of the punishments can include the court issuing a fine or imposing a term of imprisonment or making a cost Order against the contravening party. Sometimes, the Court can impose both forms of punishment where circumstances permit.
This power to deal with issues of contempt is extensive and is exercised at the Court’s discretion (i.e. as it sees fit) having regard to the facts of the particular case, without any specific legislative or common law guidelines. There is also no limit imposed on the Court regarding the length of the sentence of imprisonment which it may impose. As a result of this power being almost limitless, the Court has taken the view that its discretion to impose a penalty for contravention must be exercised very carefully.
The concept of retribution or punishment
The usual purpose of contempt of Court proceedings is to persuade a disobedient party to comply with whatever order(s) they have breached. However, it is recognised that sometimes punishment is required to ensure that the Court system is honoured. If Court orders were simply not complied with on a regular basis, Justice Cassidy said “…the whole system of dispute resolution in Australia runs the risk of falling down because parties rely on Court orders to resolve matters. Once orders are not complied with, the Court is left in a situation where, in serious contravention cases, it has no option but to punish the person.?
In the case of Kerrigan, the Court considered the objective seriousness of the father’s conduct (i.e. his failure to comply with the orders to return the child to Australia), the need for general deterrence of non-compliance, the need for specific deterrence in the case at hand, as well as any circumstances that would mitigate the need for punishment.
It was decided that the need to deter similar disobedience in future, and the fact that the father had failed to comply with the Court’s orders on two occasions (despite having been given many opportunities) warranted the serious punishment which was imposed on him.
Further, although the Court did consider only imposing a fine on the father, Justice Cassidy did not consider that it would achieve what ultimately had to occur – that is, having the child returned to Australia, so that the Court could ascertain the best interests of the child.
What to Do If Another Party Has Breached Court Orders?
Before you run off to Court, you must find out the reasons for the contravention and what the other party is intending to do about it. This could save you a lot of money in Court costs or legal fees if you play your cards right. If the other party has a reasonable excuse for breaching parenting court orders especially it’s likely that the court may be lenient to them. You should also try to mediate before you make an application to Court. You may also try to bring the issue to the other parties’ attention to notify them of their behaviour and the consequences which may follow should their behaviour continue. It may be possible they are breaching the court orders without realising it, especially where children are concerned. By doing that you can also give them notice that you intend to file a Contravention Application should their behaviour continue.
To file a contravention application, you must file an affidavit together with an application. The affidavit will contain evidence of the alleged contravention. Your Application should contain the orders you are seeking. If it is established that you have breached the Orders, you may be punished by the Court and you may also be liable for the costs associated with the Application. You must have evidence of the apparent contravention, otherwise your application will be deemed vexatious or without merit. Such being the case, the other party may claim costs against you.
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In determining whether a person who
contravened had a reasonable excuse for the contravention, the
court may only make an order if the
court is satisfied beyond reasonable doubt that the grounds for making the order exist.
Court Orders are meant to be complied with at all times unless you have a reasonable excuse not to. Contact us if you are having issues complying with Court Orders or you wish to vary them. Contact us on
(08) 94742832, via
email or make an
online booking.
