By James Marmin and James Halliday
Sometimes in Family Law matters, a party will not comply with the orders which have been made. Unfortunately, this can be a common occurrence in Family Law and can take a further emotional toll on the complying party as they attempt to enforce the orders.
Non-compliance can occur in all areas of Family Law where there are Court orders imposed, such as:
My Former Partner is not complying – what can I do?
If possible, the first steps to consider should be negotiation (either directly with the other party, or facilitated by your lawyers) or Dispute Resolution such as mediation. This will allow the parties to discuss the non-compliance, any reasonable excuses for the non-compliance and if there are any reasons the orders made are not possible to comply with. Negotiation may provide a resolution to the issue without the need for further involvement by the Court and potentially costly and lengthy litigation.
Further, if the contravention relates to parenting orders, before applying to the court the Family Law Act requires the applicant to obtain a certificate from a registered Family Dispute Resolution practitioner before filing an application. There are some circumstances that give rise to an exemption to this rule found in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
If the issue cannot be resolved by dispute resolution, there are two options a party may pursue through the Family Court:
- An Application for Enforcement; or
- A Contravention Application.
Application for Enforcement
This is an application to seek the enforcement of existing court orders. As part of this application, you can seek to be compensated for the time not spent with a child as a result of the failure to comply by the other party. The court will also remind the other party of their obligations with respect to the orders and warn of the future consequences of non-compliance.
An enforcement order can assist to enforce payments under property or spousal maintenance orders. The party who brings this application must prove on the balance of probabilities that the other party has breached the orders and this is generally completed using a well-drafted affidavit which is to be filed contemporaneously with the application.
Contravention Application
A contravention Application is of a more ‘serious’ nature as the applicant will be asking the Court to not only make the party in breach comply with the existing order, but also, punish the offending party for their behaviour. Along with your application, a supporting affidavit must also be filed which includes details of how the other party has allegedly not followed the court orders.
It is important to note that Contravention proceedings are ‘quasi-criminal’ proceedings. This means that if the Court finds the allegations which are made to be proven, there may be serious penalties. Due to the gravity of the penalties the Court requires strict compliance with the applicable rules which are found in Division 11.2.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. If these rules are not followed, the application may not be accepted for filing. Please note however that generally the standard of proof is on the balance of probabilities however, for the Court to impose the most serious penalties (as will be discussed below) the allegations must be established ‘beyond reasonable doubt’, similarly to that of criminal matters.
Consequences for Non-Complaince
As discussed, there can be serious consequences for breaching a Family Court order. If a Contravention Application is filed and the allegations contained within are established beyond a reasonable doubt, then the court may then impose penalties on the breaching party. Section 70NFB of the Family Law Act 1975 outlines the potential penalties which may be enforced, the Court may:
• Vary the Orders
• Order that the parties attend a parenting program
• Compensate for time lost with a child as a result of the contravention
• Require the breaching party to enter into a bond
• Order the breaching party to pay all of some of the legal costs or reasonable expenses of the other party
• Order the breaching party to pay a fine
• Order the breaching party to participate in community service
• Order the breaching party to a sentence of imprisonment.
Generally, the most serious penalties such as imprisonment, fines and community service are reserved for repeated breaches.
Reasonable Excuse
As discussed above, the court will consider the evidence to determine if the allegations made in either of the above applications can satisfy the standard of proof in order to conclude if the party has indeed breached the Court Order. If the Court comes to the conclusion that an order has been breached or not complied with, the Court will consider if the party had a reasonable excuse for breaching the order. A reasonable excuse can include:
• That the person did not understand the obligations which the order imposed on them;
• That the person had to breach the order for the protection a person’s health and safety; and
• That this contravention was necessary for that protection and did not last longer than needed.
How can MDL help?
If your former partner is not complying with an order of the Family Court or you believe that an order has been breached, it is best to obtain legal advice and guidance with respect to negotiations, dispute resolution and the Court process.
Alternatively, if you have been served with a Contravention or Enforcement Application, it is important you seek urgent legal advice in relation to your obligations as there may be penalties imposed on you for your alleged contravention of orders.
Our experienced Family Law team can assist in all stages of your family law matter from initial negotiations, dispute resolution and if required, the court process. If you require advice with respect to Enforcement or Contravention Applications or any other Family Law issue, contact us today on 07 3370 5100.
