Breach of family law orders

Family orders, either for parenting matters or property settlement, can be quite complex. What happens if you or your ex-partner fail to comply with the orders? If the orders are final property orders, often the non-compliance will relate to property not being sold when it is supposed to be, or property not being delivered to the other party.

What should you do if there has been a breach of family law orders?

In the first instance, the best thing to do is to try and communicate with the other party (or ask a lawyer to contact them on your behalf) to find out why the orders haven’t been complied. Often, the reason for non-compliance may be unforeseen circumstances delaying things being done within the court-ordered time limits. In most instances, the property orders will be complied with at some point (even if not strictly within the time limits imposed by the orders).

Can you take further action for a breach of a property family law or child custody order?

Taking further legal action to enforce property orders can be costly and may take so long to progress that the other party will have done what they are required to before further orders can be made. For this reason, we suggest finding out what the problem is first. This is likely to save you money in the long run.

If your ex-partner fails to comply with parenting orders, then you can make an application to the Court to resolve the issue (called a ‘Contravention Application’ if the parenting orders are final orders, or an ‘Application in a Case’ if the parenting orders are interim orders and the dispute is still before the Courts).

What are the consequences for breach a family law order?

The Court can impose fines on parents who fail to comply with family orders. If the contravention is serious enough, the Court also has the power to imprison parents.

What if you have a contravention application made against you?

If a contravention application is made against you, then the other parent alleging the contravention has to prove that the contravention actually occurred. If you deny the contravention occurred, then you do not have to prove your version of events unless and until your ex-partner provides sufficient evidence of the contravention.

If a contravention did occur, then you may also be able to argue that you had a reasonable excuse for contravening the order. If the contravention meant that your ex-partner failed to spend time with the children, in accordance with the orders, then a reasonable excuse can include situations where you contravened the order to protect the health and safety of a person (as long as the contravention was only for the time necessary to ensure their health and safety).

Who has to prove a contravention?

Just as the person alleging a contravention has to prove the contravention occurred, the person who claims a reasonable excuse bears the onus of proving the excuse was, in fact, reasonable.

Alleging a contravention, or defending the allegation, can be a difficult process and we strongly advise you to get independent legal advice.

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