The law that governs family law, including a breach of orders is the Family Law Act.
When a parenting order is made, either by way of consent orders or after a hearing by the court, every person affected by the order must comply with all of the terms of the order. If there is a breach of orders you can try to resolve the issues, either personally or with the help of a dispute resolution service, or you can take the matter to court. A family dispute resolution service may be able to help you and the other person work through your disagreement.
If an agreement is reached the parties can enter into a parenting plan or they can apply to court for consent orders. Consent orders are enforceable by the court, but a parenting plan is not. It would be in your best interests to get legal advice before entering into any agreement. A lawyer will explain your legal rights and responsibilities, and how the law applies to your case.
If you cannot reach an agreement, you can apply to a court to enforce your orders. The court can enforce an order a make a person comply with the order, or vary an order to make sure everyone can comply with it in the future. If an existing court order no longer reflects arrangements for a child, it should be changed.
Applications regarding a breach of orders are heard by either the Federal Circuit Court or the Family Court, depending on how complex the matter is. You should seek advice as to which court to use before filing your application. The forms you must use and the processes you must follow depend on which court you apply to.
A person breaches an order if they deliberately don’t comply with it or make no reasonable attempts to comply with it. They also breach an order if they help someone else to avoid complying with it or prevent someone else complying with it. Except for more serious breaches of orders or allegations of contempt of court, the person alleging the breach must prove the allegations on what is called the balance of probabilities. This means that the court must accept that it is more likely than not that the breach occurred. In the most serious cases, including contempt of court, the allegation must be proved beyond reasonable doubt. This means that the court must accept that the allegation must be the only reasonable explanation for what has occurred.
If you are the person alleged to have committed a breach of orders and don’t attend the court hearing the court may still make orders, including an order for your arrest. You can attend in person or ask a lawyer to represent you. If you cannot attend, you can request to appear by telephone or videolink. For more information about this, speak to the court staff well before the hearing date. You will need to explain why you cannot appear in person.
If a court decides a person has breached an order, it must then consider whether they had a reasonable excuse for doing so. Some examples of reasonable excuses may be that the person did not understand the obligations imposed by the order or that the person believed that the actions taken when breaching the order were necessary to protect the health and safety of any person, including themselves or the child, and that the breach lasted only as long as necessary for that protection.
After considering all of the evidence and the law, a court may decide:
- the breach of orders is proved
- the breach is proved but there is a reasonable excuse for the breach
- there was a breach that was more or less serious than that alleged without a reasonable excuse
- the breach is not proved.
If the breach is proved the court can do one of 3 things. It can decide to make an order that changes all or some or the original order or it may adjourn the case to allow a person to apply for a further order that alters the original order. It can also impose a penalty for the breach.
Penalties can be:
- an order to attend at a post separation parenting program
- an order to compensate for time lost with a child as a result of the breach
- the breaching party must enter into a bond which can last for up to 2 years. It may require the person to be of good behaviour and/or attend counselling or dispute resolution or some other order. Breaching the bond may be punished by a fine, or the bond may be revoked and another penalty imposed for the original breach.
- that a person pays all or some of the legal costs of the other parties
- that a person pay compensation for expenses lost as a result of the breach
- that a person do community service. Failing to do the community service ordered may be punished by a fine, or the order for community service may be revoked and another penalty imposed for the original offence
- order them to pay a fine
- order that they serve a sentence of imprisonment.