Breaching a Family Law Order
Updated on Dec 28, 2022 • 5 min read • 846 views • Copy Link
Breaching a Family Law Order
When family law orders are made, whether on an interim or a final basis, they are binding on all parties. Breaching a family law order is a serious offence, unless you have a reasonable excuse. When a party breaches an order, the other party has a range of options for enforcing the order or getting the order changed if it is not working. These include filing an Application in a Case to vary the order, filing a Contravention Application, or initiating mediation to try to come to an agreement with the other party. Which path a party should go down depends on the circumstances of the case and the nature of the breach.
What is a reasonable excuse to breach a family law order?
Under the Family Law Act, a person breaching a family law order has a ‘reasonable excuse’ if:
- They believed they had to, to protect someone’s health or safety; and
- The breach continued for no longer than was necessary to protect the health and safety of a person; or
- The person didn’t understand that they were breaking the order at the time. (Family Law Act, Section 70NAE)
A common example of a breach is where parenting orders require the children to spend overnight time with both parents and one parent develops concerns that the other parent is exposing the children to risk, such as drugs or violence. In this situation, a party may argue they had a reasonable excuse to withhold the children and were acting protectively. Whether the court will agree will depend on what reasons the party had for believing the risk factors were present, how serious the risk was, how long the children were withheld for, and whether there was any way contact could have occurred in a way that would have ameliorated the risk, such as under supervision.
The other parent is breaching a family law order. What can I do?
If the other party in your matter is in breach, what you should do depends on the circumstances. If the breach is minor, you can talk to them about the breach and/or invite them to participate in Family Dispute Resolution (FDR). Sometimes persistent breaches of orders are an indication that the orders in place are not appropriate If this is the case, either party can apply to the court to have the orders changed. If both parties are in agreement about how the orders need to change, they can sign a Parenting Plan to change the orders to what they consider to be suitable.
Prior to filing any application in family law, parties must attempt to resolve their dispute through Family Dispute Resolution (FDR) (Family Law Act, Section 60I). However, in some cases where a party is breaching a family law order, FDR is not appropriate or the matter is too urgent to go through mediation prior to filing the application. In these cases, the court may grant an exemption from the requirement of attempting FDR.
When parties attempt FDR, they are issued with a Section 60I Certificate, which is filed with the court as evidence that a genuine attempt was made to resolve the dispute through mediation. If FDR has not been attempted, an affidavit must be filed explaining why this is the case and why an exemption should be granted. Examples of where an exemption will be granted are where there is a history of serious family violence or (in a parenting matter) where the matter is urgent because the children are at immediate risk.
If you believe the other party is breaching a family law order and does not have a reasonable excuse and you cannot resolve the situation through FDR, you can file a Contravention Application. This must be accompanied by an Affidavit setting out all the evidence that the order has been breached and a valid Section 60I certificate or an affidavit as to why an exemption from Section 60I should be granted.
In order for the application to succeed, you must prove on the balance of probabilities, that the breach occurred. If the court is satisfied that the other party is in breach of the order, what it will do will depend on the following:
- The circumstances of the breach;
- Whether the breach occurred once only, or repeatedly;
- Why the order was breached;
- Whether it was a minor or major breach.
What will the court do about a breach?
The court can make any of the following orders in response to a contravention:
- An order that the arrangements under a previous order resume;
- An order compensating a party for lost time with a child;
- An order to vary an existing order;
- An order for a party to attend a Parenting Program;
- An order for a party to pay some or all of the legal costs of the other party;
- An order that a party pay some or all costs incurred by the other party as a result of the breach;
- An order that punishes a party by way of a fine or period of imprisonment.
It is always preferable for parties to sort out their disputes between themselves. This is particularly the case in matters where the court has already made final orders. The court will be unwilling to change final orders unless a party can show that there has been a significant change of circumstances since the orders were made. It will also be unwilling to take action on a Contravention Application unless the breach alleged is found to have been serious and persistent.
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