So, the Court has made Orders, or you’ve got a binding agreement. You’ve spent a lot of money on litigation or having a lawyer negotiate and prepare a formal agreement setting out your respective legal rights and obligations. You want to move on with your life, but your ex won’t let you.
Unfortunately, this scenario is somewhat common in Australia. However, while it is common, it’s not impossible to overcome. In this article, we’re going to help you understand Court Orders, including what may happen when you or the other party don’t comply with them and how you can enforce them.
The family law system in Australia is complex and often overwhelming for those involved in a legal matter, so before we dive into how you can have Court Orders enforced, let’s talk about Court Orders generally.
Table of Contents:
- What is a Court Order?
- Are there different types of Court Orders?
- What kinds of matters can court orders be made for?
- What happens when you don’t comply with a Court Order?
- If someone has breached an Order, what should you do?
- Plan for the worst
What is a Court Order?
A court order is a decision that helps to resolve a legal matter and is made by a judge or judicial officer.
Essentially, a Court Order is a set of rules or decision that is legally binding and provides clarity of the legal relationship (obligations and rights) between the people (parties) involved in the legal matter.
Court Orders can be made in a few different ways. A Court Order may be made after two parties have made a private agreement regarding a matter, such as how they plan to parent after a separation, and they wish to make it legally binding – this is known as a consent order. Court Orders are also often made after a hearing or trial.
When Court Orders are made for family law matters in Australia, they are usually about parenting or financial issues.
Are there different types of Court Orders?
There are a few different types of Court Orders, including:
These orders are the orders that resolve a legal matter and bring it to an end.
An interlocutory or interim order is commonly made in situations where the matter is urgent or a decision is needed before a final trial. This type of order is temporary and usually put in place until final orders can be made.
For many family law matters you have the option to resolve the matter privately, outside of the courts. However, if you don’t formalise the agreement make it legally binding, the parties are relying on each other to uphold their end of the agreement. A consent order is an order that makes a private agreement between parties legally binding.
What kinds of matters can court orders be made for?
As we touched on above, in a family law context, Court Orders are usually made for parenting concerns or financial matters.
These kinds of orders are made about parenting matters such as communication and/or spending time between parents and their children, where the child/ren may live, and other welfare related arrangements for children.
Parenting orders can be applied for by any person who is concerned with the care, welfare, and development of a child, which may include the child’s parents, grandparents and relatives.
When the Court is making a decision regarding a parenting order, the best interests of the child are the paramount consideration. The Court needs to consider two key factors – the benefit to the child of having a meaningful relationship and bond with both parents and the need to protect the child from harm (including psychological and physical harm).
Parenting orders can be applied for at any time, including before, after or during a separation or divorce.
Financial orders are usually made to resolve matters such as the division of property and assets or providing financial support after the breakdown of a relationship (spousal maintenance).
As part of making the Orders, the Court will need to ensure that the arrangements set out are “just and equitable” for each party, and often they will require detailed information from each party to ensure that this is the case.
There are time limits which apply to persons seeking to apply for financial orders. For couples who were married, they have 12 months after a divorce order has been granted to apply for financial orders. For de facto relationships, financial order applications need to be made within two years of the relationship ending.
What happens when you don’t comply with a Court Order?
Non-compliance with a Court Order, also referred to as breaching a Court Order, means that a party has not followed the rules or regulations that have been provided as part of their Court Order.
However, while it may be frustrating that a person isn’t following a legally binding order, they are not going to be immediately arrested for this. Rather, for there to be any consequences for the non-compliance of the Order, the other party involved will need to file a Contravention Application or an enforcement application.
This application essentially alerts the Courts to the non-compliance of the Order and can result in the person who has not been compliant facing serious consequences. They could face penalties such as having to participate in counselling, performing community service, paying a fine, paying compensation to the other party, or in particularly serious circumstances, they could face imprisonment.
Before filing a Contravention Application an attempt to resolve the matter through a means such as Family Dispute Resolution must occur, in most circumstances. If you have attempted to obtain Family Dispute Resolution or have been ruled as exempt from this requirement, you can then apply for the Contravention Application.
To make your Contravention Application you will need to submit an affidavit providing information of how the accused party has contravened the Orders, and either the Family Dispute Resolution Certificate or proof of your exemption.
It’s important to be aware that a breach of Court Orders can happen in a variety of different ways. It must also be considered whether the breaching party had what is known as a “reasonable excuse” for not complying with the order.
Reasonable excuses that may be accepted by the Court include:
- The party that breached the Order believed that their actions were required to protect the health and safety of a person or child; or
- The actions of the party causing the breach did not continue longer than was necessary to protect the health and safety of the person.
If someone has breached an Order, what should you do?
If you find yourself in a situation where the other party to your agreement, your ex for example, is not complying with an Order, it’s important to take a step back and consider the circumstances of the situation. Below, we’ve included some things to think about if a breach of an Order occurs:
Non-compliance with Parenting Orders
Has the other parent breached or contravened your parenting Orders? A party may file a Contravention Application if another party has breached Court Orders. Before taking any action, the aggrieved party must consider two questions;
- Did the other parent have a reasonable excuse? and
- What do I want to achieve by going to Court?
If the answer to question 1 is yes, then you should reconsider before hastily filing an application in Court.
So, what do you wish to achieve? If the answer to that question is that you hope to seek to change the Orders, you may wish to consider making an interim application or a new final orders application. If the breached Orders are final, there will need to have been a significant change in circumstances. The change in circumstances could be the breach of the Orders, but it depends on the circumstances of the breach.
Non-compliance with Financial Orders
Unfortunately, from time-to-time parties are unable to fulfil their obligations for various reasons. There are times where a party may also try to evade their obligations. Below are some examples of common breaches that occur with property orders:
- Has your ex-partner refused to sign a document? – The Court can order a Registrar to sign a document on their behalf.
- Has your ex-partner refused to make a payment? – You could Consider making an application for Third Party Debt Notice. A Third Party Debt Notice is the Family Court version of a garnishee order. It allows the Court to order that a payment be made from a party’s source of income/capital e.g. salary or savings.
- Has your ex-partner refused to make a payment and have no cash or income? – You can consider making an application for the sale of their property so that you may receive your entitlement.
Interest may be payable under the Court Rules if the Court makes an order for payment and the payment is made late.
Plan for the worst
It may be cynical, but as the saying goes, it is always better to be safe than sorry. When you are negotiating your agreement, consider what will happen if a payment is not made or your ex-partner skips the country. In most circumstances, there might be an appropriate alternate outcome if a party defaults or form of security that can be offered if that a party fails to comply.
It’s also important to consider seeking legal advice from an experienced family lawyer. A family lawyer can help you understand your options and obligations so that you can make informed decisions for your future.
If you would like any assistance with compliance of Orders or Agreements, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact with us on (02) 9929 8840.