Breach and Consequences – Be Careful!
Enforcement of Family Law Orders
What can you do if the other party ignores court orders or consistently breaches them, whether in the context of property and/or parenting matters? Is it worth filing a contravention application?
The best answer to this question will depend on the seriousness of the breach and you can only really gauge that by considering the consequences that might flow from the other party’s behaviour; those consequences might be to place the preservation of valuable matrimonial assets at risk or place financial resources in jeopardy; in the case of parenting orders, a consequence of a breach of a court order might place your children at significant risk. Each breach will turn on its own facts, but consequences are an important factor to consider when deciding what step to take next.
Whatever the circumstances, you do not want to be running off to court on a contravention application for trivial or minor breaches of court orders; any unnecessary contravention application or enforcement proceedings can backfire spectacularly without sound advice and preparation by an experienced Family Lawyer.
In addition to the consequences that flow from a breach of court orders, you must also consider the expense of such enforcement proceedings. They can be complex applications and there are a number of options available aside from running off to file a contravention application. Sometimes your remedy might simply be achieved by negotiating your position, in the context of the breach, without the drastic step of filing court proceedings. Other times your remedy might be achieved by reaching agreement on a variation to the existing court orders. Whatever the breach alleged, it is vital that you open up a proper dialogue with the other party concerned before running off to court. Trying to resolve matters amicably as a first step is almost always the best thing to do, either by requesting immediate compliance with the orders or, as stated previously, by reaching an alternative agreement.
There is a path to tread and rules to follow before filing contravention applications.
The first important question an experienced and sensible Family Lawyer will endeavour to answer before running off to court is……
“Is there a reasonable excuse for the breach?”
You won’t be able to answer this question unless you have had a proper dialogue with the other party. If your Family Lawyer doesn’t make every effort to answer this question for you before filing court proceedings alleging contravention, you perhaps need to take a step back and think about whether that particular Family Lawyer is best for you. You need to receive sensible advice. A sensible and experienced Family Lawyer knows just what questions to ask and quite often they can very quickly assess the consequences of the breach and the excuses put forward by the breaching party to give you a fairly good idea whether the court may or may not determine that there is a reasonable excuse for the breach, in the event that you file court proceedings to enforce the orders.
The other party does not have a reasonable excuse for breach of the court orders!
Breaches involving Parenting Orders
In the case of breach of parenting orders and possible consequences of a breach you will find a very helpful overview here on the Family Court of Australia website here.
If you believe that you may need a recovery order because the other parent has not returned a child/ren then please contact us urgently for advice over the telephone. You can also read what we have to say regarding recovery orders here.
Breaches in Family Law property proceedings
Sometimes a party to a Family Law Court Order is just intent on doing as they please no matter what their lawyer or a Court has had to say about it. When there is no reasonable excuse provided, and/or your ex-partner is just refusing to comply, listed below are some of the avenues available in breaches involving recovering money owing or preserving assets.
Enforcement Warrant – Seizure & Sale of Property – (Drastic but can be very effective)
An Enforcement Warrant is an order made by the court that property belonging to your former partner is seized and sold by the Bailiff in order to pay back the debt owing to you. In order to obtain an enforcement warrant, you have to file an Enforcement Warrant – Seizure & Sale of Property application, supported by an affidavit that outlines the circumstances surrounding the debt owing to you under the orders, as well as an undertaking from you personally that you agree to meet all of the expenses of the Bailiff.
You may be directed to attend an Enforcement Hearing prior to the issue of any warrant. You can also claim interest and costs.
Filing an application in a case and accompanying affidavit outlining the circumstances surrounding the debt owing and the breach alleged is an absolute prerequisite to this remedy. A very wide variety of orders can be obtained at an Enforcement Hearing, including, but not limited to, injunctions, stay of orders and instalment payments.
A Contravention Application is totally distinct from the other avenues of enforcement set out above. The remedies set out above seek to redress the consequences of the breach for the person wronged whereas the Contravention Application seeks an order from the court imposing a punishment or consequence on a person who has breached the Court Orders.
After hearing the application and considering any response, the court may enforce or vary the existing orders, warn the offending party that if they continue to breach orders they will be punished, or simply punish a person by way of fine or even imprisonment (often only as a measure of last resort).
Third Party Debt Notice
A Third Party Debt Notice is a document seeking that a third party who owes money to your former partner or holds money on their behalf pay that money to you to satisfy the debt owing to you. A couple of examples might be;
- an employer who pays your former partner’s salary;
- a bank who holds money for your former partner on term deposit;
- an individual who owes your former partner a debt.
A Third Party Debt Notice is filed in the court, together with an affidavit in support outlining the circumstances surrounding the debt owing. This can be a fairly effective tool in the right circumstances.