Enforcing Family Court Orders in Melbourne
Reaching an agreement or obtaining Court Orders in family law matters is a significant step. However, difficulties can arise if one party fails to comply with their obligations. At Kelly & McHale Family Lawyers, we understand the frustration and stress this can cause. We provide clear advice and decisive action to help you enforce your existing orders or formalised agreements, ensuring your rights and your children’s best interests are upheld.
What Does “Enforcement of Orders” Mean?
Enforcement refers to the legal process of ensuring that the terms of a binding Court Order or a formalised agreement (such as Consent Orders or a registered Child Support Agreement) are followed. If a party is not complying, the other party can seek assistance from the Court to compel adherence.
This can apply to various types of orders and agreements, including:
- Parenting Orders: Arrangements for who children live with, the time they spend with each parent, specific issues like schooling or holidays, communication, and parental responsibility.
- Financial Orders: Orders for property settlement (e.g., payment of a sum of money, transfer of property, sale of assets) and spousal maintenance.
- Registered Child Support Agreements: Agreements about child support payments that have been formally registered with Services Australia (Child Support) or made part of Court Orders.
Initial Steps When an Order is Breached
Before rushing to Court, it’s often advisable to consider:
- Communication: Sometimes a breach may be due to a misunderstanding. Clear and calm communication with the other party (or through lawyers) can sometimes resolve the issue.
- Written Notification: Formally notifying the other party in writing of the breach and requesting compliance can be an important step.
- Dispute Resolution/Mediation: For parenting matters, unless there are urgent circumstances or issues of risk, attempting Family Dispute Resolution (mediation) may be required or beneficial to try and resolve the non-compliance.
However, if these steps are unsuccessful or inappropriate given the nature of the breach, court intervention may be necessary.
The Court’s Powers: How Orders Are Enforced
The Federal Circuit and Family Court of Australia has significant powers to enforce its orders and address non-compliance. The specific process and remedies depend on the type of order breached.
- Enforcing Parenting Orders: If a party breaches a parenting order without a reasonable excuse, the other party can file a Contravention Application. The Court will first determine if a breach has occurred and whether the person had a ’reasonable excuse.’ If a breach is established, the Court can make a range of orders, depending on the seriousness and frequency of the breach, including:
Ordering “make-up” time for time lost with a child.
Varying the existing parenting orders.
Ordering the breaching party to attend a parenting program.
Ordering the breaching party to enter into a bond.
Imposing a fine.
Ordering payment of legal costs.
In very serious or repeated cases, imposing more significant sanctions, such as a period of imprisonment (though this is rare).
- Enforcing Financial Orders and Agreements: If a party fails to comply with a financial order (e.g., not paying a sum of money, failing to transfer a property), an Enforcement Application can be made. The Court has various powers, such as:
- Garnishee Orders: Requiring a third party who owes money to the defaulting party (like an employer or bank) to pay that money directly to you.
- Seizure and Sale of Property: Ordering the sale of an asset owned by the defaulting party to satisfy the debt.
- Sequestration Orders: Appointing a sequestrator to take possession of the defaulting party’s property to manage it and meet the obligations.
- Ordering the payment of interest on unpaid monies.
- Ordering the defaulting party to pay your legal costs.
Why Acting Promptly is Important
If you believe an order or agreement is being breached, it’s generally advisable to seek legal advice sooner rather than later. Delay can sometimes complicate matters or be seen by the Court as acquiescence to the breach.
How Kelly & McHale Family Lawyers Can Assist
Navigating the enforcement process requires a clear understanding of your legal options and the Court system. Our experienced family lawyers can:
Provide a clear assessment of whether a breach has occurred and the likelihood of successful enforcement.
Advise on the most appropriate steps to take, including negotiation, mediation, or court action.
Prepare and file all necessary court documents for Contravention or Enforcement Applications.
Represent you effectively in Court hearings.
Assist in negotiating resolutions to breaches where possible, to avoid further costly litigation.
Help you understand the implications of any enforcement action on your existing orders.
We are committed to helping you ensure that the terms of your hard-won orders or agreements are respected and followed.
Frequently Asked Questions (FAQs) about Enforcement of Orders
Here are some common questions regarding the enforcement of family law orders.
What is a “reasonable excuse” for breaching a parenting order?
A “reasonable excuse” might include situations where a party genuinely believed on reasonable grounds that their actions were necessary to protect the health or safety of the child or themselves, and the breach was for no longer than necessary to deal with that situation. The Court assesses this on a case-by-case basis. Misunderstanding the order is generally not considered a reasonable excuse.
To help us advise you: What reason, if any, has the other party given for not complying with the parenting order?
How long do I have to wait before I can say an order has been breached?
There isn’t a set waiting period. A breach occurs as soon as a term of the order is not complied with (e.g., a child is not returned on time, a payment is missed). However, the action you take might depend on the nature and severity of the breach. A minor, one-off incident might be approached differently to a persistent pattern of non-compliance.
To help us advise you: Can you describe the specific term of the order that has been breached and when this occurred? Is this an isolated incident or part of a pattern?
Can I stop the other parent from seeing the children if they breach a financial order (e.g., don’t pay me money they owe)?
No, generally you cannot link these issues. Parenting arrangements are based on the children’s best interests. Withholding contact with a child because of an unpaid financial obligation is usually not permissible and could lead to you being in breach of parenting orders. Financial and parenting matters are enforced through separate court processes.
To help us advise you: Are there both parenting and financial orders in place? Which type of order is being breached?
What if the other parent keeps breaching parenting orders repeatedly?
Repeated breaches are taken very seriously by the Court. If a pattern of non-compliance is established, the Court has a wider range of sanctions it can impose, and it may also consider whether the existing parenting orders are still appropriate or if they need to be varied to better ensure compliance and protect the child’s best interests.
To help us advise you: Can you provide details of previous breaches and any actions taken at those times?
Will I get my legal costs back if I have to go to Court to enforce an order?
The Court has the power to order the defaulting party to pay your legal costs for enforcement proceedings, particularly if their non-compliance was unreasonable or blatant. However, cost orders are not automatic and are at the Court’s discretion.
To help us advise you: Have you incurred legal costs previously in trying to get the other party to comply?
Can an informal agreement we made after our Court Orders be enforced?
Generally, no. If you have existing Court Orders, any informal changes you agree to with the other party are not automatically enforceable by the Court unless those changes are formalised into new Consent Orders. Relying on informal changes can be risky if the other party later decides to revert to the original Court Orders.
To help us advise you: Are your current arrangements based on the formal Court Orders or a subsequent informal agreement?
Protecting Your Rights and Ensuring Compliance
If you are facing difficulties with non-compliance of Court Orders or formal agreements, don’t delay seeking advice. Contact Kelly & McHale Family Lawyers today for your free first consultation to discuss your options.