Contravention
Contempt
Registration and enforcement of overseas orders and agreements
Warrant for arrest
It often occurs that after orders are made, one of the parties asserts that the other party has breached or defaulted in their obligations under the orders. Occasionally both parties assert that the other is in breach of one or more orders.
The Family Law Act 1975 and the Federal Circuit Court of Australia Act 1999, together with the rules made under each of those Acts, make provision for the courts to enforce their orders and to punish a defaulting party for breach of those orders. In Western Australia (WA), for applications concerning married couples the Family Law Act 1975 and the Family Law Rules 2004 apply and for de facto couples and matters concerning ex-nuptial children practitioners should refer to the Family Court Act 1997 (WA) (which contains mirror provisions to those in the Family Law Act) and the Family Law Rules 2004 as applicable in WA (most of the provisions are the same but some provisions are explicitly different).
In the context of enforcement, contravention or contempt, an enforceable or punishable obligation will arise where parties have had court orders made (irrespective of whether the orders made by consent or following litigation) and/or where the parties have entered into a binding financial agreement. The agreement may relate to property division and/or spousal or adult child maintenance and/or child support. The enforcement provisions of the family law courts are not available to enforce the terms of parenting plans.
Parenting ordersThere are several options available for a party when the other has breached a parenting order. If an applicant is seeking to ensure the performance of an obligation by a respondent, then the applicant should file an application for enforcement in the appropriate court, with the application supported by Affidavit evidence. In some cases where:
- •it is impractical;
- •the party/ies inadvertently breach the orders; or
- •it is no longer possible to implement the orders,
the court may decide that is in the best interests of the children to alter the original orders to make them more workable. See Variation of primary orders.
If an applicant is seeking to have the respondent punished for failure to comply with an obligation under the orders, then the appropriate application is a contravention application. This is where a finding is sought that the respondent has breached an obligation and that the respondent should be punished for that breach (to deter further breaches). A contravention application is a quasi-criminal application and remedies available include a fine or imprisonment.
If the applicant is seeking a speedy remedy to ensure the resumption of arrangements set out in an earlier order and does not seek the punishment of the respondent (eg, by fine or imprisonment) for the breach, then it is preferable that the applicant file an Application in a Case seeking enforcement rather than an Application for Contravention.
For the principles and procedure to be followed in relation to contravention applications where the obligation alleged to have been breached is in respect of children, see Parenting orders — Family Court and Family Court of WA.
Property orders — Family Court and Family Court of WAFor the principles and procedure to be followed in relation to contravention applications where the obligation alleged to have been breached is in respect of financial matters in the Family Court, see Property orders — Family Court and Family Court of WA.
Property orders — Federal Circuit CourtFor the principles and procedure to be followed in relation to contravention applications where the obligation alleged to have been breached is in respect of financial matters in the Federal Circuit Court, see Property orders — Federal Circuit Court.
An application that a person be found in contempt of court should be distinguished from a contravention application, which, although serious in itself, does not reach the same degree of culpability.
Contempt proceedings serve one of two main purposes: either to achieve compliance with an order or to punish a person for non-compliance with an obligation.
If an applicant is seeking to have the respondent punished for a serious failure to comply with an obligation, then the appropriate application is an Application — Contempt in which a finding is sought that the respondent has breached an obligation and that the respondent should be punished for that breach.
If a contempt in the face of the court is committed, the court itself can bring proceedings. Such proceedings will be brought by a senior officer of the court, usually the Principal Registrar.
Where an applicant is in contempt of court because they have previously failed to adhere to court orders, the court may still proceed with hearing the proceedings in which that person is the applicant: s 69F of the Family Law Act 1975. The equivalent section in the Family Court Act 1997 (WA) is s187.
In the Federal Circuit Court, pursuant to rr 19.01 and 19.02 of the Federal Circuit Court Rules 2001, a distinction is drawn between contempt in the face or hearing of the court and contempt other than in the face or hearing of the court.
In respect of the conduct that warrants the bringing of contempt proceedings, see Actions that constitute contempt.
In respect of the documents to file and the procedure that will be followed, see How is a contempt application brought?
In respect of the orders that may be made by a court upon a finding of contempt, see Orders for contempt of court.
Two issues that can arise in family law practice are the questions of enforcing Australian orders in an overseas country or, conversely, enforcing orders made overseas in Australia.
The subjects covered in this topic relate to the circumstance where an interim or final order has been made either in Australia or in an overseas country. In circumstances where orders are sought in Australia, or in an overseas country, and the respondent opposes the exercise of jurisdiction in that country, then that objection must be taken prior to the making of orders. As to the question of competing jurisdictions, known as an argument as to forum, see Appropriate forum.
Enforcement of overseas orders and agreements — children’s issuesThe Family Law Act 1975 prescribes a regime for the registration of overseas orders and the enforcement of those overseas orders in Australia. In relation to the registration and enforcement of Australian orders in an overseas country, with respect to children, see Enforcement of overseas orders and agreements — children’s issues.
Enforcement of overseas orders and agreements — property and financialIn relation to the registration and enforcement of Australian orders in an overseas country, with respect to property and financial issues see Enforcement of overseas orders and agreements — property and financial issues.
Australian orders and agreements to be enforced overseas — childrenIn relation to the registration and enforcement of overseas orders in Australia with respect to children’s matters, see Australian orders and agreements to be enforced overseas — children.
Australian orders and agreements to be enforced overseas — MaintenanceIn relation to the registration and enforcement of Australian orders in an overseas country with respect to financial matters see Australian orders and agreements to be enforced overseas — Maintenance.
The Hague Convention on the Civil Aspects of International Child Abduction provides a specific framework for the return of children to their country of habitual residence if the children have been wrongfully taken to, or wrongfully retained in, another overseas country which is a signatory to the Hague Convention.
A party may file an application for contravention alleging a breach of a parenting order under Div 13A of Pt VII of Family Law Act 1975 (Cth) (FLA) or for breach of a property order under Pt XIII FLA.
A party can apply to the court for location and recovery orders which will assist in locating the child and returning them to the proper party.
See Location and recovery orders.
However, often if an order has been breached, then another course of action is to seek to have a warrant issued against the breaching party both for the purpose of punishment and as a method of ensuring compliance with the order. In most cases, where a party does not participate in the contravention proceedings, the applicant party can choose to apply to the court for a warrant for the respondent’s arrest so they may be brought before the court. The court will decide whether to issue the warrant and will direct the Marshal of the Court to serve and execute the warrant.
See Warrant for arrest.
