Contempt of court in family law

Key insights

• Ignoring family law orders can lead to serious legal consequences, including fines, costs orders, or imprisonment
• Different breaches require different responses, including contravention, enforcement, or recovery orders, depending on the situation
• Contravention applications focus on proving intentional non-compliance or lack of reasonable effort to comply
• Enforcement applications are commonly used in property matters to compel payment, transfers, or compliance with financial orders
• Parenting plans are not legally enforceable, making consent orders a stronger option where compliance is a concern
• The court can intervene urgently in serious parenting matters, including issuing recovery orders where a child is withheld
• Courts now recognise misuse of the legal system and can restrict harmful or unmeritorious applications
• Strong evidence, including records of communication and specific breaches, is critical to support any application

When orders have been made in your family law matter, whether by consent or made by a judge, it is important to understand what your rights and obligations are. If your ex-partner is not complying with what was agreed or ordered, then it is important that you take immediate action.

Family law is a stressful and emotional area, and it can be especially frustrating when your ex-partner refuses to comply with what they agreed to.

Contempt of court is a disregard for the court’s process. This can happen during court, where a person does not show up or interrupts the court. Or this can happen throughout and after proceedings where a person refuses to file their documents or does not comply with orders.

What to do if your orders are breached?

Recovery orders

In serious parenting cases where your ex-partner is withholding your child from you and they have refused to return them, you may need to take urgent and immediate steps to file an Initiating Application seeking recovery orders.

These types of applications are very serious and should not be undertaken lightly, but if there are serious risks to your child, including neglect, drugs or alcohol, then you should speak to a family lawyer to assist you and make sure that your application has merit before filing.

Contravention application

When your ex-partner refuses to fulfil their obligations under your orders, such as refusing phone calls or not including you in major decisions, then you may want to consider a contravention application.

If applying for this application, you will need to prove that your ex-partner intentionally failed to comply with the orders or that they made no reasonable attempts to comply with the order. Your ex-partner will then need to argue that they had a reasonable excuse for contravening the order. Contravention applications are known as ‘quasi-criminal’ in nature, and the main purpose is to punish the other party. The purpose is to prevent further breaches of the orders.

Enforcement application

If your ex-partner is refusing to pay you a sum of money or comply with a superannuation split, you may want to consider filing an enforcement application. 

These applications are more commonly used in property matters to make a one-off payment or to sign for the transfer of property where one party refuses to do so. These applications are often referred to as a section 106A application, where the court may appoint a court officer to sign on the non-compliant party’s behalf.

The difference between enforcement and contravention applications is that an enforcement application seeks to return the status quo to the original obligations under the orders. A contravention application seeks to punish the other party as a means of preventing further breaches of the orders.

Parenting orders will often make better use of a contravention application because they often involve ongoing breaches, as compared to property orders that relate to a one-off breach and a refusal to make payment or transfer.

If a lot has changed since your parenting orders were made or agreed to, and they are no longer working or appropriate for your child, you may want to consider a section 65DAAA application. This allows a court to reconsider final orders if there has been a significant change in circumstances since the making of the previous orders. This is often a high threshold, and there will need to be compelling new evidence available, because it is not in the best interests of a child to go through court proceedings, especially multiple times, unless it is absolutely necessary.

What to do if your parenting plan is breached?

If you have signed a parenting plan (compared to consent orders), then your contempt of court options are limited, as a parenting plan is unenforceable.

If you are seeking parenting orders at a later date, a court is still required to consider a parenting plan as far as it is relevant to a child’s best interests, but it is not determinative. If you are concerned that your ex-partner is not following the terms of your parenting plan or there is a lack of trust, then you may want to consider turning them into consent orders so that they can be enforced at a later date.

What to do if your ex-partner is lying, sneaky or harassing you with the court process?

Since 6 May 2024, the family court has identified that abusive parties have been known to weaponise the court process by filing unmeritorious applications seeking to cause harm to their former partner. In response, the court has introduced unmeritorious proceedings orders, vexatious proceedings orders and harmful proceedings orders. These orders allow parties to make an application seeking that further proceedings would cause psychological or mental harm should they be permitted to proceed, and they should not be permitted to proceed.

The aim is to protect victims of domestic violence and to prevent further harm from pointless applications being made.

The court could also make an order applying an Anshun estoppel of the proceedings, seeking to prevent parties from bringing up issues that should have been raised in the previous proceedings.

What is the penalty for being in contempt of court?

There is a range of penalties and orders that the court can make regarding contempt of court proceedings, and it depends on whether you are in parenting or property proceedings and the severity of the non-compliance or contempt.

Some examples of the orders the court can make include:

1. make-up time to allow a child to spend time with the parent whose time was reduced by the other parent;
2. ordering that a non-compliant party meet the other party’s legal costs, including for the costs of filing one of the applications listed above;
3. order that the matter proceed on an undefended basis (without the non-compliant party’s input) and make adverse orders against them where a party is refusing to take part in the court process, including refusal to provide disclosure, comply with court orders or attend court; and
4. in serious cases of non-compliance, the court can order fines and imprisonment if they consider it necessary, in contrast to the contempt.

What should you do to prepare for a contempt application?

Collating evidence is essential to prove that there has been non-compliance.

It is important you keep records of exactly what the breach or breaches are, including any text messages, dates, times and things said. 

If you are looking to commence contempt proceedings or seeking to defend yourself from an application, Australian Family Lawyers can help you resolve issues in relation to parenting issues, property settlement, divorce and spousal maintenance.