Consent orders are legally binding court orders, and both parties are required to comply with them in full. Unfortunately, there are situations where one party fails to meet their obligations - whether by withholding children from scheduled time with the other parent, refusing to transfer property, or ignoring financial obligations set out in the orders. When this happens, the enforcement of consent orders through the Federal Circuit and Family Court of Australia provides a clear legal pathway to compel compliance.
What Constitutes a Contravention?
A contravention occurs when a person bound by a court order intentionally fails to comply with the order, or makes no reasonable attempt to comply. Common examples include:
- A parent refusing to make a child available for time with the other parent as specified in parenting orders
- A parent relocating with the children without the consent required under the orders
- A party failing to transfer property, sign documents or pay a lump sum within the timeframe specified in property orders
- A party disposing of assets that were the subject of consent orders
- A party failing to refinance a mortgage or remove the other party from a loan as required by the orders
It is important to note that a contravention must relate to a specific obligation in the orders. Vague dissatisfaction with the other party's behaviour, or a dispute about something not covered by the orders, will not sustain a contravention application.
Filing a Contravention Application
If your former partner is not complying with consent orders, you can file a contravention application with the Court. This is a formal application that sets out the specific terms of the orders being breached and the facts supporting the alleged contravention. The process involves:
- Identifying the breach: We review your consent orders and the other party's conduct to determine which specific provisions have been contravened and gather evidence to support your application.
- Filing the application: The contravention application is filed with the Court, together with a supporting affidavit setting out the relevant facts. The application is then served on the other party.
- Court hearing: The matter is listed for hearing. The respondent has the opportunity to present a defence - for example, that they had a reasonable excuse for the contravention. The Court then determines whether a contravention has occurred.
- Remedies and penalties: If the Court finds that a contravention has been established, it has a wide range of powers to address the situation.
In urgent cases - particularly where a child's safety or welfare is at immediate risk - the Court can hear an application on an expedited basis. Recovery orders can also be sought if a child has been taken or withheld in contravention of parenting orders.
Consequences of Contravening Consent Orders
The Court takes contraventions of its orders seriously. The consequences for a party found to have contravened consent orders can be significant and include:
- Make-up time: For parenting order contraventions, the Court can order additional time to compensate the affected parent and child for lost time together.
- Variation of orders: The Court can vary the original consent orders to address the contravention and prevent future breaches.
- Costs orders: The contravening party may be ordered to pay the other party's legal costs in bringing the enforcement application.
- Community service orders: The Court can order the contravening party to perform community service.
- Fines: Financial penalties may be imposed for proven contraventions.
- Imprisonment: In the most serious cases, particularly where there have been repeated and deliberate contraventions, the Court has the power to impose a term of imprisonment.
"The power of consent orders lies in their enforceability. The Court has a comprehensive range of tools to ensure compliance, and it does not hesitate to use them when a party wilfully disregards its orders."
When Should You Seek Legal Advice?
If you believe the other party is contravening your consent orders, it is important to act promptly. Delays in seeking enforcement can complicate the process and, in parenting matters, may be interpreted by the Court as acquiescence to the changed arrangements. Equally, if you have been served with a contravention application, you should seek legal advice immediately to understand your options and prepare your response.
At Reid+Alexander Lawyers, we act for clients on both sides of enforcement proceedings. Whether you need to compel the other party to comply with existing orders or you are defending a contravention allegation, we provide clear, strategic advice and strong representation. Contact us to discuss your situation.