Enforcing Court Orders

Enforcing Court Orders

 

Enforcing court orders | contravention order

 

The eBook Preparing for Separation and Divorce explains the steps you need to take before you can apply for a court order. The eBook Children and Divorce discusses parenting orders while the eBook Property Settlements and Spousal Maintenance discusses the financial orders that a Family Law Court can enter.

Finally, the eBook Consent Orders explains how you can obtain a consent order. But as valuable as court orders are, there are times when a person who is ordered to do something refuses to comply. If your former spouse or partner is ignoring or disobeying a parenting or financial order, there are steps you can take to enforce your rights.

This eBook explains how court orders can be enforced. While the eBook provides general information, it cannot cover every situation that might arise. You should seek advice from a family law lawyer if you have questions about enforcing the specific orders that were entered in your case. Moreover, this eBook cannot and does not give you legal advice. Only an lawyer can do that.

Enforcement of financial and maintenance agreements

Some people enter into financial agreements before or during marriage. These agreements specify what will happen financially if the relationship ends. They may provide for a division or disposition of property and financial assets. They may also require one party to maintain the other during marriage or after divorce.

A financial agreement is just that an agreement. It is not a court order. If a party to a financial agreement does not comply with its terms, you cannot enforce the agreement until you obtain a court order stating that the agreement, or some part of it, is enforceable as if it were a court order.

A maintenance agreement is a written agreement between the parties to a marriage that deals with financial matters and that has been approved by a court. A maintenance agreement has no effect unless it has been approved by a court. Once it has been approved, it may be enforced as if it were a court order.

Enforcement of financial orders

The Family Law Rules require a person seeking enforcement of a financial order to file an Application with the Family Court. In most cases, the Application must be supported by an Affidavit that explains why the order is needed.

Among other options, the Family Court can:

  • Hold an enforcement hearing;
  • Declare an amount of money to be due and owing;
  • Require money that is owing to be paid in full by a specified date or in installments on a specified schedule;
  • Require the person owing money to file a financial statement or produce financial documents;
  • Prohibit the person owing money from selling or disposing of assets; and
  • Require the person who disobeyed the financial order to pay the costs of the enforcement proceeding.

The Family Law Courts are authorized to enforce a financial order requiring the payment of money by ordering:

  • The seizure and sale of real estate that belongs to the party who has disobeyed the financial order;
  • The attachment of earnings or other money owed to the party who has disobeyed the financial order;
  • Sequestration of property owned by the party who disobeyed the financial order; or
  • Appointment of a receiver (generally to take over the business or financial affairs of the party who disobeyed the financial order).
  • n addition, the Family Law Courts can hold a person in contempt for flagrant disobedience of a financial order. Punishment for contempt of court can include imprisonment.

In addition, the Family Law Courts can hold a person in contempt for flagrant disobedience of a financial order. Punishment for contempt of court can include imprisonment.

Enforcement of child support assessments

In most cases, child support assessments are made administratively by the Child Support Registrar, not by the Family Law Courts. The Department of Human services has several options for the enforcement of child support payments:

  • Employers can be asked to deduct arrearages in support payments from an employee’s paycheck;
  • Tax refunds can be intercepted and the money applied to child support arrearages;
  • An order can be entered prohibiting an individual from leaving Australia until the child support arrearage is paid;
  • Court actions may be commenced to seize income or property belonging to the person who owes the arrearage;
  • In extreme cases, criminal prosecution may be warranted.

Enforcement of parenting orders

Parenting orders are often the most challenging court orders to enforce. If the other parent is supposed to have regular contact with your child and is failing to keep his or her appointments, the child will be disappointed and may feel shunned or abandoned by that parent. You should try to explain your child’s feelings to that parent and encourage a commitment to parental responsibility.

You may want to work out a new contact schedule that will be easier for the parent to meet. Less frequent contact on a regular schedule will at least give the child a realistic sense of when contact will occur and will prevent the child from feeling unwanted by the other parent.

On the other hand, a child may refuse to spend time with a parent who is trying to comply with a contact order. Under those circumstances, the parent with whom the child is living has an obligation to encourage the child to spend time with the other parent. Still, you should take time to listen to your child to determine why your child does not want to spend time with the other parent. Your child may be reluctant to share the true explanation.

For instance, your child might resent the parent’s new partner and might think that spending time with that new partner is disloyal to you. You should help your child work through those feelings by assuring your child that you want your child to maintain a close relationship with the other parent. On the other hand, your child might not want to see the other parent because the child experiences or fears violence or abuse when the child visits the other parent.

If you suspect that is the case, you should contact appropriate authorities so that those concerns can be investigated. You can also apply to the Family Court to vary (or end) the contact provisions of a parenting order if that will best protect your child. Our eBook Domestic Violence and Special Needs has more information that might assist you.

If your parenting order requires both parents to consult with each other and to share responsibility for making decisions about the children, you might encounter some disagreements that are difficult to overcome. For example, you might not agree about the school the children should attend or the activities in which they should be allowed to participate.

If discussions become unproductive, think about using mediation or some other community-based family dispute resolution service to help you work through your problems. The nearest family law registry can give you information about family dispute resolution services near you, or you can access Family Relationships Online to explore resources for resolving parenting disputes. If all else fails, you can apply to the Family Law Courts to resolve the dispute by altering (or amending) your parenting order.

Other violations of parenting orders pose special problems:

A parent prevents or interferes with your child contact

If you have an order allowing you to have contact with the children but the other parent will not permit you to do so (or wants you to pay money or do something else as a condition of seeing the children), you can apply to the Family Law Courts for a contravention order, as is discussed below.

A parent refuses to return your child

If the parenting order provides that the children are to live with you but the other parent refuses to return them, has taken them away, or is concealing them, you can file an Application in a Case and request the court’s urgent intervention. If the court agrees that the remedy is appropriate, it can enter a location order to compel a parent to reveal the child’s current location. The court can also enter a recovery order to order the child’s return or, if necessary, to direct law enforcement authorities to find and recover the child. If you need help after court hours, check the website of your local family law registry for an emergency telephone number.

A parent has abducted or abused your child

If you fear your child has been abducted or is being abused, consult our Domestic Violence and Special Needs eBook for further information.

Obtaining a contravention order

If you believe the other parent is deliberately refusing to comply with a parenting order, you can seek the help of the Family Law Courts by filing an Application - Contravention. You must also file:

  • A copy of the order that the other parent is disobeying;
  • An affidavit explaining how the order is being contravened; and
  • Either a certificate confirming participation in a dispute resolution process within the past 12 months or an affidavit of non-participation explaining why you have not participated in dispute resolution (for instance, because the need for court action is urgent). If the parenting order was made within the previous twelve months, you will not need to participate in dispute resolution but you will still need to file the affidavit of non-participation.

Not all failures to comply with a parenting order constitute a contravention (or breach) of the order. Only intentional failures to comply will be deemed a contravention. If a parent has a reasonable excuse for not complying with the order, the court may decide not to enforce the order. Examples of a reasonable excuse include:

  • Misunderstanding the order’s content or requirements;
  • Reasonably fearing that complying with the order will endanger the child by exposing the child to violence or unsafe circumstances;
  • Reasonably fearing that complying with the order will endanger the parent by exposing the parent to violence.

If, after holding a hearing and considering the evidence, the court finds that a parent contravened a parenting order without a reasonable excuse, the court can impose a variety of remedies and penalties. They include:

  • Requiring the parent to attend a parenting program;
  • Requiring the parent to execute a bond;
  • Ordering the parent to compensate the other parent for time lost with the child;
  • Ordering the parent to compensate the other parent for reasonable expenses incurred as a result of the contravention;
  • Ordering the parent to pay the legal expenses of the other parent;
  • Imposing a fine;
  • Imposing a term of community service;
  • Imposing a term of imprisonment.

The court can also change (or vary) the parenting order if that would be the best solution to the problem.

Warning and Disclaimer
Enforcing Court Orders by Alan Weiss is a self-help eBook written from the perspective of the author.

The author does not claim to be a substitute for a lawyer. Nor does he claim knowledge of any individual’s situation. This EBook does not give legal advice its aim is to give practical advice. Visit Aussie Divorce to find the right divorce lawyer.

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