Once the Court has made Orders (on an interim or final basis), the parties (and third-parties) need to do all things necessary to give effect to them. Orders made by the Family Court must be followed at all times. If you believe you need to breach a Family Court Order, you should consider getting legal advice as soon as possible.
If you have been ordered to do something in particular and you are unsure of how to meet that Order’s requirements, you should consider seeking legal advice.
If a party does not follow the Orders made by the Court as required, then they will be in breach of the Orders. Breaching Court Orders is serious and can attract a number of consequences.
If a party is withholding children contrary to Family Court Orders, you can seek the immediate assistance of the Western Australian Police. In those situations, you should consider calling “000”.
If the other party to your matter is not following the Orders as set by the Court, then you can apply to the Court to enforce the Orders which they have made.
It is important to note that a contravention application for enforcement of Orders is a semi-criminal matter in the Court. This is because, whilst it deals with Family Court Orders, breaching an Order of any Court can constitute a crime. The end result for contravention applications can include sentencing Orders, to deliver a consequence to a breaching party (without reasonable cause).
Drafting your Application
You will need to file a Form 18 Contravention Application in the Family Court. The Court has drafted complete kits for contravention applications, and by this stage, you would have been more familiar with the Family Court process having sought and received Final Orders already.
- For instructions concerning Orders about a child’s care, download the Court’s kit here;
- For instructions concerning Orders about finances, download the Court’s kit here.
For both applications, you will need to draft and file a Form 18 Application – Contravention. You can download a copy here.
You will also need to draft and file a standard form affidavit. In this affidavit, you must outline the history of the parties’ Orders, the breaches that have occurred and why the Orders you seek will prevent further breaches and make up for any loss suffered because of a breach. You can find a copy of the standard affidavit form here, and the Family Court’s affidavit instruction kit here . As the affidavit will be sworn evidence you must ensure that the contents are true and correct to the best of your knowledge and belief.
If your Application involves children’s matters, you will need to take the matter back to Family Dispute Resolution Mediation (unless you have an exemption). You may already be familiar with Family Dispute Resolution from your initial application.
Family Dispute Resolution mediation is mediation lead by a specialist Family Dispute Resolution Practitioner. FDR is offered both publically and privately. You can access community FDR services through Relationships Australia and Anglicare. You can also pursue FDR mediation via private services. The Court will not accept your Form 18 Application unless you have a certificate from an FDR practitioner, stating that mediation was attempted and no resolution was met. This extends to one party refusing to attend or take part in mediation. This is also known as a “section 60I certificate”.
There are limited circumstances under which the Court will accept your Application with an exemption from FDR. These circumstances are:
- If there is a history or present risk of family violence;
- If your matter is too urgent to go through the FDR process;
- If you are unable to attend FDR due to extenuating circumstances (eg: location of the parties, illness, etc); or
- Your application is brought because one party is not following a set of Orders already made by the Court.
If you intend to bring your application under one of those 4 exemptions, you will need to complete and file with your application an FDR Exemption Kit Form. You can download this from the Family Court website, here.
Filing and Service
You will need to file your Form 18 Application in the Family Court, with 2 copies of the Form 18 and the Affidavit, along with the original. For children’s matters, you will also need to file your FDR mediation certificate or your exemption form.
Once your application has been accepted for filing, the Court will allocate your matter to a Magistrate or Judge in the Court. You are now the Applicant in your matter. You will be contacted at the details you have provided to the Court with your first court hearing date, as well as any further information that the Court. Your application will proceed in the Court much like an Initiating Application.
Most importantly though, you will need to serve the other party with a sealed copy of your application. A sealed copy is a copy stamped and received by the Court, returned to you with details of the first hearing date for the Respondent to your matter to be aware of. The Court has very specific rules regarding proper service. If they are not followed, your application may be delayed or dismissed.
Find a copy of the Family Court’s Service Kit here. The Kit includes an Affidavit for Service (to be completed by the person serving to prove that service was done) and an Acknowledgement of Service (to be completed by the person being served to confirm that they received their documents).
Responding to a Contravention Application
If you are breaching Family Court Orders, you should consider getting legal advice. Orders can only be breached without consequence in particular circumstances.
If a Contravention Application is made against you, you will have to attend in the Court and understand the application made against you. The Court has drafted information kits for Respondents to a contravention application:
- For information concerning Orders about a child’s care, download the Court’s kit here;
- For information concerning Orders about finances, download the Court’s kit here.
You do not need to respond either, however you can file an affidavit to respond to any evidence presented by the other party.
If you decide to respond, you will need to draft and file a standard form affidavit. In this affidavit, you must outline the history of the parties’ Orders and your response to the breaches that have occurred. You can find a copy of the standard affidavit form here, and the Family Court’s affidavit instruction kit here . As the affidavit will be sworn evidence you must ensure that the contents are true and correct to the best of your knowledge and belief.
After filing, you will then be contacted by the Court with details of your Contravention Conference. A Registrar will sit in Conference with both parties to discuss both parties’ positions to the contravention application.
After that Conference, you will be listed for a hearing before a Magistrate or Judge, who will make Orders regarding the continued care of children and/or division of property. If a contravention is found to have occurred, the Court may make additional sentencing Orders. These can range from a party having to take a parenting course, to having to pay a fine, to (in very extreme cases) imprisonment.
If you require more information or legal representation in the context of a Contravention Application, you should consider seeking legal advice.