When the Court makes orders, all parties need to follow them. Otherwise the Court can impose penalties. A person breaches an order if they deliberately do not comply with it or make no reasonable attempts to comply with it. If there are orders in place and they are not being followed, there are two options through the Family Court for the aggrieved party: an Application for Enforcement; or A Contravention Application.

When an Enforcement Application is made, you are asking the Court to make the party in breach of court orders comply with the existing order. The Court will remind the offending party of their obligations to follow the orders and warn of future consequences if the breach behaviour continues. The party who files the Enforcement Application must prove, on the balance of probabilities, (meaning, more likely than not), their allegation that the other party has breached orders.

A Court can enforce orders regarding the payment of money, an obligation to sign or execute a document, to entitle a person to real property or personal property (such as furniture, artwork, jewellery, etc); and in relation to a parenting order.

When a Contravention Application is made, you are asking the Court to make the party in breach of court orders comply with the existing order but also punish the offending party for their behaviour. Contravention proceedings are quasi-criminal proceedings and run in a prosecutorial manner. The party who files the Contravention Application may need to prove, beyond reasonable doubt, their allegation that the other party has breached the orders.

A person seeking an enforcement may need to consider which application will be the more effective method of compliance.

It is not as straightforward as simply stating to the Court that an order has been breached. There are several documents to be filed and disclosed, and the Court needs to be satisfied that the party against who the enforcement has been sought has the capacity to undertake what is required. If the Court is not satisfied, they have the power to vary the orders.

Consequently, you should also get clear qualified advice about which application best suits your situation and potential outcomes before making an application for an order to be enforced. We are experienced in preparing, running and defending enforcement applications and can readily assist to achieve the best outcome in your situation.

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