In cases of separation or divorce, court orders that determine parenting arrangements are something not to be taken lightly. In order to maintain stability and reduce the disruption to a child’s life as much as possible, strict adherence to these court orders are essential. In the majority of cases, parents often follow court orders to a tee and with minimal disruption. In some instances where either or both parents choose to violate a court order, a family’s schedule and a child’s stability can truly be thrown out of whack. In order to prevent further disruption and unrest, a parent may turn to contempt proceedings in an effort to force the other parent to follow court orders. These orders can include property settlement, parenting orders and spousal maintenance orders.
Understanding Contempt Of Court
When it comes to contempt of court, there are generally two different types: civil and criminal. Criminal contempt addresses any conduct that has been intentionally defiant of court authority. In the realm of family law, we deal with the other type of contempt -- civil. Civil contempt concerns situations where a person (in this case a parent or guardian) does not follow a court order. There are also two different types of civil contempt, coercive and compensatory
, but coercive civil contempt is most common in child custody proceedings.
Coercive Civil Contempt
Coercive civil contempt is a process in which a party in violation of a court order is forced to comply/obey the order. Co-parents deal with coercive civil contempt when attempting to have the other parent/party adhere to the specifics of court ordered parenting plans. Unlike civil contempt which in some cases can lead to imprisonment, coercive civil contempt sanctions can be avoided if the person found in contempt begins following the specifics of the court order.
Sanctions for civil contempt of court may include:
- Court-ordered supervised visitation
- Updates to the original parenting plan
- Imprisonment - Under the Family Law Act 1975, the Federal Circuit and Family Court of Australia (FCFCA) has the same power as the High Court to punish for contempt. This means the FCFCA can sentence a person to imprisonment.
Proof Of Contempt
Violating parenting orders is extremely serious and any parent found to be in contempt of a court order may have severe sanctions imposed on them. Due to the serious nature of this, the court will require concrete evidence of willful disobedience of the court order. If you are considering contempt proceedings, it is imperative that you have proof in the form of documentation of past communication in order.
Having unimpeachable records of all communication that can help to prove willful disobedience is absolutely key in both making and/or protecting yourself from the other party’s claims. The applicant-party must state the specific terms in the order that were breached and in what way the breach was committed. Another significant allegation that may be included is the damage caused by the violation. Do note that the law requires something more compelling than cases of forgetfulness or simple neglect in compliance.
If you require more information or advice on the topic of contempt of court in family law, do not hesitate to contact one of our experienced family lawyers by calling us at (03) 9670 7577