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Contravention vs. Reasonable Excuse – is it ever OK to breach Court Orders?

Under Section 70NAC of the Family Law Act 1975, a person is taken to have contravened or breached a Court Order in the following ways:

  • Where they intentionally fail to comply with the order; or
  • Where they made no reasonable attempt to comply with the order; or
  • Where they have intentionally prevented compliance with the order; or
  • Where they have aided or abetted a contravention of the order by a person who is bound by the order.

However, sometimes there may be a reason, or a reasonable excuse as to why someone has breached or contravened a Court Order. As such, it is important to know when a Court might be prepared to accept a person’s reasons for why they breached the Court Order.

The Family Law Act 1975 says that any excuse for contravening a Court Order, must be a ‘reasonable excuse’. Right…so what does this mean? Well, this brings me to my next section:

What is a ‘reasonable excuse’ for breaching a Court Order? “There is no such thing!” I hear you cry, one should never deviate from Court Orders made in the family law jurisdiction. Are they not enforceable once signed, sealed and delivered?! But, as I most definitely know by now, there are often exceptions in the legal world, not least in the area of family law.

There is no legislative limit at to what may amount to a reasonable excuse. However there are two specific instances that have been outlined in Section 70NAE of the Family Law Act 1975 as follows:

  • The person contravening the order believed on reasonable grounds that the breach was necessary to protect the health or safety of yourself, a child or another person.

This type of excuse will only be found to be reasonable if the length of time you were in breach of the Court Order was only as long as it was necessary to effect the protection of your own or another person’s health and safety.

  • At the time of the contravention or breach of the Court Order, the person did not understand the obligations imposed by the order.

If the Court Order is quite clear and easy to understand, then convincing the Judge that a person did not understand the Court Order may be very difficult.

If the Court is satisfied that the person truly did not understand their obligations it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.

It is important to note that it is not enough for a party to simply submit to the Court that they believed they had a reasonable excuse. It requires an objective test of whether on reasonable grounds, preventing a party’s time with the child is necessary to protect the other person’s welfare, including that of the child or the party. This is particularly so if, for instance, one party has denied the other party rightful access to spend time with the child or communicate with the child pursuant to the Court Order.

If you are having any difficulties with the implementation of your Court Orders, or alternatively, if you have been accused of breaching your Court Orders, please contact our Family Law team here at Armstrong Legal.

Image Credit – Sebastian Duda ©

Written by Peter Magee on October 11, 2017

Peter is a partner of Armstrong Legal and head of our Family Law Division. He has over 15 years’ experience. His past experience dealing with large cases benefits his family law clients by providing insight into complex and tactical issues. As a result, Peter can often achieve settlements outside Court that may otherwise have not been achievable. View Peter’s profile

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