Contempt


Contempt of court can occur in a variety of ways. In the family law context, it most commonly occurs when there is a serious breach of a court order. A court order is a direction made by a Judge which parties to the proceedings must follow. Some orders are procedural in nature, others can include restraints and injunctions against one or both parties. When a party does not comply with an order or continually does not comply with court orders they can be found to be in contempt.

The court is generally made aware of the contempt by one of the parties filing an application. A party would file an application for contempt if they wanted the orders to be followed and wished to seek that a penalty be imposed on the other party for their non-compliance.

The court has a wide discretion in relation to the penalties that can be imposed, including:

  • Putting a party on notice
  • Making changes to the orders
  • Imposing a fine
  • Imposing a term of imprisonment.

Failure to comply with an order

Being charged with contempt and failing to comply with an Order are not the same thing. In order to be charged with contempt, your conduct must be considered a “flagrant challenge” to the Court’s authority. A charge of contempt must be proved beyond a reasonable doubt which means there must be really strong evidence that a person should be punished for intentionally breaching a Court Order, or acting in a way that directly challenges, or undermines the Court’s authority.

In the event you have failed to comply with an Order, it is a good idea to see a lawyer for legal advice tailored to your specific circumstances.

Imprisonment

Under the Family Law Act 1975, the Family Court has the same power as the High Court to punish for contempt. This means the Family Court has the power to sentence a person to imprisonment as punishment for contempt. However, the Court exercises its power sparingly and they must not do so if there is a more appropriate consequence available. The Court can also issue a fine in addition to, or instead of, sentencing the offending party to imprisonment. The Court has a broad discretion as to the amount of the fine, or length of the imprisonment.

Why is contempt so serious?

The underlying purpose of punishment for contempt is to protect the administration of justice. It is important in our society that the Court functions independently and its Orders are followed diligently by the parties bound by them. Actions which serve to directly and purposely ignore or challenge the Court’s authority are taken very seriously so Judges are provided with a wide discretion as to punishments.

What do I do if someone is in contempt?

Any person can file an Application for contempt in family law proceedings, even if they have no particular interest in the alleged contempt. According to the Family Law Rules, an Application-Contempt should be filed particularising the details of the alleged contempt. It is important that the charge includes detail as the accused needs to understand the specific allegations against them and be provided with an opportunity to respond. The Application will then likely be listed before a Judge for hearing. Applications should not be filed without a proper basis for doing so. It is always a good idea to obtain legal advice before filing an Application.

WHERE TO NEXT?

Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?

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