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Home | Family Law | Contravention and Setting Aside Orders

Contravention of Orders 

Once an Order is made by a Court, it is binding on the parties to the proceedings and enforceable. If a party fails to adhere to the terms of the Court Orders without a reasonable excuse for doing so, the Court may impose financial penalties on the party in breach, order a party or parties to attend parenting courses, change parenting orders, or in more serious circumstances, impose a good behaviour bond or a sentence of imprisonment.

There may be circumstances where it is not possible to comply with court orders where compliance would expose children to a risk of harm.

There may be circumstances where it is not possible to comply with Court Orders or where compliance would expose children to a risk of harm. If you find yourself in that situation or if the other party to the Court Orders tells you that they are not going to comply with Court Orders, it is very important to obtain legal advice about those circumstances and the possible consequences of failing to comply with Court Orders or steps you should take to have the Orders enforced. 

Varying or Setting Aside Existing Orders 

In some circumstances existing orders can be varied or set aside, either with the agreement of both parties or by an application to the Court. This may occur in a financial matter where the implementation of the existing orders is impractical, or the original orders were made in circumstances where fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance has caused a miscarriage of justice or if a person has not complied with the order and, in the circumstances that have arisen as a result of that default, the Court considers it to be just and equitable to vary or set the order aside and make another order in substitution for the order.

Another example is if exceptional circumstances relating to the care, welfare and development of a child of the marriage have arisen since the orders were made, being circumstances of an exceptional nature or where the party applying for the change in orders has caring responsibility for the child and would suffer hardship if the Order was not varied or set aside.

Generally the proposition is that a financial settlement should finalise matters for parties in the terms provided by the settlement therefore the Court would require compelling evidence to satisfy the very narrow set of circumstances that may persuade a Court to vary or set aside final orders.

In parenting matters, similar principles of finality or certainty for the children exist. However, as circumstances change for the children in their development or for either of the parents, sometimes it is necessary to vary orders to factor in those changed circumstances.

Like all parenting cases, it is still necessary to attempt to resolve the issue through Family Dispute Resolution unless there is urgency or a risk to the child and it is important to receive legal advice about the utility of attempting to change existing parenting orders.

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