Not Playing by the Rules – What to do when your former partner is not complying with a Court Order
When parenting or property orders are made, each person must follow the orders. If one person has not complied with an order, you should seek legal advice before deciding what to do.
In summary you have a few options where your former partner is breaching court orders.
1. We can write a letter to your former partner outlining your concerns and attempt to rectify the breach;
2. We can suggest a mediation to attempt to rectify the breach; or
3. We can issue proceedings into court for enforcement of that breach.
Writing a letter
It is always advisable to try and solve your issues out of court. If your former partner receives a letter from us outlining your concerns, then your issue may be able to be resolved. We always recommend an approach that will save you both time and money.
If this option does not work or want to take a more interactive approach, then you can consider mediation.
Attending a privately run mediation, with lawyers assisting you, may help to resolve the issue. Generally where there is a non-biased third party view, this can help parties to resolve matters. It is always helpful to think about the matter from the other party’s perspective and attend mediation with a view to compromising. If you feel you cannot compromise, or the other party will not compromise, then it may be that the only other option left is to make an application to the court.
When it comes to parenting order, prior to consideration of court proceedings it is always a good idea to consider Mediation/ Family dispute resolution. This shows the court you made a genuine effort to resolve the issues. It is also much more expensive to file an application in the court and in doing so; you leave the decision making to a third party (Judge).
Sometimes you are in a bind, so much so that the only option is to go to court.
Courts do not automatically enforce orders and will not know if they have been breached until they are advised of the fact. You have to tell the Court what the problem is in your application and then the court will decide if another order is needed to enforce the existing order. This is known as a contravention application.
If you apply to the court for a contravention application, the court can do a number of things including enforcement of an order, varying the orders or applying a punishment for failing to obey an order. This punishment could be a cash penalty or a community based order. Therefore, before you file a contravention application, you need to consider the result you want to achieve. With parenting matters you must consider that you have to parent with the other person and the damage that this may cause to your relationship.
If your matter is a property matter, and the other party is refusing to sign a document for a sale of a house for example, the existing orders may allow a registrar of the court to sign that document. This is called a Section 106A order. If your orders allow this, then you will need to draft an affidavit to the court spelling out why you seek a Registrar to sign the particular document and the attempts you have made to get your former partner to sign those documents.
If the orders do not have a Section 106A clause, you can apply to the Court for a Section 106A Order and have the Court sign the document in the name of your former partner.
Before you decide what to do, it is advisable to seek legal advice to discuss all of your options. A lawyer can help you understand your legal rights and responsibilities, and explain how the law applies to your case. A lawyer can also help you reach an agreement without going to court.
If your former partner is not complying with a Court Order and you would like to know your options, please call our office to speak with one of our skilled Family Law solicitors.