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, 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 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. However, it exercises its power sparingly. It can issue a fine in addition to, or instead of, imprisonment, and has a broad discretion as to the amount of the fine, or length of 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 that directly and purposely ignore or challenge the court’s authority are taken 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. Rule 11.71 of the Federal Circuit and Family Court (Family Law) Rules 2021 states that if it is alleged that a party has committed contempt of court, a contempt application should be filed. The application should state the contempt alleged and be accompanied by an affidavit setting out the alleged facts. The application will then be listed before a judge for a hearing. It is always a good idea to obtain legal advice before filing a contempt application.

For advice or representation in any legal matter, please contact Armstrong Legal.