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Contravention of a court order or contempt of court (where a final order exists)

Assessment criteria

Applicants

For legal aid to be granted to make an application for contravention of an order or contempt of court the following tests must be satisfied:

  • The applicant meets the means test, and
  • There is a final court order in place, and
  • There is evidence of or reasonable grounds to believe that the other party has substantially breached the order without a valid reason, and
  • A request has been made for the other party to comply with the order and this has been unsuccessful, and
  • Legal Aid Queensland considers that the matter is inappropriate for the parties to participate at a family dispute resolution conference in relation to the alleged breaches (Guideline 2 – Family Dispute Resolution Services), and
  • The applicant meets the merits test.

Respondents

For legal aid to be granted to respond to an application for contravention of an order or contempt of court the following tests must be satisfied:

  • The applicant meets the means test
  • There is a final court order in place, and
  • Either:
    • There is a valid reason for the applicant for aid not complying with the court order, or
    • The reason for non-compliance is there has been a material change in circumstances which means that the existing orders are no longer in the child’s best interests, or
    • The applicant for aid is likely to receive a penalty involving a sentence of imprisonment for not complying with the order, and
  • Legal Aid Queensland considers that the matter is inappropriate for the parties to participate at a family dispute resolution conference in relation to the alleged breaches (Guideline 2 – Family Dispute Resolution Services), and
  • The applicant meets the merits test

Decision makers of a higher delegation

Applicants funded under guideline 16 – contempt of court and breach of orders are subject to a $2,000 cap. If an extension of aid is requested and the total file commitment will exceed the cap, the matter will be referred to a grants manager for consideration. Legal Aid Queensland treats contempt of court and breach of orders as a new matter for the purposes of the Family Law Costs Management Methodology.

Documentary requirements

Applicants seeking a grant of legal assistance should forward all of the following documents for assessment:

  • A completed and signed Legal Aid Queensland application form
  • Proof of your income and assets (refer to the means test)
  • A copy of the court order
  • For applicants:
    • Details of the alleged breaches, including the dates
    • Details of any requests made to the other party for the order to be complied with and details of any responses received
  • For respondents:
    • Reasons you are not following the court order
    • Evidence to support you not following the court order

Application received from preferred supplier or in-house practitioner

Practitioners seeking a grant of legal assistance must electronically submit an application for aid via the Grants Online system attaching a contempt of court / breach of orders information request as well as:

  • A copy of the court order
  • For applicants:
    • Details of the alleged breaches, including the dates
    • Details of any requests made to the other party for the order to be complied with and details of any responses received
  • For respondents:
    • Reasons your client is not following the court order
    • Evidence obtained to support your client not following the court order

The following documents are retained on file but may be requested by Legal Aid Queensland:

  • Proof of income and assets (refer to the means test)
  • A completed and signed Legal Aid Queensland application form.

Interpretation

There is evidence of or reasonable grounds to believe that the other party has substantially breached the order without a valid reason

Legal aid is only available to make an application for contravention or contempt if there is evidence of a pattern of substantial breaches of the orders without a valid reason.

Legal Aid Queensland considers the following examples as a substantial breach of a court order:

  • Not allowing a party time with the child on multiple occasions.
  • Not returning the child to the party the child lives with.

A request has been made for the other party to comply with the order and this has been unsuccessful

Legal aid is only available to make an application for contravention or contempt of court if the applicant can demonstrate that they have made a request to the other party to comply with the order and have been unsuccessful.

The applicant must provide copies of any correspondence sent to the other party or details of any phone calls made and any responses they have received in relation to their request for compliance.

There is a valid reason for the applicant for aid not complying with the court order

Legal aid is not available to an applicant who has not followed a court order unless the applicant has a valid reason for doing so.

For legal aid to be granted to respond to proceedings, independent evidence must be provided to support the non-compliance with orders.

Legal Aid Queensland may consider the following a valid reason for not returning a child and/or not allowing a party time and communication with a child where the dispute is about a substantial issue concerning the protection of the child from abuse, neglect or family violence.

Existing orders no longer suit the circumstances of the child or parties

Prior to funding an application for contravention or contempt of court on the basis that the existing orders no longer suit the circumstances of the child or parties, Legal Aid Queensland may determine that it is more appropriate to grant legal assistance for a family dispute resolution conference or initiate or respond to court proceedings.

Legal Aid Queensland may only fund an applicant to respond to contempt or contravention proceedings where the dispute is about a substantial issue concerning the protection of the child from abuse, neglect or family violence.

Grant(s) of aid

The grant of aid to apply/respond to an application for contravention of a court order or contempt of court is ENF1.

Extension(s) of aid

If the enforcement hearing proceeds to additional days, the ENF2 grant of aid is available.

Review of decisions

A decision to refuse legal aid for this type of matter may be appealed to the external review officer (refer to review of decisions).

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