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Parenting orders - breaches

Parenting orders - breaches

What happens if I breach a parenting order?

Breaching (which means breaking or contravening) a parenting order is very serious. It is also serious to help someone else to breach a parenting order or to stop a person from doing what the parenting order says they must do.

If you breach a parenting order, the other parent (or other people involved) can then choose to make an application for enforcement or start contravention proceedings.

 

Enforcement

An enforcement application is an application that seeks to enforce (or make you follow) the parenting orders. Enforcement does not result in any punishment for the person breaching the orders or change to the orders, but the court can order that the person applying for the enforcement be compensated (for example, by way of make-up time with the child). The other person does not need to invite you to mediation before filing an application for enforcement of parenting orders.

 

Contravention

If the other person starts contravention proceedings, the court can punish you unless you have a "reasonable excuse" for breaching the parenting order. The court will only consider that you have a “reasonable excuse” if:

  • you believed you had to breach (contravene) the parenting order to protect someone's health or safety (and the breach only continued as long as was necessary to protect that person), or 
  • you did not understand that you were breaching the parenting order at the time.

Usually the other person would need to invite you to go to family dispute resolution before starting contravention proceedings; however, there are exceptions to this. One of the exceptions is that the parenting order was made less than 12 months ago and the breach showed serious disregard for the obligations under the order. For more information and the other exceptions, see Family dispute resolution.

If the other person says you have breached a parenting order or you have to go to court because the other person says you have breached a parenting order, you need to get legal advice. You should also get legal advice if the court says you have breached a parenting order.

What will happen if the Family Court decides that I have breached a parenting order in contravention proceedings?

If the court decides that you have breached a parenting order without a reasonable excuse there are various things it can do. The court may order that you go to a parenting program. Parenting programs help you to focus on what your child needs and to work out ways to sort out your disputes with the other parent without breaching parenting orders.

The court may also change the parenting orders that are in place or make further orders, for example, orders to give the other parent extra time with the child to make up for the time that parent did not get to spend with the child as a result of you breaching the parenting orders.

If you breach a parenting order more than once, or the court thinks that you are simply ignoring the parenting order, the court can also make you:

  • pay any expenses that the other parent has had to meet because you breached the parenting order (eg travel costs) 
  • pay some or all of the other person's legal costs
  • do community service work 
  • be put on a bond
  • pay a fine, or
  • go to jail

What happens if I don't give my child back after spending time with me?

If you keep your child for longer than has been agreed or longer than a parenting order says without the agreement of the other parent, the other parent can apply to the Family Court for a recovery order to get the child back from you. A recovery order can be made whether or not there are parenting orders in place. If the court makes a recovery order, the police can come and take the child from you and return the child to the other parent.

For further information, see Recovery orders.

If you have kept your child because you think they will not be safe with the other parent if you return them, you should get urgent legal advice.

What happens if my child is not returned from spending time with the other parent?

If your child is kept by the other parent for longer than has been agreed or longer than allowed by a parenting order and you have not agreed to this, you can apply to the Family Court for a recovery order. You can do this whether or not there are parenting orders in place. If there is a risk to the child's safety, the Family Court can make urgent orders. If your child is not returned, you should get legal advice as soon as possible. Any delay can affect when, if and how the court orders the return of your child.

For more information see Recovery orders.

What should I do if our parenting orders are no longer working?

See What if I want to change my parenting orders? under Parenting orders.  It is important not to simply stop following parenting orders without the other parent’s agreement, as they may start contravention or enforcement proceedings, or seek Recovery orders.

What if we have made a different arrangement from the parenting orders made by the court using a parenting plan?

If your parenting orders were made on or after 1 July 2006 (for children of a marriage) or on or after 15 July 2006 (for children of a de facto relationship), a parenting plan made after that date will vary (change) those parenting orders in relation to the same issues. The only time that a parenting plan will not vary parenting orders is where the Family Court specifically states in the parenting orders that a parenting plan cannot vary the parenting orders.

For more information, see Parenting plans and Parenting orders.

Can I breach a parenting plan?

A parenting plan is not an order made by a court. It is an agreement made between parents. You cannot go to the court to make the other parent comply with a parenting plan.

However, if you do not stick to the parenting plan the other parent might go to the court and ask for a recovery order based on what was agreed in your parenting plan. Although the court will not enforce the parenting plan itself, it will consider what was agreed in the parenting plan when it decides what orders to make.

For further information, see Parenting plans and Recovery orders.

Where can I get more information?

 

Last reviewed: 22/10/2012

Last modified: 7/10/2015 5:12 PM

Disclaimer

The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.