Parenting order breaches

When the Family Court makes parenting orders, including consent orders, it expects everyone involved in the case to follow those arrangements.

You must do everything a parenting order says. This means taking all reasonable steps to follow the order. The law also says that you cannot make it harder for other people to comply with parenting orders. There can be serious consequences for breaching court orders, or helping someone else to breach them.

If you have not followed what a parenting order says to do, the other parent (as well as other people included in the orders) can make an application to the Family Court. The court has the power to enforce parenting orders, vary the existing arrangements, compensate people who missed out on spending time with the children, and punish people who have seriously broken or ignored court orders. Find out:

  • how parenting orders could be breached
  • what you can do if you think parenting orders are not being followed, and
  • what the Family Court can do if you have not followed parenting orders.

What sorts of things might breach parenting orders?

Some examples of how parenting orders are not followed include:

  • If the orders say a child is meant to live with someone (either all the time, or at certain times):
    • taking or removing a child from their care during that time, or
    • not delivering or returning a child to someone's care during that time.

  • If the orders say a child is meant to spend time with someone:
    • stopping or hindering the child from spending time with them, or
    • interfering with how they benefit from spending time together.

  • If the orders say a child is meant to communicate with someone:
    • stopping or hindering the child from communicating with them, or
    • interfering with how they communicate with each other.

  • If the orders say a person has parental responsibility for a child:
    • stopping or hindering the person from carrying out that responsibility.

Deciding if someone has breached parenting orders depends on exactly what the orders say. It can be more complicated if you have made a parenting plan that changes the arrangements set out in the parenting orders.

You should get legal advice if you think someone has breached parenting orders, or if someone is alleging that you have breached parenting orders.

What can I do if someone is not following the parenting orders?

There are two ways to have parenting order breaches dealt with by the Family Court.

You can apply to enforce previous parenting orders as part of an application in a that case.

  • The court can get the other person to follow the parenting orders, remind them of their obligations, and warn them about the potential consequences of not following the arrangements in the future.
  • The court can give you extra time with the children if you have missed out on spending time or living with the children.
  • The court cannot make orders against the other person to punish them for their actions.
  • You do not need to participate in Family Dispute Resolution before you apply to enforce parenting orders in court.

You can make a contravention application against the other person.

  • The court can make orders to enforce the parenting orders, including compensating you for missing out on time with the children.
  • The other person can have orders made against them as a consequence or punishment for breaking (contravening) the parenting orders.
  • Before you can file the application, you need to comply with the requirements about participating in Family Dispute Resolution, or show that an exemption applies to your situation. One possible exemption might be that you are making the contravention application because the other person has seriously ignored or broken a court order that was made in the last 12 months.

You should get legal advice before making a contravention application. If the court does not make any orders in your favour or against the respondent, and you have previously brought unsuccessful contravention proceedings against the same person, you could be ordered to pay some or all of the other person's legal costs of the application. 

Someone has made a contravention application against me. What can the Family Court do?

The court must first decide if you contravened the parenting orders. If you did, the court has the power to make orders against you (including orders to pay legal costs) unless:

  • you had good reason to think you needed to disobey the parenting order to protect someone's health or safety (including the children or the other parent), and the breach did not last longer than was necessary to protect that person, or 
  • the main reason you did not follow the orders was that you did not understand your obligations at the time, and the court thinks your behaviour should be excused.

If you do not have a reasonable excuse for contravening the orders, the court can order you to do different things, depending on the seriousness of the breach and whether you have previously broken parenting orders. The powers of the court can include making you:

  • attend a post-separation parenting course to help you focus on your children's needs, to understand what the orders involve, and change your behaviour so you don't breach the parenting orders in the future
  • enter into a good behaviour bond, which can include making you attend family counselling, FDR, or appointments with a family consultant
  • reimburse the other person for expenses they had to pay as a result of missing out on time with the children
  • pay some or all of the other person's legal costs of the contravention application
  • do community service work 
  • pay a fine, or
  • serve a sentence of imprisonment.

If the other person missed out on spending time or living with the children because of the contravention (even if you had a reasonable excuse), the court must consider giving the other person extra time with the children to compensate them for that lost time.

In every contravention application, the court can change the original parenting orders if that is in the children's best interests, even if you have not breached the orders. 

 

More information

Family Court of WA

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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.