Why family orders must be followed, and the consequences if you do not

A parenting order sets out who a child lives with, the time the child spends with each parent, and how decisions about the child are made. Orders can be made by consent, when the parents agree and ask the court to make the agreement an order, or by a judge or magistrate after a hearing. Either way, once it is made, an order binds the people it applies to.

In Western Australia, parenting orders are made by the Family Court of Western Australia. For children whose parents were married, the rules on breaching an order are in Division 13A of Part VII of the Family Law Act 1975 (Cth). For children whose parents were never married, they are in Part 5 Division 13 of the Family Court Act 1997 (WA). Both were rewritten recently: the federal rules on 6 May 2024 and the WA rules, which now mirror them, on 10 February 2025. For the federal rules, the court applies those in force when the breach happened, and the WA position is likely to be the same.

If you disagree with the order

Disagreeing with an order is not a reason to ignore it. The proper course is to:

(a) agree a change with the other parent, in a parenting plan, which must be in writing, signed and dated by both parents. A later plan can change how an existing order operates, unless the order says otherwise; or

(b) apply to the court to change the order. The court will ask whether anything significant has changed since the order was made.

What counts as a breach

The law calls a breach a contravention. Under s 70NAC of the federal Act (WA s 205C), a person contravenes an order if they:

(a) intentionally fail to comply with it;

(b) make no reasonable attempt to comply with it;

(c) intentionally prevent someone else from complying with it; or

(d) aid or abet someone else to contravene it.

Some examples:

(a) enrolling a child in a new school without consulting the other parent, where the order provides for joint decision-making on education;

(b) not bringing the child to a handover, or arranging something else for the child at the time the other parent's time was due to start;

(c) keeping a child after the end of the other parent's time;

(d) a relative helping a parent hide where the child is.

A parent is expected to do more than make the child available. Where a child does not want to go, the parent with the child is generally expected to encourage them and take reasonable steps, not leave the decision to the child.

Reasonable excuse

A contravention only leads to a sanction if it was without reasonable excuse. The Act recognises two excuses in particular:

(a) the person did not understand their obligations under the order, and the court thinks they should be excused; or

(b) the person reasonably believed that what they did was necessary to protect the health or safety of themselves, the child or someone else, and the contravention lasted no longer than necessary.

The person who claims a reasonable excuse has to prove it (s 70NADA; WA s 205E). Under (b), a genuine belief is not enough: it must be a reasonable belief, and the response must be no longer than needed. If you hold back a child because you believe they are unsafe, act on that belief quickly and properly. That usually means contacting the police or child protection if the danger is immediate, and applying to the court to change the order.

What the court can do

At any stage, even without finding a contravention, the court can:

(a) order make-up time for time that was missed;

(b) vary or suspend the order; or

(c) order a parent to attend a post-separation parenting program.

If the court finds, on the balance of probabilities, a contravention without reasonable excuse, it can require the person to enter into a bond of up to two years and order them to pay the other parent's reasonable expenses caused by the contravention.

For the most serious cases, where the contravention is proved beyond reasonable doubt, the court can impose a fine or a term of imprisonment of up to 12 months. Imprisonment is a last resort, available only where no other order would be appropriate.

The court can also order a party to pay the other's legal costs. One of the matters it considers is whether the proceedings were necessitated by a party's failure to comply with an earlier order.

Applying in WA

The Family Court of Western Australia has its own form for contravention applications, Form 18, filed with an affidavit setting out the facts. Where the application concerns a parenting order, a family dispute resolution certificate, or an application for an exemption, must usually be filed with it.

Before applying, keep a simple record of what happened and when: missed handovers, messages, and any explanation given at the time.

This article is general information, not legal advice.