What Happens If Parenting Orders Are Breached in Australia?
If you have a parenting orders in place, you expect it to be followed. These orders are legally binding and are meant to provide structure and stability for your child after separation.
But what happens when one parent doesn’t stick to them?
In Australia, breaching a parenting order is taken very seriously under the Family Law Act 1975, and there are clear steps and consequences outlined for non-compliance.
Key Takeaways
Before diving into the nitty-gritty of legal processes, let's take a quick look at the essentials. Understanding the basics of what happens when parenting orders are breached can make it easier to navigate the next steps with confidence.
Legally Enforceable: Parenting orders are binding under the Family Law Act 1975 - non-compliance can lead to serious legal consequences.
Common Breaches Include: Refusing scheduled visits, withholding the child beyond agreed times, moving interstate without consent, and failing to share important information.
Court Actions Are Real: Penalties range from make-up time and fines to community service, and in extreme cases, imprisonment.
Reasonable Excuses Exist: Health emergencies, safety concerns, or mutual agreements (with proof) may be considered valid by the court.
Enforcement Options Available: Document breaches, attempt mediation, and if unresolved, file a Contravention Application with the court.
With a clear understanding of how breaches are handled, you're better equipped to protect your parenting rights and your child's well-being.
Now, let's explore the specifics of how the law addresses these situations.
What Are Parenting Orders?
Parenting orders are legally enforceable arrangements made by the Federal Circuit and Family Court of Australia. They outline the responsibilities and expectations for each parent, covering conditions of parenting arrangements like:
Where the child lives and who they live with
When, where and for how long the child spends time with each parent
How parental responsibilities are divided
Communication arrangements with the child
General aspects of the child's care and development
These orders can be made in two ways:
Through a consent order, if both parents agree on the terms.
Through a court order, if an agreement can't be reached, the court decides.
It’s important to understand that once a parenting order is in place, it’s legally binding. This means you are obligated to follow it, and encouraging your child to comply is part of that obligation.
What Counts as a Breach of a Parenting Order?
A breach of a parenting order happens when one parent fails to follow the terms set out in the legally binding order, whether deliberate or otherwise. Parenting orders are established to provide structure, security, and clarity for child custody after separation.
When these orders are ignored or not followed as instructed, it disrupts that stability and can have significant legal consequences.
Here’s a look at the most common ways parenting orders are breached:
1. Refusing Scheduled Time with the Child
Parenting orders clearly outline when each parent is meant to spend time with the child. If one parent:
Blocks scheduled visits without a valid reason,
Cancels arrangements last minute out of spite or inconvenience, or
Prevents contact during agreed-upon holiday periods;
… This is considered a breach.
Example: Sarah has court-ordered time with her son every second weekend. Her ex-partner, Tom, refuses to allow the visits, claiming their son "doesn’t want to go," despite no evidence of distress or safety concerns. This is a breach of the parenting order.
2. Not Returning the Child on Time
When parenting plans specify drop-off and pick-up times, these times need to be respected and adhered to. A breach occurs when:
The child is returned late without notice or agreement,
One parent withholds the child for extra days, or
The child is deliberately kept for holidays or special occasions outside of the agreed terms.
3. Withholding Important Information
Parenting orders often include requirements for both parents to share critical information about the child's well-being.
This includes updates on their health and medical conditions, details about their educational progress and school events, as well as any significant life changes such as moving house or changing schools.
If a parent fails to provide this information or deliberately hides it, they are in breach of the parenting order.
4. Relocating the Child Without Consent
If a parenting order specifies where a child is to live, moving them to a different location (especially interstate or overseas) without agreement from the other parent or the court is a significant breach.
Example: Michael’s parenting order states his children are to live in Melbourne and visit him every fortnight. His ex-partner moves them to Brisbane without consultation or court approval, making it almost impossible for him to maintain regular contact. This relocation is a serious breach of the order.
5. Ignoring Parental Responsibilities Outlined in the Order
Parenting orders don’t just cover time spent with the child; they also define parental responsibilities. If one parent:
Fails to participate in decision-making for important matters (like education or medical treatment),
Neglects agreed responsibilities (such as attending school events or medical check-ups),
Or blocks the other parent from involvement in major decisions,
…This can be considered a breach.
6. Interfering with Communication Rights
If the parenting order grants a parent the right to regular phone calls, video chats, or other forms of communication with their child, blocking or monitoring these interactions without a valid reason is a breach.
7. Manipulating the Child Against the Other Parent (Parental Alienation)
While not always explicitly outlined in parenting orders, attempts to turn the child against the other parent or speak negatively about them can be seen as obstructive behaviour that breaches the spirit of the order.
Example: One parent constantly tells the child false or exaggerated stories about the other parent to discourage contact, making visitation difficult or upsetting for the child.
Understanding Intent vs. Genuine Mistake
It's crucial to distinguish between a genuine mistake (such as forgetting an agreed-upon time once) and deliberate non-compliance. Courts typically look for patterns of behaviour or significant disruptions that affect the child’s relationship with the other parent.
If the breach is found to be intentional and ongoing, legal enforcement actions are far more likely.
Not sure about your next legal steps? Chat with our expert family lawyers to discuss your options today!
What Happens When a Parenting Order Is Breached?
If a parenting order is breached, you can file a Contravention Application with the court. This is essentially a legal request for the court to review the breach and take action.
Here’s what might happen next:
The Court Considers the Allegations
The court will assess the claims and decide whether the breach is valid. They may conclude:
There was no contravention (no breach was proven).
There was a contravention, but with a reasonable excuse.
There was a serious breach without a reasonable excuse.
Possible Court Actions
If the breach is confirmed, the court has several options:
Make-Up Time
If you missed out on time with your child, the court may order extra time to make up for the loss.
Compensation for Costs
If the breach caused financial loss (e.g., missed work, travel costs), the court may order compensation.
Community Service or Bonds
The non-compliant parent may be ordered to complete community service or enter into a bond as a promise to follow the orders moving forward.
Parenting Programs
The court can require the parent to attend a post-separation parenting program to understand their obligations.
Fines and Legal Costs
The court may order the non-compliant parent to pay fines or cover legal costs for the other party.
Imprisonment
In extreme cases where breaches are ongoing and intentional, imprisonment is a possibility, though this is quite rare.
Reasonable Excuses for Non-Compliance
There are some situations where a breach of a parenting order may be considered a reasonable excuse. According to Australian family law, this includes:
Safety Concerns
If complying with the order would place the child or the parent at risk of harm, such as in cases of family violence.Health Emergencies
If there was a serious illness or an emergency that made it impossible to follow the order.Mutual Agreement
If both parents agreed to alter the arrangement for a specific time, though it's always better to have this in writing.
However, these excuses must be proven in court, and the judge will evaluate whether they are legitimate and justifiable.
How to Enforce a Parenting Order
If a breach has occurred and you want to take action, here’s what you need to do:
1. Document the Breach
Keep detailed records of missed time, communication attempts, and any refusal to comply with the order.
2. Attempt Mediation First
Before heading to court, you’re generally required to attempt mediation to resolve the issue. This is sometimes referred to as Family Dispute Resolution (FDR).
3. File an Application
If mediation fails, you can file an application with the court. You’ll need the following:
o The Application (Contravention form)
o A copy of the parenting order
o An affidavit outlining the breach
o A Section 60I Certificate if mediation was unsuccessful or not required
What Happens Next?
Once you file your application, a court date will be set, and both parties will present their cases. The court will then decide whether there was a breach and what consequences, if any, should follow.
Don’t leave your parenting rights to chance. If you’re facing breaches of a parenting order, Hamilton Thomas Lawyers is here to offer the guidance and support you need to protect your family.
Contact us today for practical advice and strong representation that puts your child’s well-being first.
