It often occurs that after orders are made, one of the parties asserts that the other party has breached or defaulted in their obligations under the orders. Occasionally both parties assert that the other is in breach of one or more orders.

The Family Law Act 1975 and the Federal Circuit Court of Australia Act 1999, together with the rules made under each of those Acts, make provision for the courts to enforce their orders and to punish a defaulting party for breach of those orders. In Western Australia (WA), for applications concerning married couples the Family Law Act 1975 and the Family Law Rules 2004 apply and for de facto couples and matters concerning ex-nuptial children practitioners should refer to the Family Court Act 1997 (WA) (which contains mirror provisions to those in the Family Law Act) and the Family Law Rules 2004 as applicable in WA (most of the provisions are the same but some provisions are explicitly different).

In the context of enforcement, contravention or contempt, an enforceable or punishable obligation will arise where parties have had court orders made (irrespective of whether the orders made by consent or following litigation) and/or where the parties have entered into a binding financial agreement. The agreement may relate to property division and/or spousal or adult child maintenance and/or child support. The enforcement provisions of the family law courts are not available to enforce the terms of parenting plans.

Parenting orders

There are several options available for a party when the other has breached a parenting order. If an applicant is seeking to ensure the performance of an obligation by a respondent, then the applicant should file an application for enforcement in the appropriate court, with the application supported by Affidavit evidence. In some cases where:

• • it is impractical;
• • the party/ies inadvertently breach the orders; or
• • it is no longer possible to implement the orders,

the court may decide that is in the best interests of the children to alter the original orders to make them more workable. See Variation of primary orders.

If an applicant is seeking to have the respondent punished for failure to comply with an obligation under the orders, then the appropriate application is a contravention application. This is where a finding is sought that the respondent has breached an obligation and that the respondent should be punished for that breach (to deter further breaches). A contravention application is a quasi-criminal application and remedies available include a fine or imprisonment.

If the applicant is seeking a speedy remedy to ensure the resumption of arrangements set out in an earlier order and does not seek the punishment of the respondent (eg, by fine or imprisonment) for the breach, then it is preferable that the applicant file an Application in a Case seeking enforcement rather than an Application for Contravention.

For the principles and procedure to be followed in relation to contravention applications where the obligation alleged to have been breached is in respect of children, see Parenting orders — Family Court and Family Court of WA.

Property orders — Family Court and Family Court of WA

For the principles and procedure to be followed in relation to contravention applications where the obligation alleged to have been breached is in respect of financial matters in the Family Court, see Property orders — Family Court and Family Court of WA.

Property orders — Federal Circuit Court

For the principles and procedure to be followed in relation to contravention applications where the obligation alleged to have been breached is in respect of financial matters in the Federal Circuit Court, see Property orders — Federal Circuit Court.