While it is always wise to abide by the terms of a Parenting Order, there are unfortunately times when the terms or conditions of an Order are breached.  With the recent media coverage regarding the use of warrants to uplift children, it seems a good time to look at what the Court can do when someone breaches a Parenting Order.

There are a number of different ways the Court can respond to a breach of a Parenting Order.  The options available to the Court under the Care of Children Act are:

  1. Admonishment – the Court can admonish (formally reprimand) a party who has breached a Parenting Order.  The impact of an admonishment is both a warning to the party that they need to abide by the terms of the Order, as well as creating a formal record of the party’s behaviour.  In giving an admonishment a Judge might also advise a party that further breaches will result in more serious enforcement steps being taken.

  2. Bond – The Court can order a party to enter into a bond, where they must pay a certain amount of money in to the Court.  The Court will set out a number of conditions, and if any of those conditions are breached then some or all of the money paid will be forfeited to the Crown or used to meet the costs of another party to the Order.

  3. Vary or Discharge the Order – The Court can also vary the terms of a Parenting Order, or even discharge it altogether, as a response to one or more breaches of that Order.  For example, the Court could add extra conditions, reduce the amount of time the child or children was to spend with one of the parties, or even completely flip the care arrangements, so that the child goes from living primarily with one party to primarily with the other.

  4. Issue a Warrant – In more serious cases the Court can issue a warrant to enforce the terms of an order.  This would usually involve the police or a social worker going and uplifting the child or children from one party in order to return them to the other parent.  This is generally a last-resort in situations where one party is refusing to send/return the child or children to the other parent, and either nothing else has worked to enforce the return, or there are safety concerns with the children remaining with that parent.

  5. Contempt of Court – In some limited and serious cases the Judge might also feel that it is necessary to punish a party for contempt of Court for a deliberate breach or obstruction of a Parenting Order.  In very serious cases this can result in a period of imprisonment.

In deciding on whether to formally respond to a breach of a Parenting Order the Court must consider a number of issues. 

The most important consideration is whether it is in the best interests of the child or children for the breach to be addressed formally. 

The Court will also look at the seriousness of the breach, whether it is a single breach or part of a pattern, and whether the proposed actions are likely to have the desired effect of reducing the likelihood of further breaches.  Additionally when considering a bond the Court must consider the ability of the breaching party to pay a bond.

For a party wanting to take steps to deal with a breach of a Parenting Order, an application can be made to the Family Court seeking one or more of the above sanctions.  Generally such applications will be on notice, meaning the other party or parties will have a chance to respond to the application.  In fairly rare cases, where there is a risk to safety or other urgent need, it is possible to apply without notice for a warrant to uplift the child or children. 

It is also not uncommon where a warrant is considered necessary for a Judge to issue a warrant, but for it to “lie in Court” for a certain amount of time (for example 48 hours).  This means that the parent who is in breach of the Order can be made aware that a warrant has been issued, but is given a period of time to voluntarily fix the breach before the warrant is actually used.

If a party is unhappy with the terms of a Parenting Order, they should consider their options to either try to agree with the other party or parties to the order on an informal variation, or seek to change the Order itself.  Ignoring and breaching a Parenting Order can result in penalties, including financial penalties, the issuing of a warrant and even a possible term of imprisonment in the very worst cases. 

For those parties who have had to deal with another party’s breach of an Order, it is helpful to know that there are things that the Court can do in response.

David Tyree
Family Lawyer
Wellington