Compliance with parenting or child-related orders
When a parenting or other child-related order is made, each person affected by the order must comply with (follow) the order.
You must do everything the order says. This includes taking all reasonable steps to ensure that the terms of the order take effect.
You must also positively encourage your child (or children) to comply with the orders. For example, where the order states your child is to spend time with another party, you must not only ensure that the child is available, but must also positively encourage them to do so, even if the child says they do not wish to. There are agencies in the community that can help you and your family adjust to and comply with the order. See Get help.
The order remains in force until a new parenting order or parenting plan changes it in some way.
Even if the needs or circumstances of you, the child or the other party change, the court order applies until it is formally changed by a court or, in some situations, you enter into a parenting plan with the other party. Sometimes people talk to each other about changing arrangements set out in a parenting order. It is important to note that these conversations, even if you and the other party agree, will not change the order. For more information, see Changing parenting arrangements.
TIP: A parenting plan is different from a parenting order. A parenting order is made by a court. A parenting plan is a written agreement that sets out parenting arrangements for children. It is not legally enforceable, although its contents can override part of a court order, so that part of the court order is no longer enforceable. Before entering into a parenting plan, you should seek legal advice.
How is an order contravened?
A person to whom the order applies contravenes (breaches) an order, which has not been altered by a parenting plan, if they:
- intentionally fail to comply with the order, or make no reasonable attempt to comply with the order
A person who is not a person to whom the order applies (and the person is not a child) contravenes an order if they:
What is a reasonable attempt to comply?
When a parenting or other child-related order is made, each person affected by the order must comply with the order. This includes taking all reasonable steps to comply with the order.
For example, if a parenting order specifies that your child is to live with you and spend certain time with the other parent, you have an obligation to make sure that your child actually spends that time with the other parent, even if the child says that they do not want to spend time with the other parent.
What is a reasonable excuse?
If a court decides a person has failed to comply with an order, it will consider whether the person had a reasonable excuse for contravening the order. Some examples of reasonable excuses that may satisfy a court include:
- the person did not understand the obligations imposed by the order and the Court considers the person ought to be excused in respect of the contravention, or
- both:
- the person reasonably believed that the actions which gave rise to the contravention were necessary to protect the health and safety of a person, including the person who contravened the order or the child, and
- the contravention did not last longer than was necessary to protect the health and safety of the person who contravened the order or the child.
The other party has not complied
If you allege that another person has contravened an order without a reasonable excuse, you can:
- seek legal advice
- attend Family Dispute Resolution (FDR) counselling, and/or
- apply to the Court by filing an Application – Contravention, and supporting evidence.
Family dispute resolution
Family dispute resolution can help you and the other party work through your disagreement, or any misunderstandings about the orders. Resolving issues this way is less formal than going to court, and should cost less in money, time and emotion.
I want to apply to the Court about the alleged contravention
Before you apply to the Court in relation to an alleged contravention, you usually have to participate in FDR, unless an exemption applies.
Except in limited circumstances, the Family Law Act 1975 requires you to obtain a certificate from a registered FDR practitioner before you file an application for an order in relation to a child under Part VII of the Family Law Act 1975, including in relation to an alleged contravention of a parenting order.
For further details about compulsory FDR and exemptions, read the fact sheet Compulsory pre-filing family dispute resolution – Court procedures and requirements.
Contravention application
You can file an Application – Contravention if you:
- allege that a court order (including a bond, agreement or undertaking) affecting a child has been contravened by a party to the proceedings, or
- allege that a party to the proceedings has prevented a recovery order from taking effect.
For more information about recovery orders, see Recovery orders.
A National Contravention List has been established to deal with all contravention applications filed in the Court. Please refer to the Family Law Practice Direction – National Contravention List for further information about what documents to file with the Application – Contravention and details about the National Contravention List.
For more information and a step-by-step guide about applying to the Court in relation to an alleged contravention see How do I apply to the court when parenting orders have been breached or not complied with?
IMPORTANT NOTE: Contravention proceedings are ‘quasi-criminal’ proceedings. This means that they are similar to criminal proceedings, so if the Court finds that the allegations you make are proven, there may be serious penalties for the person who contravened the parenting order. Each alleged contravention in an Application – Contravention is similar to a criminal charge.
Because of this seriousness, the Court requires strict compliance with the applicable rules, which are found in Division 11.2.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. If you do not comply with these rules, your Application – Contravention may not be accepted for filing.
I have been served with an Application – Contravention
If you have been served with an Application – Contravention which alleges that you have contravened a parenting or other child-related order, you should seek legal advice as soon as possible.
Contravention proceedings are ‘quasi-criminal’ proceedings. This means that they are similar to criminal proceedings, so if the Court finds that the allegations against you are proven, it may impose penalties on you, including a fine, a bond, or imprisonment.
Do I have to file any documents in response?
Yes. You, or your lawyer, must file a Notice of address for service.
You do not have to file any other document, however you may file an Affidavit – Family law and child support.
Due to the serious consequences you may face if the Court finds that you have contravened a parenting or other child-related order, you should seek legal advice before you decide whether or not to file an Affidavit – Family law and child support.
Do I have to attend court?
Yes. You must attend court for each hearing in the contravention proceedings, or be represented at each hearing by a lawyer. If you fail to do so, the Court may, amongst other things, determine the Application – Contravention without you, or issue a warrant for your arrest (see rule 11.68 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021).
You will be notified of the date, time and place of the first hearing by the Court when your Application – Contravention is accepted for filing.
What is the standard of proof in contravention proceedings?
‘Standard of proof’ means how certain the Court needs to be to find that an alleged fact is true. The standard of proof which applies to a contravention depends on the order the Court is being asked to make (see section 70NAE of the Family Law Act 1975).
In most cases, the standard of proof is the ‘balance of probabilities’. This means that the Court can find a fact proved if the fact is more likely to exist than not.
The Court may only impose the most serious penalties – a prison sentence or a fine – if the allegations are established ‘beyond reasonable doubt’. This is the same standard of proof required in criminal matters.
Who bears the burden of proof?
The party who has the ‘burden of proof’ is the party who is required to prove an allegation. The applicant bears the burden of proving each alleged contravention.
If the respondent alleges that they had a reasonable excuse for a contravention, the respondent bears the burden of proving the existence of that reasonable excuse.
Penalties for failing to comply with a parenting or other child-related order
A court can only penalise someone for failing to comply with a parenting or child-related order, which has not been altered by a parenting plan, if another person files an application alleging the person did not comply with the order.
After considering all the facts of the case and applying the law, the Court may decide:
- the alleged contravention was not established
- the contravention was established but there was a reasonable excuse
- there was a contravention without reasonable excuse.
The Court does not need to find that you contravened a parenting or other child-related order to make certain orders, including an order:
- compensating for time lost with a child as a result of the contravention (make-up time parenting order)
- varying or suspending a parenting order, or
- for you to attend a post-separation parenting program.
If a court finds that you have failed to comply with a parenting or other child-related order without reasonable excuse, it may impose a penalty. Depending on the particulars of the case and the type of contravention, the Court may make any of the above orders, or:
- require you to enter into a bond
- order you to pay all or some of the legal costs of the other parties
- order you to pay compensation for reasonable expenses lost as a result of the contravention
- order you to pay a fine
- order you to a sentence of imprisonment.
In addition to these orders, a court may also adjourn the case to allow you or the other party to apply for a further parenting order.
The penalties are listed in Division 13A of Part VII of the Family Law Act 1975.
More information
For a summary of the information on this page, see the following fact sheets:
Legal advice
You are not required to be represented by a lawyer, or to seek legal advice, before applying to the Court, or if you have been served with an application. However, family law is complex, and getting legal advice will help you to better understand your rights and responsibilities.
Noting that the Court may impose serious penalties if court orders are not complied with, you should seek legal advice before you file an Application – Contravention.
For information on how to get legal advice, see Legal Help.
Practice directions
Practice directions are procedural guidelines issued by the Court. They complement legislation, rules and regulations. They provide specific direction about the practice and procedure that must be followed in certain types of proceedings.
Practice directions are issued by the Chief Justice/Chief Judge upon advice of judges of the Court, pursuant to the Court’s inherent power to control its own processes, as well as the power under the Federal Circuit and Family Court of Australia Act 2021 for the Court to give directions about the practice and procedure to be followed in a proceeding.
In general, practice directions are issued to:
- complement particular legislative provisions or rules of court
- set out more detailed procedures for particular types of proceedings, and
- notify parties and their lawyers of matters which require their attention.
Below are links to the practice directions that apply to this area of law:
- Family Law Practice Direction – Parenting proceedings (FAM-PARENTING)
- Family Law Practice Direction – National Contravention List (FAM-CONTRAVENTION)
***Disclaimer – The above information was taken from the Federal Circuit & Family Court of Australia website as accurate in July 2024. If any changes are made by the court from that date they may not be reflected in this post
