If a parent fails to comply with a parenting order, the Court can take a range of steps to enforce it — up to and including fines, community service, and in serious cases, imprisonment. However, simply obtaining an order doesn’t guarantee compliance, and further court intervention is often required. Understanding the enforcement process before you need it is important.
What is a parenting order?
A parenting order is a legally enforceable decision made by a court about with whom a child lives, spends time, and communicates. Unlike a parenting plan, which relies on the ongoing agreement of both parents, a parenting order carries legal consequences if it is not followed. Every person bound by the order is required to take all reasonable steps to comply with it — including actively facilitating the arrangements it sets out.
What constitutes a contravention?
Under section 70NAC of the Family Law Act 1975, a person contravenes a parenting order if they intentionally fail to comply with it, make no reasonable attempt to comply, or intentionally prevent another person from complying. This includes repeatedly failing to allow a child to spend time with the other parent as ordered, making unilateral decisions about a child’s living arrangements, or taking a child interstate or overseas in breach of the order.
A person not directly bound by the order can also contravene it — for example, if they assist or encourage someone else’s non-compliance.
Is there such a thing as a reasonable excuse?
Yes. Section 70NAD of the Family Law Act sets out what constitutes a reasonable excuse for contravening a parenting order. This includes situations where a person did not understand the obligations the order imposed, or where they believed contravening the order was necessary to protect the health or safety of a person, including the child. The burden of raising a reasonable excuse rests with the person who contravened the order.
Important: contravention proceedings are quasi-criminal
This is something many parents don’t realise until it’s too late. Contravention proceedings are quasi-criminal in nature — they are similar to criminal proceedings. If the Court finds that a contravention is established, it may impose serious penalties on the person who breached the order. Filing a contravention application is not a procedural formality; it is the equivalent of laying a charge. Both parties should seek legal advice before taking or responding to these proceedings.
What orders can the Court make?
If the Court is satisfied that a contravention has occurred without reasonable excuse, it has a range of orders available, including:
- Make-up time orders — requiring the non-compliant parent to facilitate additional time to compensate for what was missed. Since May 2024, registrars of the Court have been delegated the power to make make-up time orders, making this remedy more accessible and faster to obtain.
- Variation of the existing orders — the Court can amend the parenting orders to better reflect what is workable and in the child’s best interests.
- Attendance at a post-separation parenting program — the Court can require one or both parties to attend.
- A bond — requiring the contravening party to enter into a bond as a condition of avoiding further penalty.
- Costs orders — requiring the contravening party to pay the other party’s legal costs.
- A fine.
- Imprisonment — where the contravention is so serious that no other penalty is appropriate.
The Court will impose the orders it considers appropriate, having regard to the seriousness of the contravention and, always, the best interests of the child.
What is a recovery order?
A recovery order directs that a child be returned to the parent they are ordered to live with or spend time with. If the order is not complied with, the Australian Federal Police or state and territory police can be involved to physically recover the child. The Court can issue a recovery order where it is satisfied that a parent is deliberately flouting existing parenting orders.
Before you file — the FDR requirement
In most circumstances, before filing a contravention application, you are required to obtain a certificate from a registered family dispute resolution practitioner. There are exemptions — including where there is family violence or an urgent risk to the child — but understanding whether you need this certificate before you file is important. Filing without one when it is required can affect your application.
The enforcement reality
Even with all of these tools available, enforcement can be difficult and emotionally draining. Courts have expressed clear frustration with parents who repeatedly disregard orders. But the process of establishing a contravention, gathering the necessary evidence, and attending proceedings takes time — and throughout that process, the child is affected. Detailed, contemporaneous documentation of every instance of non-compliance will materially strengthen any contravention application.
Questions to consider
- What evidence do I have to demonstrate each specific instance of non-compliance — dates, times, messages, and the impact on the child?
- Have I obtained the required family dispute resolution certificate, or does an exemption apply to my circumstances?
- Do I understand that contravention proceedings are quasi-criminal, and have I sought legal advice before proceeding?
- Is make-up time the most appropriate immediate remedy, or are the circumstances serious enough to seek variation of the orders or penalties?
- What are the likely costs and timeframes involved, and am I prepared for those?