Family Law Parenting Order Contraventions

15 May

What happens if you have family law orders in place, but they’re not being followed?

If interim or final parenting orders, made by the court or by consent, have been entered into by you and your ex-partner, each party must reasonably comply and follow the orders. If it is alleged that one of the parties has contravened the order without a reasonable excuse, a contravention application to the Federal Circuit and Family Court of Australia (FCFCOA) can be made. The process and law on contravention of parenting orders can be complicated, and it is recommended that you seek our legal advice.

Recently, the Full Court of the Family Court of Australia highlighted the importance of all parties complying with parenting orders in the case of Paige & Bellanger [2026] FedCFamC1A 59. Not only are parties to the orders required to maintain compliance but parties who know that a parent is bound by orders, must also ensure they comply or encourage the parent to comply with the orders.

What is a contravention application and how do you file an application?

Similar to an initiating application in family law proceedings, if you are intending to file an application for contravention of orders, you must attend family dispute resolution unless an exemption applies. By attending dispute resolution, this allows both parties to work through the misunderstandings of the orders and limit the issues in dispute.

If you and the other party cannot reach a resolution with the assistance of a family dispute resolution practitioner, you may choose to file an application to the court. When filing your application, you should also file a supporting affidavit that sets out the necessary information to assist the court in making the orders sought, a certificate from the registered family dispute resolution practitioner or an affidavit of non-filing of family dispute resolution certificate and a copy of the orders that have been contravened.

When completing your affidavit, it is important that you include clear and specific details of the acts which you allege the other party has done to contravene the orders, provide evidence that the other party is aware of the orders and state whether a court has previously found that the other party has contravened orders without a reasonable excuse. In your application you must only include the most serious and clear contraventions. We recommend that you do not include more than 10 contraventions and provide clear particulars on how the orders were contravened as well as providing clear details of how you attempted to comply with the orders despite the other party’s contravention.

Given contravention proceedings are of a quasi-criminal nature, if your application does not comply with the Family Law Rules, the Registrar may not accept your application. It is important that if you are not sure about the process, you seek legal advice from an experience legal practitioner.

What happens once the application has been filed?

Once your application has been accepted for filing, you must personally serve the documents on all parties of the proceedings. If you are a respondent to contravention proceedings, while you can choose to not make submissions or file response material, you are required to file a notice of address for service with the FCFCOA.

The respondent to contravention proceedings has a right to not participate or make any submissions in relation to the application however, at the first return date, which is scheduled as near as practicable to 14 days after filing, a Contravention Registrar may do any or all of the following:

Ask if the Respondent concedes that orders have been contravened or if they have a reasonable excuse for non-compliance?
If the Respondent intends to defend the application, make orders that the respondent prepare, file and serve an affidavit that sets out the evidence they intend to rely upon.
Consider the number of alleged breaches and if the counts should be reduced.
Advise the parties of costs, penalties or sanctions that may be imposed.
Refer the parties to participate in counselling, dispute resolution or another course, program or service.
Identify the outcome that the applicant is seeking.
Reaffirm the best interests of the children and consider whether there should be orders for the parties to attend a parenting program, make up time or a variation of parenting orders, as no finding of a contravention is required for such orders to be made.
Identify whether there are ongoing proceedings. If there are ongoing proceedings, the court may determine that the issues can be addressed as part of the existing proceedings.

The Registrar will explore and assist the parties in determining if a resolution is possible without the parties going through further litigation, which may include assisting with varying the orders through negotiations or referring the parties to dispute resolution.

If the parties cannot reach a resolution, and the Registrar determines that a final hearing is required, they will try and list the matter for a final hearing as close to 12 weeks from the date that the application is ready to proceed before a Judge. Alternatively, the application may be given priority and listed before a Senior Judicial Registrar or Judge in matters of urgency having regard to the circumstances of the matter.

What is a reasonable excuse?

When making an application, you must be able to prove that the other party intentionally failed to comply with the orders or that they made no reasonable attempt to comply with the orders. If the respondent claims and is able to prove on the balance of probabilities that they had a reasonable excuse for contravening the orders, the court may determine that there was no contravention.

Under section 70NAD of the Family Law Act 1975 (Cth), a person would have a reasonable excuse if at the time of the contravention they did not understand the obligations that were imposed by the order, they reasonably believed that their actions were necessary to protect the health and safety of the child or for any other circumstances that the court thinks amounts to a reasonable excuse.

What happens if there is no reasonable excuse for the contravention?

If the court finds that a party has contravened the parenting orders without having a reasonable excuse, the court may make the following orders:

The respondent be required to enter into a bond which may include attending appointments with a family counsellor, family dispute resolution or being of good behaviour;
An order requiring the respondent to pay the applicant’s legal costs incidental to the proceedings;
An order facilitating “make up time” between the children and the applicant; or
An order imposing a fine or a term of imprisonment.

A party who is not explicitly bound to parenting orders, may also have been found to contravene parenting orders. In the recent decision of Paige & Bellanger, the Full Court found that a grandmother, who aided and abetted in the father’s abduction of the children from their mother, complicitly contravened parenting orders. While the grandmother was not personally bound by the orders, she knew that the father was bound by the orders and nevertheless intentionally assisted him in breaching the orders. The grandmother was sentenced to a term of imprisonment due to her contravention of the parenting orders.

The process for making a Contravention Application can be difficult and we If you are experiencing issues in relation to compliance with parenting orders and are considering filing a Contravention Application, please reach out to our team who can assist you with this process.