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How are parenting orders enforced?

Parenting orders create legal obligations and are legally enforceable by the parties. The Court expects that all parties will follow parenting orders.

The parties are usually given a copy of the Court’s information sheet, Parenting orders – obligations, consequences and who can help.

If one party fails to follow a parenting order (that has not been changed by a subsequent parenting plan [Family Law Act 1975 (Cth) s 70 NBB]), the other party may file either:

  • an enforcement application, or
  • a contravention application

[see Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) r 11.64].

There is no fee to lodge either of these applications, but cost orders can be made against an applicant where a contravention, for example, is not established.

It is important to obtain legal advice before making any application.

Which type of application

If the party seeking to enforce the parenting order does not want the other party to be punished for failing to follow it and simply wants make-up time with the child or wants to enforce handover, they may file an enforcement application rather than a contravention application.

If the party seeking to enforce the parenting order also wants the other party punished for failing to follow the orders, then a contravention application may be more appropriate.

If one party removes a child and refuses to return a child, an application for a location and recovery order may be more appropriate, see ‘What if one parent refuses to return the children?’.

See further information about enforcement and contraventions on the Court’s website:

Children: Compliance and enforcement

How do I apply to the Court when parenting orders have been contravened (breached) or not complied with?

Both enforcement and contravention matters may be referred to family dispute resolution, counselling, or specified parenting programs [Family Law Act 1975 (Cth) s 13C].

Enforcement Applications

An Application - Enforcement needs to be filed and served together with a prescribed brochure and an affidavit with a copy of the orders to be enforced. Further documents relating to pre-action procedures may also be required.

The Registry Manager must fix a date for hearing that is as near as practicable to 14 days after the day of filing [Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 11.66].

Contravention Applications

Before filing

It may not be necessary to obtain a section 60I certificate from a family dispute resolution practitioner before filing a contravention application where an exception applies, such as risk of child abuse or family violence, or urgency. There is a further exception where:

  • the application is made in relation to a particular issue, and
  • the parenting order contravened was made within the last 12 months, and
  • the party has behaved in a way that shows a serious disregard for their obligations under the order [Family Law Act 1975 (Cth) s 60I(9)(c)]

Burden of proof

The party bringing the application will need to prove the contravention. An order is contravened where the party:

  • intentionally fails to follow it, or
  • makes no reasonable attempt to follow it, or
  • intentionally prevents another person (who is bound by the order) from following the order, or
  • encourages or helps a person (who is bound by the order) to contravene it

Standard of proof

For the purposes of serious penalties (such as a bond, a fine, community service or imprisonment), the applicant will need to prove the contravention beyond reasonable doubt [s 70NAF(3)]. This is the same standard of proof as in criminal matters.

For less serious penalties, the contravention need only be proved on the balance of probabilities, that is, that the contravention is more likely than not to be true.

Reasonable excuse

The other party may admit the contravention but defend it on the basis that they had a “reasonable excuse”.

A party may have a reasonable excuse for contravening an order if [s 70NAE]:

  • they did not understand the obligations imposed by the order, and
  • the Court is satisfied that they ought to be excused

or

  • they believed they had to contravene the order to protect the health or safety of themself or their child, and
  • they did not contravene the order for longer than was necessary.

There may be other circumstances where the Court will be satisfied that a party had a reasonable excuse to contravene a parenting order.

The party will need to prove they had the reasonable excuse on the balance of probabilities [s 70NAF(1)]. This means that the excuse is more likely than not to be true.

Possible orders the Court can make

Where there is no contravention

If the Court finds that there was not any contravention, the Court may make an order that the applicant pay the other party’s legal costs [s 70NCB]. The Court may also change the existing parenting orders [s 70NBA].

Where there is contravention, but also a reasonable excuse

If the Court finds that there was a reasonable excuse for the contravention, but the contravention resulted in the applicant losing time with the child, the Court must consider making an order compensating the applicant for time lost with make-up time [s 70NDB].

If no order is made compensating the applicant for lost time the Court may make an order that the applicant pay the other party’s legal costs [s 70NDC]. The Court may also change the existing parenting orders [s 70NBA].

Where there is a contravention without reasonable excuse

If the Court finds that there was no reasonable excuse for the contravention, the way it is dealt with depends on its seriousness.

It will be less serious if the Court has not already previously made orders or adjourned a matter in relation to contravention by the party. However, if the contravention shows a serious disregard for the party’s obligations under the parenting order, the Court may treat it more seriously anyway.

Less serious contraventions may be dealt with by way of orders for [s 70NEB]:

  • the party to attend a post-separation parenting program
  • make-up time
  • an adjournment for an application to change the parenting orders
  • the party to enter into a bond (with conditions) or pay a fine
  • costs of either party to be paid by the other

More serious contraventions may be dealt with by way of orders for [s 70NFB]:

  • make-up time
  • the party to enter into a bond (with conditions)
  • the party to undertake community service
  • the party to pay a fine
  • the party to serve a period of imprisonment (but not in relation to child maintenance or support)
  • the party to pay the costs of the applicant

Changing court orders

Whether or not a contravention is proved or there was reasonable excuse, the Court has the power to change existing parenting orders as part of contravention proceedings [s 70NBA]. However, there usually needs to be a significant change in the circumstances before a final order is changed.

Filing and listing of contravention applications

The Federal Circuit and Family Court of Australia has a dedicated electronic National Contravention List. Contravention applications will be given their first court date before a Contravention Registrar within 14 days of filing. A Contravention Application needs to be filed and served together with additional documents such as an affidavit, a copy of the orders alleged to be contravened, and section 60I certificate or affidavit relating to exemption from family dispute resolution. A Genuine Steps Certificate, may also be required, in accordance with pre-action procedures, see What needs to be done before applying?

For more information, see also the Court’s National Contravention List Practice Direction

How are parenting orders enforced?  :  Last Revised: Tue Nov 16th 2021
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.