A Guide to Parenting Order Violations

| Posted in Family Law, Uncategorised

Table of Contents

Understanding Parenting Order Violations

Let’s begin with the basics of parenting order violations: what are they, and what kinds are there?

What constitutes a breach of a parenting order in Australia?

A breach of a parenting order is when a person bound by the order deliberately fails to follow it. The Family Law Act 1975 explicitly states that not making reasonable efforts to comply with an order is also a breach of a parenting order. Put simply, if you do not do everything the order says, you are considered to have breached a parenting order.

It’s also a breach if someone not bound by the order, like a grandparent or family friend, intentionally assists (or causes) a bound person to contravene a parenting order.

There is an obligation on each parent to positively encourage the child to adhere to the arrangements — simply being passive is not enough.

Are there different types of parenting order violations?

Yes, there are many types of parenting orders, and therefore, there are just as many ways that these orders can be breached. The most common types of parenting order violations are:

How does the Family Court determine whether a parenting order breach is serious?

In order to determine the seriousness of a parenting order breach, the Family Court will consider the intent, the nature of the breach, and any relevant prior history. Under the law, breaches are considered to be either ‘less serious’ or ‘more serious’.

Important factors include the frequency and impact of the breaches. A pattern of violations is viewed as far more serious than an isolated, technical breach. The court also looks at whether the contravention put the child’s well-being at risk or undermined the child’s relationship with the other parent.

Can a parent be penalised for minor breaches of a parenting order?

While a parent can technically be penalised for a minor breach of a parenting order, this is unlikely to happen in practice. Usually, the court’s response will be about preventing future issues rather than about punishing the parent.

If you’ve made a minor breach, you can expect an enforcement proceeding. This is where the court may remind the parent of their obligations, enforce make-up time for the other parent, or vary the arrangements to make compliance easier. They’ll also remind you of the consequences of failing to comply in the future.

The other parent may make a contravention application for a minor breach, but the Court still has discretion over the outcome. Minor breaches are taken seriously, but the Court will make sure to calibrate the response based on the seriousness.

Moving on to a more complex topic: how a family lawyer can help you enforce a parenting order, and what legal remedies are open to you:

What legal steps can I take if the other parent is not following the parenting order?

If the other parent isn’t complying with the orders, you have several escalating steps available:

  1. Attempt communication or negotiation: If it is safe to do so, sometimes a discussion or reminder can resolve misunderstandings. However, do not simply agree to long-term changes outside of court without formalising them, since the original order remains legally in force​.
  2. Family Dispute Resolution (mediation): This is often the next step. Before going to court, Australian law generally requires parents to attempt Family Dispute Resolution (mediation) for parenting disputes (unless an exemption applies, such as urgency or family violence)​. You can bring a family lawyer to FDR to provide support.
  3. Apply to enforce the order (enforcement application): If the other parent’s non-compliance is relatively straightforward, you can file an Application – Enforcement form in the Federal Circuit and Family Court of Australia. The key point is this route enforces rather than punishes — the court will not impose fines or jail under a pure enforcement application​.
  4. Apply for a contravention order (contravention application): A contravention application is a more serious step — it asks the Court to not only enforce the order but also consider penalising the breaching parent for past non-compliance​. Before filing, you normally must obtain an FDR mediation certificate. At the hearing, the onus is on you to prove the breaches, which is why legal representation is recommended. If you prove a breach and the other parent fails to show a reasonable excuse, the Court can impose remedies and penalties including fines, bonds, compensatory time, or even imprisonment in extreme cases. It’s advisable to get legal advice before filing because, if not successful, you might have to pay the other parent’s legal costs.
  5. Urgent or interim orders: If the breach is urgent or causing immediate risk (for example, the other parent is refusing to return the child or is threatening to move away), you can also seek urgent orders. In truly urgent cases (e.g., a child abduction risk), the Court can hear matters on short notice and even after hours via an emergency duty judge. Interim orders could include a Recovery Order (if the child has been taken or withheld) or an order temporarily changing the parenting arrangement until the dispute is sorted out.

Throughout this process, keep records of incidents (dates, times, what occurred) as evidence. Consider obtaining legal advice early — a family lawyer can help you choose the right approach (sometimes, a stern lawyer’s letter to the other parent can prompt compliance without court).

How quickly can the Family Court respond to a parenting order violation?

Applications alleging contravention (a breach of a parenting order) are to be given a first return date within 14 days of filing​. The exact timeline can vary based on the court’s workload and the urgency of the situation. If the breach involves an immediate risk to a child (for example, an abduction or safety issue), the Court can sometimes hear the matter even more urgently (potentially within days, or via an emergency after-hours judge). For less urgent contraventions, the 14-day guideline for the first hearing generally applies.

What interim measures can I take if the other parent repeatedly violates the order?

In the short term, some interim measures and strategies you can take are:

  • Document the breaches: As an initial step, keep a detailed log of each violation (dates, what happened, any witnesses or communications).
  • Family Dispute Resolution (again): If breaches are ongoing, you might attempt another round of mediation (provided it’s safe and feasible).
  • Apply for a Recovery Order: If the other parent has repeatedly failed to return the child or is actively withholding the child from you in violation of the orders, you can apply urgently for a Recovery Order.
  • Apply for a Location Order: If the other parent has taken off to an unknown location with the child (or you suspect they might), the court can issue a Location Order requiring others (individuals or government agencies) to provide information on the child’s whereabouts​.
  • Seek temporary variation or suspension of the order: The court has the power to temporarily vary or suspend parenting orders if needed, even in contravention proceedings before a final determination​.
  • Apply for exemption from repeat mediation: If the other parent has seriously ignored a court order made in the last 12 months, you can go straight to court​ under this exemption.
  • Involve the police (if applicable): Generally, police don’t intervene in parenting disputes without a court order (like a Recovery Order). However, if at any point you fear for your child’s safety (e.g. the other parent is violent or intoxicated during their time), or if a breach crosses into abduction (taking the child across state lines or hiding them), you should involve the police immediately.

A family lawyer can help you file urgent applications or craft interim orders that the court is likely to grant. The court’s priority in interim measures will be the child’s best interests and maintaining stability.

Can police enforce a parenting order if a parent refuses to return the child?

Police can enforce a Recovery Order from the Family Court, but they cannot automatically enforce other parenting orders. If the other parent refuses to return a child as required by the parenting order, you will need to obtain a Recovery Order before the police can intervene.

A Recovery Order authorises and directs law enforcement to locate and retrieve the child and return the child to the parent entitled to have them​. It can include powers to enter premises, search, and seize the child if necessary. Without a Recovery Order, police may see it as a ‘civil matter’.

What role does the Federal Circuit and Family Court of Australia (FCFCOA) play in enforcement?

The FCFCOA is the central forum for enforcing parenting orders. In fact, it is the only authority that can issue the necessary enforcement orders (like contravention orders, Recovery Orders, etc.) to address breaches — police or other agencies act on the Court’s instructions.

What is a contravention application, and how does it work in parenting order breaches?

A contravention application is the formal process of taking the other parent to court to allege they have breached a parenting order. A contravention application can only take place after FDR, and requires a supporting affidavit that details the breach. The hearing process for a contravention application is ‘quasi-criminal’, meaning you will need to argue your case and the Court will require proof beyond a reasonable doubt. After the hearing, the Court will decide for each alleged breach whether it is proven and whether there was a reasonable excuse. If the other parent is found to have breached the parenting order, the Court will impose measures to fix or penalise the situation.

Can mediation resolve a parenting order dispute before going to court?

Yes, absolutely. Mediation — known as Family Dispute Resolution (FDR) — is not only an effective way of resolving parenting order disputes, but it’s also strongly encouraged (and usually required) before you involve the court in a contravention matter. Many times, what seems like a deliberate breach may stem from miscommunication or changing circumstances, and a mediated agreement can get things back on track without the need for enforcement proceedings. If you’re feeling nervous about FDR, support from a family lawyer can help.

Consequences & Penalties for Violating Parenting Orders

If you’re experiencing repeated breaches of your parenting order, here’s everything you need to know about the potential consequences and penalties you can impose through the Family Court, with help from a family lawyer:

What are the penalties for breaching a parenting order in Australia?

There are a variety of penalties possible for breaching a parenting order:

  • Make-up time: The court can order that the parent who missed out on time with the child be given additional time to compensate for what was lost due to the breach.​
  • Attendance at a post-separation parenting program: The breaching parent can be ordered to attend a course or counselling program educating them about the child’s needs and the importance of complying with orders.
  • Good behaviour bond: The court may require the contravening parent to enter into a bond for up to two years​. This bond usually stipulates that the parent must be of good behaviour and comply with the orders going forward, or face paying a penalty.
  • Order to pay the other party’s legal costs: The court can order the breaching party to pay some or all of the legal costs the other parent incurred because of the contravention​.
  • Order to pay compensation for expenses: If the breach caused the other party to incur expenses (for example, you paid for airline tickets for the child to visit you and the other parent thwarted the visit, wasting the money), the court can order the breaching parent to reimburse those reasonable expenses​.
  • Fines: The Family Law Act allows fines (currently up to 60 penalty units per breach in many cases, which amounts to several thousands of dollars) — though the exact amount will depend on the court’s view of the breach’s gravity.
  • Community service: This is less commonly used, but it is an option (enabled by s.70NFC of the Act). If community service is ordered and the person fails to complete it, the court can impose another penalty or a fine for that failure​.
  • Imprisonment: This is the most severe penalty — the court can order the parent to serve a term of imprisonment (jail) of up to 12 months for a contravention​. Imprisonment is considered a last resort, reserved for the most serious contraventions.
  • Variation or suspension of the primary parenting order: Interestingly, the court can also respond to a breach by changing the parenting orders themselves. For example, if one parent has repeatedly breached the orders, the court might decide to suspend their contact for a period or even alter who the child lives with (if that’s in the child’s best interests)​.

It’s important to note the graduated approach: the court will choose a penalty that fits the seriousness of the breach

Can a parent go to jail for repeatedly violating a parenting order?

Yes, a parent can be sent to jail for persistently or seriously breaching parenting orders — though this is a measure of last resort. The Family Law Act provides that for the most serious contraventions (those without reasonable excuse), the court may impose a term of imprisonment of up to 12 months.

What fines or community service penalties apply to parenting order breaches?

Fines can be applied to a parenting order breach, but there is no fixed amount for every case. Rather, the Family Law Act sets a maximum fine expressed as 60 ‘penalty units’ for each offence. At the Commonwealth penalty unit value, this is $13,320 — but the court will determine an appropriate fine based on the circumstances. In practice, fines might range from a few hundred to a few thousand dollars. They are paid to the Commonwealth (not to the other parent).

Community service orders require the breaching parent to perform a certain number of hours of unpaid community work. It’s another way of penalising misconduct through a constructive but punitive measure. While community service orders in parenting breaches are not very common, they are used on occasion.

Can a parent be required to pay legal costs for violating a parenting order?

Yes, the court can order a breaching parent to pay the other parent’s legal costs incurred because of the breach. This is actually one of the explicit consequences available for contraventions. If you had to go to court to enforce the order, and the court finds the other parent was indeed at fault, it is common for the court to make a costs order in your favour.

Modifying Parenting Orders After a Violation

If you’ve experienced multiple breaches, you might feel that you need to adjust your parenting orders. Here’s what you need to know:

Can I apply for a change to the parenting order if the other parent keeps violating it?

Yes, if your current parenting orders aren’t working because the other parent keeps breaching them, you can absolutely apply to the court to have the orders varied (changed). In fact, frequent breaches by one parent often indicate to the Court that the order should be revisited for the child’s best interests — or simply to get an order that the other parent is more likely to comply with. Your parenting order can be changed by agreement or by a court application.

How do repeated breaches affect future custody arrangements?

Repeated breaches will usually hurt the offending parent’s trust and credibility, and in the long run, can lead to custody arrangements that favour the more reliable parent. Frequent breaches signal to the Court that the parent may not be acting in the child’s best interests — which is the number-one consideration of family law in Australia. They will also cause the Court to consider the extent to which each parent has facilitated or impeded the child’s relationship with the other parent.

Will the court grant me sole custody if the other parent continuously ignores the order?

While it is possible that the Family Court will grant you sole custody if the other parent continuously ignores the current orders, it’s not guaranteed. It will depend on whether that outcome is judged to be in the child’s best interests.

Impact on the Child & Parental Rights

Let’s unpack how order violations impact both your child and your parental rights:

Can a child refuse to follow a parenting order if they don’t want to see the other parent?

Legally, no; a parenting order is legally binding, meaning a parent must take all reasonable steps and encourage the child to spend time or communicate as ordered. As such, a child (being under 18) does not have the legal right to overturn the order — even if they’re a teenager.

The Courts understand that you cannot physically force a child to get into a car or onto a plane to see the other parent, but you will need to be able to prove you did everything you could. If your child is refusing, you should get legal advice from a family lawyer about seeking a modification of the order through court.

What happens if the other parent is influencing the child to resist contact?

Parental alienation, where a parent deliberately influences a child to resist seeing the other parent, can result in the Family Court sanctioning make-up time and counselling, or even changed custody arrangements. This manipulation is considered emotional abuse and is taken extremely seriously by the courts. If you suspect the other parent is influencing the child to refuse contact, you should seek legal advice and begin to keep a log of ‘out-of-character incidents’.

Interstate & International Parenting Order Violations

The thought of your child being taken to another state or country can be daunting. Here’s what you need to know:

What happens if the other parent takes the child interstate without permission?

If a parent takes a child interstate contrary to the terms of a parenting order, and without the other parent’s permission, it will usually trigger urgent legal action. Several things may happen as a result:

  • Recovery Order: A Recovery Order authorises police across all states and territories to locate and retrieve the child​. Police (often the Australian Federal Police in coordination with local police) can then find the parent and child and ensure the child is returned to the parent who’s supposed to have them.
  • Location Order: If the parent’s whereabouts are unknown, the court can issue a Location Order requiring persons or organisations (like Centrelink, Medicare, or banks) to provide information about the parent’s location​. This is helpful if the taking parent is trying to hide. A Recovery Order follows a Location Order.
  • Contravention application: You can file a contravention application citing that the other parent failed to return the child or removed the child contrary to the order. The court could impose penalties on the breaching parent once the child is recovered (ranging from bonds to more, given the seriousness of absconding with a child).
  • Urgent hearing/injunction: The court might convene on short notice to issue the Recovery Order or an injunction ordering the parent to return the child by a certain deadline. If the parent defies that, they could be in contempt of court.
  • State police involvement: Importantly, removing a child interstate isn’t in itself a criminal offence (unlike how international removal can be). However, if the child is in danger, police can act to secure the child’s safety even before a Recovery Order is issued.
  • Return and possible change of orders: When the child is located and returned, the court will often re-evaluate the current orders.

Can I stop the other parent from travelling overseas with the child if they violate orders?

Yes, if you fear the other parent may travel overseas with your child in breach of orders (or not return the child from an overseas trip), you can take proactive legal steps to prevent it. In Australia, there are mechanisms like the Family Law Watchlist (formerly known as the Airport Watchlist or PACE alert) and specific court orders to restrain overseas travel. If you suspect that the other parent may abscond with your child, it is recommended you urgently seek legal advice.

What are my options if the other parent moves away without consulting me?

If the other parent relocates with the child to a different city or far region without your agreement (or a court order), you can seek an interim order compelling them to return the child to their former locality. This is often done to prevent a parent from gaining an advantage by moving first and arguing later. Once the child has returned, Court will determine whether the relocation is in the child’s best interests.

If the other parent has relocated your child without your permission, you need to seek legal representation immediately. The longer the status quo of the child living away from you continues, the harder it might be to reverse.

The court’s response can range from ordering the parent back, varying custody, or, if the move is allowed, ensuring the parenting order is modified to account for travel (maybe even ordering the relocating parent to pay travel costs for contact).

How do Australian courts enforce parenting orders if a parent relocates internationally?

The Australian courts have mechanisms in place to enforce parenting orders where a relocation amounts to international child abduction (i.e., taking or retaining a child overseas without consent). Australian courts use international law channels to enforce orders abroad, primarily the Hague Convention for child abduction. Domestically, they’ll hold the abducting parent accountable (criminally and civilly) whenever possible. The Attorney-General’s Department is your go-to for help, and they have a hotline (1800 100 480) for international child abduction matters.

Whether you’re dealing with late child custody drop-offs or international relocation, a family lawyer can provide the support and expertise to help you navigate the complicated world of parenting order violations. The team at Duffy & Simon are here to help — and provide peace of mind when you need it most. Contact us today for legal advice.