Contravention of Parenting Orders in Australia: Enforcement and Consequences

Statutory framework and the National Contravention List

Contravention of a parenting order is dealt with under Division 13A of Part VII of the Family Law Act 1975 (Cth). Division 13A distinguishes between the definition of a contravention (section 70NAC), the reasonable-excuse provisions (section 70NAD), the burden of proof for reasonable excuse (section 70NADA), the standards of proof (section 70NAE), and the range of responses available to the Court (sections 70NBA to 70NBD and section 70NBF). Division 13A operates within Part VII more generally, including the principle that the best interests of the child are the paramount consideration in the making of parenting orders, and the amendments to section 60CC that took effect on 6 May 2024.

The Federal Circuit and Family Court of Australia manages contravention applications through the National Contravention List. The List is intended to provide early triage and case management for contravention applications, with the objective of ensuring that genuine safety and compliance issues are dealt with promptly and that applications without prospects are identified early. Parties should work from the current forms, rules and practice directions published by the Court, rather than earlier commentary that may pre-date recent amendments.

Definition of contravention (section 70NAC)

Section 70NAC provides that a person to whom a child-related order applies contravenes the order in the circumstances the section identifies. Those circumstances include: intentional failure to comply with the order; making no reasonable attempt to comply; intentional prevention of another person's compliance with the order; and aiding or abetting a contravention by another person to whom the order applies. Each limb has separate elements that need to be considered against the particular facts alleged.

The elements the applicant must address at the contravention stage typically include:

• the identity of the sealed order said to be contravened, including its date and the paragraphs relied upon;
• that the order was in force at the time of the alleged conduct;
• that the respondent was a person to whom the order applied;
• that the respondent knew of the order, or in the circumstances ought to have known of it; and
• the specific act or omission said to constitute the contravention, tied to a defined paragraph of the order rather than to a general expectation about how the parenting arrangements ought to work.

The definition of contravention itself does not include a "without reasonable excuse" component. Reasonable excuse is a separate step, dealt with under section 70NAD once the elements of contravention are otherwise established.

Reasonable excuse under section 70NAD

Section 70NAD sets out the reasonable-excuse provisions. They include:

• lack of understanding of the obligations imposed by the order where the Court considers the person ought to be excused; and
• a reasonable belief that the actions constituting the contravention were necessary to protect the health or safety of a person (including the child), provided the period of the contravention was not longer than necessary in the circumstances.

The section expressly does not limit the circumstances in which a person may be taken to have had a reasonable excuse; the Court may accept other circumstances that in its assessment are reasonable. Reasonable excuse is a statutory issue on which the person relying on it bears the legal burden. It does not create automatic exemptions for illness, transport difficulty, work commitments, a child's views or refusal, or third-party conduct. Whether any of those matters supports a reasonable excuse in a particular case depends on the evidence, the terms of the order and the circumstances at the relevant time.

The health-or-safety limb has an internal proportionality requirement: the period of the contravention must not have been longer than necessary in the circumstances. A concern that was reasonable at the outset may not justify a contravention that continues beyond the point at which the necessity has ended. Contemporaneous evidence of the concern, of the steps taken to address it, and of the steps taken to resume compliance is relevant.

Burden of proof for reasonable excuse (section 70NADA)

Section 70NADA provides that a person alleging they had a reasonable excuse bears the legal burden of proving that excuse. This is a legal burden, not merely an evidential onus. In practical terms, the respondent must adduce evidence sufficient to persuade the Court, on the applicable standard, that the statutory reasonable-excuse test is satisfied. The applicant does not have to disprove reasonable excuse in advance; the issue arises where the respondent raises it.

Standards of proof (section 70NAE)

Section 70NAE addresses the standards of proof applicable to matters under Division 13A. The section applies the balance of probabilities to matters under the Division other than an order under paragraph 70NBF(1)(d). Where the Court is considering an order under paragraph 70NBF(1)(d) — a fine not exceeding 60 penalty units or a sentence of imprisonment — the Court must be satisfied beyond reasonable doubt that the respondent contravened the order. The applicable standard therefore depends on the response the Court is considering. Because different responses can attract different standards on the same facts, it is important to identify at the outset which responses the application actually seeks, and to prepare the evidence accordingly.

Provisions under sections 70NBA to 70NBD and section 70NBF

Division 13A identifies specific provisions dealing with the Court's response to contravention proceedings. Each provision operates according to its own statutory text and is not a stage in a general hierarchy. In outline:

• Section 70NBA — the gateway provision identifying the proceedings to which the relevant subdivision applies and the child-related orders it concerns. Section 70NBA is not itself a general power to vary parenting orders.
• Section 70NBB — make-up-time parenting orders, addressing periods a child did not spend with a person under the existing order in the circumstances the section identifies.
• Section 70NBC — variation and suspension of child-related orders that are parenting orders, subject to the statutory text of section 70NBC and the section 65DAAA note.
• Section 70NBD — post-separation parenting programs, where the Court considers attendance appropriate in the circumstances.
• Section 70NBF — orders available where the Court is satisfied that the respondent contravened the order without reasonable excuse.

The precise scope of each provision is set by the current text of the Act and its associated rules. Practitioners work from the consolidated legislation, the Court's rules and any relevant practice directions when identifying which responses are open on the facts of a particular case.

Orders available under section 70NBF(1)

Under section 70NBF(1), where the Court is satisfied that the respondent contravened the order without reasonable excuse, the orders the Court may make are:

• a bond under section 70NCA, on the terms the Court considers appropriate;
• a fine not exceeding 10 penalty units in respect of a failure, without reasonable excuse, to enter into a bond ordered under paragraph (a);
• an order compensating an affected person for some or all reasonable expenses incurred as a result of the contravention, where the contravention caused a child not to spend time with, or live with, that person; and
• only where the Court is satisfied beyond reasonable doubt that the respondent contravened the order, a fine not exceeding 60 penalty units or a sentence of imprisonment, subject to the further limits in the Act.

Make-up time under section 70NBB and compensation for reasonable expenses under paragraph 70NBF(1)(c) are distinct: make-up time is a parenting order adjusting future time with the child, while compensation under paragraph 70NBF(1)(c) addresses reasonable expenses of the affected person and is not a general remedy for "lost time" with the child.

Costs are not an order created by section 70NBF. Costs in family law proceedings, including contravention proceedings, are governed separately by the Family Law Act costs framework and the applicable rules, and remain a matter for the Court's discretion on the facts.

The Court's response is discretionary and fact-specific. It is not accurate to describe the Court as routinely imposing any particular response. The response the Court chooses in a given case reflects the seriousness of the conduct, the reasons for it, the history between the parties, the impact on the child, and the objective of promoting compliance with orders that continue to serve the child's best interests.

Evidence in contravention applications

Evidence should identify, for each alleged count, the specific paragraph of the sealed current order, the required conduct, the alleged act or omission, dates and times, the respondent's awareness of the order, any attempts to comply, and admissible supporting material. Communications, calendars, third-party evidence and records may be relevant. Their weight and admissibility depend on how the evidence is put before the Court, not on labels such as "screenshots" or "messages".

Affidavit material should focus on the elements of section 70NAC and on the matters relied upon in support of, or in answer to, reasonable excuse under section 70NAD. General grievances about co-parenting, historical disputes, and matters outside the scope of the current order distract from those elements and can weaken an otherwise arguable application or response. Each alleged contravention should be pleaded as a separately numbered count, with the evidence organised so that the Court can identify, for each count, the paragraph of the order, the alleged conduct, and the evidence relied on.

Filing and procedure

A contravention application is typically commenced using the Court's Application – Contravention, together with a supporting affidavit that addresses each alleged count. The Federal Circuit and Family Court of Australia publishes current material on contravention applications, including forms, service requirements and practice-direction material addressing the National Contravention List. Parties should work from the current forms and practice direction rather than from earlier commentary.

Common procedural matters include:

• obtaining a sealed copy of the parenting order said to have been contravened and identifying the paragraphs relied upon;
• preparing a chronology and count-by-count schedule of alleged contraventions;
• addressing any pre-filing requirements applicable under the current Act and rules, including any certification or exemption requirements as they apply from time to time to contravention applications;
• ensuring proper service on the respondent and any other person entitled to service;
• filing supporting evidence in admissible form and exhibiting relevant communications and records; and
• being prepared, at the first return, for triage directions consistent with the National Contravention List, including directions about narrowing the issues, filing any response, and listing the matter for further hearing or determination.

Whether section 60I applies to a contravention application, and whether an exemption is available, depends on the current text of the Act, the relief sought and the Court's practice. Independent advice should be obtained on the pre-filing steps applicable to a particular application.

Distinguishing related pathways

Contravention proceedings should be distinguished from:

• enforcement applications concerning obligations to which enforcement procedures apply;
• recovery orders and location orders where a child is not returned or their whereabouts are unknown;
• contempt proceedings where the conduct engages contempt principles;
• applications to vary or reconsider final parenting orders under section 65DAAA and the best-interests framework;
• appeals; and
• family violence order applications under State law, and the interaction of such orders with parenting orders under section 68P.

A contravention application is not a substitute for varying an unworkable order, and a variation is not automatic merely because contravention is alleged or found. Where the underlying difficulty is that the existing orders no longer suit the child's circumstances, a properly framed application to reconsider the orders under section 65DAAA, or to make fresh orders addressing the current circumstances, may be the more appropriate pathway. Where recovery of a child is the immediate concern, recovery and location orders are the appropriate mechanism. Where behaviour engages contempt principles, contempt is a separate jurisdiction with its own procedural safeguards.

Children, safety and communication

A child's views or refusal, family violence, safety concerns, illness, travel, communication failures and handover difficulties are evidence-specific. A parent should not force a child, ignore safety, breach an order, or assume that any of these matters automatically establishes a reasonable excuse. Independent legal advice should be obtained early rather than relying on categorical rules of thumb.

Where safety concerns arise, contemporaneous records — for example, medical assessments, communications with treating practitioners, and communications with the other parent explaining the concern and the steps proposed — can be important in supporting a reasonable-excuse case under section 70NAD. Where the concern has resolved, evidence of steps taken to resume compliance is relevant to the proportionality requirement in section 70NAD.

Costs and outcomes

Costs are discretionary. Fines and imprisonment are only available in the circumstances the Division identifies and on the higher standard of proof. This article does not predict outcomes on any given set of facts; outcomes turn on the evidence, the applicable statutory tests and the Court's assessment.

Getting help

Our family law team advises parents and other carers on contravention, variation, urgent recovery and parenting matters across Australia. Related guides include our national guide to parenting orders and best interests of the child in Australia.

Frequently Asked Questions

How Parke Lawyers Can Help

Parke Lawyers' Family Law team acts for parents and other carers across Australia on contravention of parenting orders — advice, contravention applications, responses, urgent recovery and interim relief, variation and consent orders under the current Part VII framework. Facing a contravention issue? Speak with a family lawyer early so the orders, alleged conduct, evidence and available response can be assessed promptly.