Enforcing Family Court Orders in Australia

When orders are breached

A contravention occurs when a person intentionally fails to comply with a family court order, or makes no reasonable attempt to comply. Under section 70NAC of the Family Law Act 1975, a contravention is established when a person bound by an order has acted — or failed to act — in a way that resulted in non-compliance.

Not every disagreement constitutes a contravention. The breach must relate to a specific, identifiable obligation in the orders. Vague or ambiguous orders can make enforcement difficult — which is why precision in drafting orders matters from the outset.

Common types of breaches

• Withholding a child — refusing to make the child available for time with the other parent as specified in the orders. This is the most commonly alleged contravention.
• Not returning on time — consistently returning the child late from changeovers or keeping the child beyond the ordered time without agreement.
• Failing to facilitate communication — blocking phone calls, video calls, or other communication between the child and the other parent when orders require it.
• Failing to comply with specific conditions — breaching conditions such as not exposing the child to certain people, not removing the child from the jurisdiction, or not attending required programs.

Contravention applications

A contravention application is the formal mechanism for asking the court to deal with a breach of family law orders. It is governed by Division 13A of Part VII of the Family Law Act. The application asks the court to find that the other party has contravened an order and to impose an appropriate remedy or penalty.

Unlike applications to vary orders, contravention applications do not require a section 60I certificate. You are not required to attempt Family Dispute Resolution before filing — though attempting informal resolution first is strongly advisable where it is safe and appropriate to do so.

How to file

1. Obtain a certified copy of the orders you allege have been contravened.
2. Complete the Application — Contravention (alleging a contravention of a family law order).
3. Set out each alleged contravention with specific dates, times, and details of the breach.
4. Attach supporting evidence (messages, diary entries, photographs, witness statements).
5. File the application with the Federal Circuit and Family Court and pay the filing fee.
6. Personally serve the application and supporting documents on the respondent.

Filing fees and time limits

Filing fees for contravention applications are set by the court and adjusted annually on 1 July. Fee exemptions are available if you hold a concession card, receive Legal Aid, or can demonstrate financial hardship. Check the Federal Circuit and Family Court website for current fee schedules.

You should file within 12 months of the alleged contravention. The court may grant leave to file outside this period, but delay weakens your position. For ongoing or repeated breaches, each new contravention starts a fresh 12-month period.

The reasonable excuse defence

Under section 70NAE, a person who has contravened an order may raise a "reasonable excuse" defence. If the court accepts that a reasonable excuse existed, the contravention is still established but the consequences differ — the court must treat it more leniently than a contravention without reasonable excuse.

The burden of proof lies with the respondent — the person alleging the reasonable excuse must prove it on the balance of probabilities. It is not enough to simply assert one existed.

What qualifies as a reasonable excuse

• Genuine belief child at risk — a reasonable belief on reasonable grounds that the child's health or safety was at risk (s70NAE(4)).
• Impossibility — compliance was physically or practically impossible in the circumstances (e.g., severe illness, natural disaster).
• Lack of understanding — the person did not understand the obligation, provided they took reasonable steps to understand it.

What does not qualify

• Inconvenience — the changeover time being inconvenient, travel being difficult, or other logistics.
• Child didn't want to go — a child's reluctance is not, by itself, a reasonable excuse unless genuine safety concerns exist.
• Disagreement with orders — believing the orders are unfair or wrong does not justify non-compliance.
• New partner's preferences — a new partner's objections or scheduling conflicts.

Penalties and consequences

The Family Law Act distinguishes between first contraventions and subsequent contraventions, and between contraventions with and without a reasonable excuse. The court has wide discretion in selecting the appropriate penalty, guided by the seriousness of the contravention and the best interests of the child.

First contravention without reasonable excuse

For a first contravention where no reasonable excuse is established, the court may impose one or more of the following:

• Compensatory time — make-up time to compensate the other parent for time lost due to the contravention.
• Community service order — up to 200 hours of community service.
• Fine — a monetary penalty determined by the court.
• Variation of orders — the court may adjust the existing orders to prevent future contraventions.
• Costs orders — requiring the contravening party to pay the applicant's legal costs.

Subsequent contraventions

For a subsequent contravention without reasonable excuse — or where the court considers the contravention to be sufficiently serious — the court has additional powers including:

• All penalties available for first contraventions.
• Imprisonment — up to 12 months, though this is rare and reserved for the most serious, repeated contraventions.
• Suspended sentence — a term of imprisonment that is suspended on condition of future compliance.

Contravention with reasonable excuse

Where a contravention is established but the court finds a reasonable excuse existed, the penalties are more limited. The court may vary the orders, order compensatory time, or require the parties to attend a post-separation parenting program. Punitive sanctions such as community service, fines, and imprisonment are generally not available for contraventions with reasonable excuse.

Enforcement options

Beyond contravention applications, the Family Law Act provides additional enforcement mechanisms. The appropriate option depends on the nature and severity of the breach, and whether the child's safety is at risk.

Bonds and undertakings

The court may require a person to enter into a bond — with or without surety — to guarantee future compliance with orders. An undertaking is a formal promise to the court. Breaching a bond or undertaking can result in forfeiture of the surety and further enforcement proceedings. Bonds are most commonly used where the court wants to give the contravening party an opportunity to demonstrate compliance before imposing harsher penalties.

Location and recovery orders

Location orders (s67J) require a person or organisation (such as a government department or airline) to provide information about a child's location. These are used when a parent has taken the child and their whereabouts are unknown.

Recovery orders (s67Q) authorise the Australian Federal Police or state police to find and return a child. These are serious orders made where a child has been taken or withheld in contravention of court orders and other enforcement mechanisms are inadequate.

Arrest warrants

In extreme cases — where a person has been ordered to attend court in relation to enforcement proceedings and has failed to appear, or where the court considers it necessary to secure a person's attendance — the court may issue an arrest warrant. This is a last resort, used only in the most serious circumstances.

Section 70NFB — court's power to vary orders

Under section 70NFB, when dealing with a contravention, the court has the power to vary the orders that were contravened. This allows the court to address the underlying cause of the contravention by making the orders clearer, more workable, or better suited to the family's current circumstances. This is a significant power because it means enforcement proceedings can result in substantive changes to parenting arrangements — not just penalties for past breaches.

Registration in different courts

Family court orders can be registered in state and territory courts for enforcement purposes. This is relevant where a party resides in a different jurisdiction. Registration allows the local court to enforce the orders as if they were its own. If you need to enforce orders interstate, seek advice about the appropriate registration process.

Practical steps before filing

A contravention application is a serious step. Before filing, consider whether the situation warrants court involvement and whether there are alternative approaches that might resolve the issue more effectively — and with less impact on the children.

Try to resolve informally first

Where it is safe to do so, attempt to resolve the issue directly with the other parent. A calm, written communication (email or text) noting the breach and requesting compliance is both a resolution attempt and evidence for any future application. Many breaches stem from miscommunication rather than deliberate defiance.

Keep written records

Maintain a factual log of every breach — date, time, what the order required, what happened, and any communication. Attach supporting evidence. If you later file a contravention application, this record will form the backbone of your case.

Seek legal advice

Contravention proceedings are complex and the outcome is uncertain. A lawyer — or at minimum a community legal centre or Legal Aid duty lawyer — can assess the strength of your case, advise on likely outcomes, and help you decide whether filing is proportionate. Many legal services offer free initial consultations.

Consider proportionality

Is the contravention serious enough to warrant court proceedings? A one-off minor breach (returning a child 30 minutes late) is unlikely to succeed and may reflect poorly on the applicant. Courts expect parents to exercise a degree of flexibility and reasonableness. Focus on patterns of behaviour, not isolated incidents.

Consider the impact on children

Court proceedings create stress for everyone involved, including children. Before filing, consider whether the proceedings will genuinely improve the child's situation or whether they risk escalating conflict. The court's paramount consideration is the child's best interests — and that includes the impact of the proceedings themselves.

Common questions