When the other parent breaks the orders

When you have parenting orders and the other parent does not follow them, it is upsetting — and it is easy to react in anger. But how you respond matters, both for your children and for your own position. This guide explains what counts as a contravention, what your options are, and what a court can actually do.

What a contravention is

A contravention of parenting orders means a person who is bound by the orders has, without a reasonable excuse:

• intentionally failed to comply with the orders, or
• made no reasonable attempt to comply, or
• intentionally prevented compliance by a person who is bound, or aided or abetted a contravention.

Examples include repeatedly failing to make the children available at changeover, withholding the children, or not returning them at the end of a period they are meant to spend with the other parent. Not every disagreement is a contravention — the breach must be of a clear obligation in the order.

The idea of a “reasonable excuse”

The law recognises that sometimes a person does not comply for a legitimate reason. If the court finds an order was breached, it then asks whether the person had a reasonable excuse. The person claiming the excuse bears the burden of proving it.

Recognised examples of a reasonable excuse include:

• The person did not understand the obligations the order imposed, and the court considers they ought to be excused.
• The person reasonably believed the actions were necessary to protect the health or safety of a person (including a child), and the breach lasted no longer than was reasonably necessary.

Genuine safety concerns are treated seriously — the child’s safety is paramount. But “reasonable excuse” is a legal test, not a personal opinion that the order is inconvenient or unfair. If you think the order is wrong, the answer is to apply to change it, not to ignore it.

Options to consider first

A contravention application is not the only tool, and often not the best one. Before rushing to court, work through these:

1. Keep calm and keep records. Note each incident — date, time, what was meant to happen, what actually happened, and any messages. A clear, contemporaneous log is your strongest evidence. See keeping records.
2. Communicate. A calm, businesslike message asking the other parent to comply, or clarifying a genuine misunderstanding, sometimes fixes the problem — and shows the court you tried.
3. Try family dispute resolution (FDR). A mediator can help you resolve recurring problems and, if needed, update arrangements. See family dispute resolution.
4. Decide between two different applications. If the breaches are serious and the orders are otherwise workable, a contravention application may be appropriate. If the orders themselves have become unworkable, it is often wiser to apply to change the orders instead. These are different processes with different goals.

How a contravention application works

If you decide to proceed, you file a Contravention Application with a supporting affidavit setting out exactly which order was breached, when, and how. Precision matters: you must point to a specific obligation and specific occasions. See affidavits in parenting matters.

Contravention matters are managed through the court’s National Contravention List, which is designed to deal with these applications quickly. At the first listing the court will consider whether the alleged contravention is made out, whether there was a reasonable excuse, and how the matter should proceed. You should be ready to prove each alleged breach with evidence — your incident log and communication log are central to this.

What a court can do if a contravention is proven

If the court finds a contravention was established without reasonable excuse, the range of orders it can make depends on how serious the breach is. Possible outcomes include:

• Make-up time — an order compensating the other parent (or you) for time lost with the child.
• Varying or suspending the existing parenting order.
• Requiring a party to attend a post-separation parenting program.
• Placing a person on a bond (with or without conditions).
• Ordering costs, or compensation for reasonable expenses lost because of the contravention (for example, wasted travel or holiday costs).
• In serious cases, or for repeated or flagrant breaches, more significant penalties are available — including a fine, a community service order, or a sentence of imprisonment.

The court chooses the response that fits the seriousness of the conduct and, above all, serves the child’s best interests.

The strengthened compliance focus since 2024

The family law changes that commenced on 6 May 2024 amended the compliance and enforcement provisions for child-related orders. The reforms were designed to make the enforcement framework clearer and easier to understand and use, and to reinforce that parenting orders must be complied with. The changes affect how contravention applications are dealt with. Because this is an area that has recently changed, confirm the current requirements with the Court or a family lawyer before you file.

Why clear evidence matters

Contravention cases turn on evidence. Vague assertions (“she’s always late”, “he never sticks to the orders”) carry little weight. What persuades a court is a specific, dated, factual record:

• Your incident log: for each breach, the date and time, the order that applied, what should have happened, what actually happened, and any witnesses.
• Your communication log: messages and emails showing what was arranged and how the other parent responded.

Keep it factual and unemotional. See keeping records for how to build a log a court will trust.

The cost, delay and relationship risks

Be realistic about what contravention proceedings involve. They can be slow, stressful and expensive, and they tend to inflame conflict between parents — which is rarely good for children. If the court decides your application had little merit, costs can be ordered against you. Weigh whether the likely benefit to your child justifies the cost and conflict.

When it is wiser to change the orders instead

If the orders keep being breached because they no longer fit real life — a changed work roster, a house move, a child’s changing needs, or a poorly worded order that both parents read differently — then punishing the breach will not fix the underlying problem. In that situation it is often better to seek to change the orders by agreement (through FDR and consent orders) or by application, so you end up with arrangements that actually work. See parenting plans, consent orders and court orders for the difference between these tools.

Keeping the child’s best interests central

Through all of this, the question the court keeps returning to is what is safe and best for the child. That should be your compass too. Do not withhold the children to “get even” — retaliating can itself be a contravention and can rebound on you. Keep meeting your own obligations, keep the tone civil, and keep the focus on your children’s stability and safety rather than on winning a point against the other parent.

Getting legal advice

Contravention and enforcement is a technical area, and the 2024 reforms have changed parts of it. Before filing, get advice from a family lawyer, Legal Aid, or a community legal centre about your specific situation and the current requirements. This guide is general information, not legal advice.