When a parenting order
is breached

You went to court. You got orders. You thought the hard part was done.

Then the handover didn't happen. The other parent stopped answering. Your children weren't ready. It's happened three times now, or five, or ten. You are following the orders. They are not.

This is not an edge case — it is one of the most common situations fathers in separated families face, and it is one the law takes seriously. Under Division 13A of Part VII of the Family Law Act 1975 (Cth), breaching a parenting order is a contravention. Courts can impose meaningful consequences — and can compensate you for the time you have lost.

What counts as a contravention

Under section 70NAC of the Family Law Act, a person contravenes a parenting order if they:

• intentionally fail to comply with the order; or
• make no reasonable attempt to comply with the order.

This is deliberately broad. It is not limited to outright refusals. A parent who consistently "forgets" pickup times, who habitually returns children late so that your time is cut short, or who finds reasons why contact "just couldn't happen" on this occasion may be contravening the order — even if they would describe each incident as unavoidable.

The order that has been breached must be a court order, not a parenting plan. A parenting plan is an agreement between the parties and is not enforceable in the same way. This is one reason why having formal orders — rather than relying on informal arrangements — matters so much. If your parenting arrangement is currently based only on what you and the other parent agreed verbally or in writing without court approval, our guide on how parenting orders work explains the difference and why it matters.

The "reasonable excuse" defence

When a contravention is alleged, the other party may raise a "reasonable excuse" under section 70NAE of the Family Law Act. The court will consider whether the person had a reasonable excuse for not complying with the order.

Examples the Act identifies as potentially amounting to a reasonable excuse include:

• the person did not understand the order's obligations (though this is harder to establish once orders have been in place for some time);
• the person believed the contravention was necessary to protect the health or safety of a person — including the child — from family violence; or
• the contravention lasted no longer than was necessary to protect that person.

Courts scrutinise claims of reasonable excuse carefully. A genuine safety concern may justify non-compliance. Inconvenience, disagreement with the order, or general friction in the co-parenting relationship will not. If the other parent has been using safety excuses to justify repeated breaches without any formal report to police or family violence services, that pattern is itself relevant.

What to do when contact is refused

How you respond to a breach — both in the moment and in the days after — matters for what comes next. These steps protect you:

Show up and document. Arrive at the agreed time and place. If you are met with a refusal, do not escalate — stay calm, note the time, and leave. Keep a contemporaneous record of every breach: the date, the time, what you were told (if anything), and any witnesses.

Communicate in writing. Send a brief, factual message after each missed contact: what the order required, what happened, and a request to arrange the missed time. These messages become evidence. Write them as if a judge will read them, because one might.

Keep the children out of it. Do not involve your children in communications, do not ask them to report on the other parent's household, and do not use them to pass messages. Courts watch for this closely.

Contact a lawyer before you act. The temptation to take unilateral action — withholding child support payments, refusing to return the children after your time, or simply changing the arrangement to suit yourself — is understandable but almost always counterproductive. Courts view self-help remedies very poorly, and you risk becoming the party at fault.

Contravention applications: how they work

If breaches continue and cannot be resolved by communication, you can file a contravention application in the Federal Circuit and Family Court of Australia. This is a separate application from your original parenting proceedings.

Unlike an application to vary parenting orders — which typically requires you to demonstrate a significant change in circumstances — a contravention application asks the court to enforce the existing order. You are not asking for different orders; you are asking the court to hold the other party to the ones already in place.

The process generally works as follows:

1. File the application. You file a contravention application supported by an affidavit setting out each alleged breach in detail.
2. Service. The application is served on the other party.
3. First hearing. The court determines whether the matter can be resolved at a first return date, or whether it needs to proceed to a defended hearing.
4. Hearing. At a defended hearing, both parties present evidence and submissions. The court determines whether a contravention occurred and, if so, whether a reasonable excuse exists.

Unlike a full parenting hearing, contravention proceedings can move relatively quickly. Courts understand that time with a parent cannot be recovered — a week lost to a breach is simply gone — and they generally try to deal with these applications without unnecessary delay.

Importantly, contravention applications are specifically exempt from the requirement to attend Family Dispute Resolution before filing. You do not need to attempt mediation before bringing a contravention application to enforce existing orders.

What the court can order

If the court finds a contravention was established without reasonable excuse, the range of orders available depends on the seriousness of the breach.

For less serious contraventions (section 70NDB of the Family Law Act), the court may:

• adjourn the proceedings and require the parties to attend a post-separation parenting program;
• vary the parenting order;
• order that the person enter into a bond;
• award costs against the contravening party; or
• make a "make-up time" order — additional time with the children to compensate for what was lost.

For more serious contraventions (section 70NDC), the court has broader powers including:

• a community service order;
• a fine;
• in the most serious cases, imprisonment.

Imprisonment is rare and reserved for the most wilful, repeated, and serious non-compliance. What fathers more commonly obtain in sustained contravention proceedings are make-up time orders, variation of the parenting orders to reduce the other parent's scope for interference, and costs orders — all of which can be meaningful.

The court also has a broad power to vary the existing parenting orders if it considers a variation would be in the best interests of the children. A history of non-compliance by one parent is relevant to that assessment.

When breaches become a pattern

Repeated contravention is evidence of a deeper problem: the existing parenting arrangement is not working. Where the other parent has demonstrated a consistent unwillingness to facilitate your relationship with your children, courts may be prepared to look at more substantial changes — including altering the time the children spend with each parent, or imposing more prescriptive orders that leave less room for obstruction.

Courts do not change parenting arrangements lightly, and the best interests of the children remain the paramount consideration under section 60CA of the Family Law Act. But a parent who repeatedly and without excuse refuses to comply with court orders is demonstrating something important about their attitude to co-parenting — and courts notice.

If you have been dealing with consistent breaches over months or years, it may be time to do more than enforce the current orders. It may be time to seek orders that better reflect the reality of your relationship with your children. Our guide on interim parenting orders explains how to seek changes while final proceedings are on foot. For matters where the situation is urgent, see our guide on what to do if you're being kept from your children.

Frequently asked questions

Can I withhold child support if the other parent is breaching the parenting order?

No. Child support obligations and parenting orders are legally separate. Withholding child support is not a permitted response to a breach of parenting orders and may expose you to separate enforcement action by Services Australia. The proper response is to pursue enforcement of the parenting orders through the court.

Do I have to go to mediation before filing a contravention application?

No. Contravention applications under Division 13A of the Family Law Act are specifically exempt from the requirement to attempt Family Dispute Resolution. You can file directly.

Can I call the police if the other parent refuses handover?

Police can assist with the enforcement of parenting orders in limited circumstances, particularly where a recovery order has been made or where there is an immediate safety concern. For a simple refusal to comply with a handover, police are unlikely to intervene directly — their role in family law matters is limited. The civil enforcement process through the FCFCOA is the primary avenue.

What if the other parent says they had a reason for not complying?

They may raise a reasonable excuse defence. The court will assess it. A genuine safety concern, properly documented, may amount to a reasonable excuse. Inconvenience, disorganisation, or disagreement with the order generally will not. The burden is on the party alleging the contravention to establish that it occurred; the burden then shifts to the alleged contravening party to establish reasonable excuse.

What is a "make-up time" order?

A make-up time order requires the parent who breached the order to allow the other parent additional time with the children to compensate for what was lost due to the contravention. It is one of the most practically useful remedies available in contravention proceedings.

This guide is general information only and does not constitute legal advice. For advice about your specific situation, speak with a qualified family lawyer.