Contravention or Enforcement Proceedings in Family Law

Understanding Contravention Applications and Enforcement Proceedings from May 2024

When a parenting order is made by the court and issued, it is essential that everyone involved does their best to follow the orders.  If there are difficulties, parties should communicate and cooperate for the children's best interests. However, when things don't go as planned and parties cannot work cooperatively, court intervention can be necessary to enforce compliance. These proceedings are known as contravention or enforcement proceedings.

From May 2024, changes to the Family Law Act 1975 have been implemented.  These changes are significant and will impact all future parenting proceedings, including contravention and enforcement proceedings. 

So, what constitutes the contravention of a parenting order?

A party will be found to have contravened a parenting order if they have:

• intentionally failed to comply with an order; or
• made no reasonable attempt to comply with an order; or
• intentionally prevented compliance with or aided and abetted a person not to comply with the order.

Are there any excuses for a breach?

In some circumstances the court may consider that a person has a ‘reasonable excuse’ for contravening a parenting order.  The amended Family Law Act defines and provides examples of a ‘reasonable excuse’ as follows:

• Where a person contravened the order because, at the time of the contravention, they did not understand the obligations imposed by the order on them or the person who was bound by it.
• Where the person contravened the order, because at the time of the contravention they reasonably believed it was necessary to protect the health and safety of a parent, another person or a child.
• Where the contravention was not for a period longer than was necessary to reasonably protect the health and safety of a parent, another person or a child.

If the court finds that there was a breach, but the breach was reasonably excusable the court may:

• Make an order directing the party or all parties attend a post-separation parenting program.
• Explain the obligations imposed on the party who contravened the order in a way that the person can understand.
• Make orders for variation or suspension of orders.
• Make orders for make-up time for the child to spend time with or communicate with the Applicant.

If the court finds that there was a breach with no reasonable excuse the court may:-

• Make an order directing the party or all parties attend a post-separation parenting program.
• Make orders for make-up time for the child to spend time with or communicate with the Applicant.
• Make orders for variation or suspension of orders.
• Make an order requiring the person who committed the contravention to enter into a Bond.
• Make an order for the person who committed the contravention to pay all or some of the costs of the other party/parties to the proceeding.
• Make an order to fine or imprison the contravening party where the contravention is so serious that the court considers that no other alternative penalty is appropriate.

Make up time

From May 2024, the Family Law Act will also delegate powers to registrars to issue ‘make-up time parenting orders’ where a parent has lost time with children due to the actions of the other parent.  This delegation should positively make a difference for parents who have been denied time with their children wrongfully.

If you are having difficulty complying with orders

If you are having trouble complying with orders made you should seek legal advice before contravening the orders.   It is always beneficial to seek the advice of an experienced and impartial legal professional to ensure that you are acting reasonably and that you are not at risk of having orders made against you penalising you for breaching the orders.

If the other party is not complying

If another person is not complying with the orders made and you are missing time with your child/children you should seek legal advice as soon as possible to discuss:

• whether there has been a contravention of the orders.
• whether there has been reasonable excuse for that contravention.
• what the court may order in response.
• whether there is a way of addressing the complaint without proceeding to court.

We encourage you to contact our office to make an appointment with one of our solicitors to obtain advice on your situation on (07) 4963 2000 or through our online contact form below.