Complying with orders about childrenHow to comply with court orders, applying to change a court order.
When a parenting order is made, each person affected by the order must comply with (follow) it.
If you allege another person has not followed an order, the following options are available:
- attending dispute resolution
- getting legal advice
- applying to a court.
Attend family dispute resolution
Community-based family dispute resolution can help you and the other party work through your disagreement. Resolving issues this way is less formal than going to court and should cost less in money, time and emotion. Also, since both parties are involved in shaping a solution, it improves the chances that an agreement will be long lasting.
If there is a history of family violence, it may not be appropriate to attend family dispute resolution. Speak to staff at the family dispute resolution agency about your options and the support services that are available.
You and the other person can attend family dispute resolution before filing a court application. If an agreement is reached, you and the other person can make a parenting plan or apply to court for consent orders.
Note: A parenting plan is not a legally enforceable agreement. It is different from a parenting order, which is made by a court and is legally enforceable. You should get legal advice about this.
For more information about family dispute resolution or to find an agency near you visit Family Relationships Online located on the right under Website links, or call 1800 050 321.
Get legal advice
You should get legal advice before deciding what to do. A lawyer can help you understand your legal rights and responsibilities, and explain how the law applies to your case. A lawyer can also explain and help you reach an agreement without going to court.
You can get legal advice from a:
- legal aid office
- community legal centre, or
- private law firm.
Court staff can help you with questions about court forms and the court process, but cannot give you legal advice.
Apply to a court
If you cannot reach an agreement, you may consider applying to a court for orders. Going to court is often a stressful time for many people. It can also be expensive and time consuming. However, sometimes it may be the only way to deal with a dispute.
A court can enforce an order to compel a person to comply with the order. It also can vary an order to ensure all people bound by it comply with the order in the future.
Changing a court order
If an existing court order no longer reflects arrangements for a child, it should be changed. An order should also be changed if you or the other party cannot reasonably comply with it. Get legal advice about your options for changing a court order.
The law relating to the consequences of failing to comply with orders is complicated and technical. What may appear as a failure to comply with an order to you, and your family and friends, may not be according to the law. Get legal advice about this.
How is an order breached?
A person breaches (contravenes) an order if he or she:
1. intentionally fails to comply with the order, or
2. makes no reasonable attempt to comply with the order, or
3. intentionally prevents compliance with the order by a person who is bound by it, or
4. aids or abets a contravention of the order by a person who is bound by it.
Note: Parenting orders may be subject to a subsequent parenting plan. Get legal advice about this.
What is a reasonable attempt to comply?
When a parenting order is made, each person affected by the order must follow the order. This includes taking all reasonable steps to follow the order. For example, a parent has a positive obligation to encourage a child to spend time with the other parent (if this is specified in the order).
What is a reasonable excuse?
If a court decides a person has contravened a parenting order, it will consider whether the person had a reasonable excuse for contravening the order. Some examples of reasonable excuses that may satisfy the court include:
1. the person did not understand the obligations imposed by the order, or
2. the person reasonably believed that the actions constituting the contravention were necessary to protect the health and safety of a person, including the person who contravened the order or the child, and
3. that the time of the contravention was not longer than was necessary to protect the health and safety of the person who contravened the order or the child.
Penalties for breaching a parenting order
A court can only penalise someone for breaching a parenting order if another person files a contravention application alleging the person did not comply with the order. After considering all the facts of the case and applying the law, a court may decide:
1. the contravention alleged was not established
2. the contravention was established but there was a reasonable excuse for contravention
3. there was a less serious contravention without reasonable excuse, or
4. there was a more serious contravention without reasonable excuse.
If a court finds a person has breached a parenting order, without reasonable excuse, it may impose a penalty. Depending on the particulars of the case and the type of contravention, a court may:
- order attendance at a post separation parenting program
- compensate for time lost with a child as a result of the contravention
- require the person to enter into a bond
- order the person to pay all or some of the legal costs of the other parties
- order that the person pay compensation for reasonable expenses lost as a result of the contravention
- require the person to participate in community service
- order that a fine be paid,
- order imprisonment.
A court may also make a further order that discharges, varies or suspends the order or renews some or all of an earlier order, or adjourn the case to allow a person to apply for a further order that alters the parenting order.
The penalties are listed under Division 13A of Part VII (seven) in the Family Law Act 1975.
Standard of proof
The decision of a judge in family litigation must be evidence based. The more serious the allegation or more improbable the supposed event, the stronger the evidence has to be before a court concludes that the alleged event occurred.
Except for more serious contraventions or contempt, a party must prove the allegations or facts relied on to the court's satisfaction on what is called ‘the balance of probabilities’. The alleged fact must be more than merely possible; it must be more likely to exist than not. Thus, where the allegation is that one party has not complied with a court order, the alleging party (the applicant in a contravention case) must establish that it is more likely than not that the alleged breach occurred.
In the most serious contraventions, including contempt, a court will not find the case proved unless it is satisfied that all the essential facts have been established ‘beyond reasonable doubt’. This is the same standard required in criminal matters. In general terms it, means that the truth of the allegation must be the only reasonable explanation for what has occurred.
What form do I use?
The Family Law Courts comprise the Federal Circuit Court and the Family Court of Australia. The courts share jurisdiction in all family law matters and you can apply to either court.
The Family Court deals with more complex matters. These may include, for example those that involve a child welfare agency and/or allegations of sexual abuse or serious physical abuse of a child (Magellan cases), family violence and/or mental health issues with other complexities, multiple parties, complex cases where orders sought have the effect of preventing a parent from communicating with or spending time with a child, multiple expert witnesses, complex questions of law and/or special jurisdictional issues, international child abduction under the Hague Convention, special medical procedures and international relocation.
All other applications should be filed in the Federal Circuit Court. The Federal Circuit Court deals with less complex matters that are likely to be decided quickly.
You may prefer to seek legal advice before choosing the court in which to file your application.
The forms you must use and the processes you must follow depend on which court you apply to; the courts have different application forms and different requirements associated with filing an application. For further information go to the 'Forms' section of this website, call 1300 352 000 or visit a family law registry near you.
Before filing any documents at a family law registry, make sure you complete the documents correctly. The accuracy of documents is your responsibility.
Attendance at court
If you are the person alleged to have contravened a parenting order and do not attend the court hearing, orders may be made in your absence, including an order for your arrest.
You can attend in person or ask a lawyer to represent you. If you cannot attend the court hearing in person, you can request to appear by telephone or videolink. You will need to make this request well before the court hearing and explain why you cannot attend in person. For more information about this, speak to staff by calling 1300 352 000 or visiting a family law registry near you.Back to top