Your Obligations Under a Parenting Order

Once the order is made, every named party is obliged to:

• positively comply – do what the order says (for example, deliver the child for change-over on time);  and
• avoid interference – refrain from actions that make it difficult or impossible for the other parent to exercise their time or responsibilities.

A breach can occur through action (e.g. unilaterally keeping the child an extra night) or inaction (e.g. failing to put the child on a plane as agreed).

What Counts as a Contravention?

The Act identifies four broad ways to contravene an order (s 70NAC):

1. Intentional breach – doing the opposite of what the order requires.
2. Resulting breach – actions that indirectly prevent compliance (for example, scheduling events that clash with hand-over).
3. Aid and abet – assisting someone else to breach.
4. Failure to make a reasonable attempt – not taking genuine steps to comply.

Where a party believes the other has breached, an application for contravention proceedings can be filed. The court must then determine, on the balance of probabilities (s 70NAE), whether a contravention occurred and, if so, what remedy is appropriate.

Reasonable excuse – when non-compliance may be defensible

The legislation recognises that life can throw up genuine barriers to strict compliance. Section 70NAD sets out what amounts to a reasonable excuse, including:

• believing on reasonable grounds that the breach was necessary to protect the child or another person’s safety;
• circumstances where you did not understand the order; or
• situations outside your control (for instance, a medical emergency or aviation cancellation).

Importantly, you must prove that you acted for the shortest practicable time consistent with the child’s safety. If the court accepts the excuse, no penalty will be imposed, but it may adjust the order to avoid future conflict.

Consequences of Breaching a Children’s Order

When a breach is proved and no reasonable excuse exists, the range of court responses escalates in seriousness (Subdivision B & C):

• Make-up time – an order  that the child spend additional time with the deprived parent (s 70NBB).
• Varying or suspending the existing order – the court can rewrite practical arrangements to prevent repeat problems (s 70NBC).
• Attendance at a post-separation parenting programme – compulsory courses designed to improve co-parenting communication (s 70NBD).
• Bond, fine or community service – for more serious or repeated breaches (ss 70NBF, 70NCA).
• Imprisonment – reserved for persistent, wilful defiance (up to 12 months for a second or subsequent serious contravention).

In addition, the court can order the contravening party to pay the other parent’s legal costs and any losses reasonably incurred (for example, wasted airfares). A record of contravention may also influence future applications to alter parental responsibility.

How the Court Decides Which Penalty to Impose

Judges weigh:

• seriousness and frequency of the breach;
• impact on the child – disruption, distress or safety risk;
• co-operation shown afterwards – prompt apologies or offers of make-up time; and
• any prior history – a pattern of minor infringements can elevate the response.

The objective is not punishment for its own sake but to secure ongoing compliance so the child’s routine, and relationship with each parent, is protected.

Practical Steps if you Believe an Order has Been Breached

1. Document everything – keep messages, flight details, school notes or witness statements.
2. Communicate respectfully – propose make-up time in writing; reasonable overtures can help you later on costs.
3. Consider mediation – many misunderstandings resolve quickly with a neutral facilitator.
4. Act promptly – file a contravention application before memories fade.
5. Get legal advice early –  strategic guidance often prevents escalation.

If you are the accused party, don’t ignore the application. Gather evidence supporting any reasonable excuse (medical certificates, police reports, travel documentation) and seek legal representation.

Why Professional Advice Matters

Contravention proceedings are procedurally technical. Choosing the wrong box on the application form, mis-citing sections or failing to serve documents correctly can see your case dismissed or costs awarded against you. An experienced family lawyer will:

• assess whether you have sufficient evidence to bring (or defend) a contravention;
• explore negotiated solutions that preserve co-parenting goodwill;
• prepare persuasive affidavit material focusing on the statutory tests in ss 70NAC–70NAE; and
• appear in court to argue for an outcome that protects your child’s routine and your legal interests.