Contravention and Enforcement of Parenting Orders in NSW
Contravention and Enforcement of Parenting Orders in NSW
When the other parent ignores a court-ordered parenting schedule — refusing changeovers, withholding the children on their allocated days, or unilaterally changing arrangements — you have a legal remedy. A contravention application asks the FCFCOA to enforce the existing parenting orders and impose consequences for the breach.
But enforcement is not automatic, and the court's response depends on how serious the breach is and whether the breaching parent has a "reasonable excuse."
What Counts as a Contravention
A contravention occurs when a person intentionally fails to comply with a parenting order without a reasonable excuse. Common examples:
- Refusing to hand the children over at the scheduled changeover time
- Keeping the children beyond the ordered return time
- Preventing the other parent from communicating with the children (blocking phone calls, intercepting messages)
- Making major decisions unilaterally when the orders require joint decision-making (enrolling the child in a new school, changing their medical provider)
- Failing to make the children available for the other parent's holiday time
What is not a contravention:
- A child refusing to go to the other parent (the obligation is on the parent to make the child available, but a teenager's refusal to physically get in the car may constitute a reasonable excuse)
- A genuine emergency that prevented compliance (the child was hospitalised, a natural disaster blocked travel)
- An honest and reasonable mistake about the orders (though this defence is narrow and rarely succeeds for clear, unambiguous orders)
How to File a Contravention Application
You file a contravention application through the Commonwealth Courts Portal, either as an Application in a Case (if the original proceedings are still open) or as a new Initiating Application referencing the existing orders.
Your application must include:
- The specific order breached. Quote the exact paragraph number and wording from the court orders.
- The date and details of each breach. Be precise — "On 14 June 2026, the Mother failed to make the children available for the Father's weekend care commencing 4:00pm as specified in Order 5(b)."
- Evidence. Text messages, emails, photos of the empty changeover location, screenshots of blocked calls. Contemporaneous evidence is strongest.
- An affidavit. Setting out the facts of each contravention and how it has affected the children.
You do not need a Section 60I certificate (mediation) before filing a contravention application — the mediation requirement only applies to applications for new parenting orders, not enforcement of existing ones.
The Court's Response: A Graduated System
The FCFCOA uses a tiered response to contraventions:
Less Serious Contraventions
For a first breach, or where the breach is relatively minor (late changeovers, isolated failures), the court may:
- Order makeup time. The breaching parent must provide additional time to compensate for the time lost. For example, if a parent withheld the children for an entire weekend, the court may order a makeup weekend within a specified timeframe.
- Order the parent to attend a post-separation parenting program. These programs, such as the "Parenting After Separation" course, teach co-parenting communication skills.
- Adjourn with a warning. The court places the breach on record and warns the parent that further contraventions will attract more serious consequences.
Serious or Repeated Contraventions
For persistent or deliberate breaches, the court can:
- Vary the parenting orders. If one parent consistently fails to comply, the court may change the orders — sometimes dramatically, including reversing the primary care arrangement.
- Order a bond. The breaching parent posts a financial bond (typically $500-$5,000) that is forfeited if they breach again.
- Order costs. The breaching parent pays the other parent's legal costs for bringing the contravention application.
- Impose a fine. Up to 60 penalty units (currently approximately $19,800).
- Order community service. Up to 500 hours.
- Imprisonment. For the most extreme cases — typically involving repeated, deliberate defiance of court orders — imprisonment of up to 12 months is available but rarely imposed.
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The "Reasonable Excuse" Defence
The parent accused of contravention can defend the application by proving they had a "reasonable excuse" for the breach. The Act defines a reasonable excuse narrowly:
- They did not understand the obligation — but only if the court is satisfied they could not reasonably have been expected to understand it
- They believed on reasonable grounds that their actions were necessary to protect the child's health or safety
- The contravention was justified by circumstances beyond their control
Simply disagreeing with the orders, finding the schedule inconvenient, or believing the children are better off in their care is not a reasonable excuse.
Before Filing: Document Everything
The strength of a contravention application depends entirely on your evidence. Before filing:
- Keep a log of every missed changeover, late return, and blocked communication — with dates and times
- Save text messages and emails that show the other parent refusing to comply
- Note the names of any witnesses (family members, teachers, or childcare workers who observed the breach)
- If changeovers are at a public location, consider having a support person present who can later provide a statement
Getting the Enforcement Process Right
The NSW Custody & Parenting Plan Guide includes a contravention checklist, model evidence logs, and guidance on when to file a contravention application versus when to seek a variation of the existing orders — because sometimes the most effective response to repeated breaches is changing the orders rather than enforcing broken ones.
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