What Happens When Someone Breaches a Parenting Order in Queensland

A parenting order is a court order, and it does not enforce itself. Plenty of people only discover that on the first Friday afternoon the other parent simply does not turn up.

The formal remedy is a contravention application, and you can file one in the Federal Circuit and Family Court of Australia. The court works out three things: whether a breach happened, whether the person had a reasonable excuse, and what should be done about it. What follows ranges from no order at all through make-up time, costs, a bond, a parenting program, and in rare cases a fine or imprisonment. Most matters finish a long way short of that.

A person bound by a parenting order contravenes it when they intentionally fail to comply, make no reasonable attempt to comply, or, where they are the parent with the child, prevent another person from doing what the order allows or entitles them to do. That is Part VII Division 13A of the Family Law Act 1975 (Cth) (Family Law Act 1975 (Cth) Part VII Division 13A).

The third limb catches more behaviour than parents expect. Refusing to open the door and hand the child over is the obvious version. Quietly encouraging a teenager to dig in and refuse to go is the same contravention wearing better manners.

Before any of that matters, the order has to actually say the thing you are trying to enforce. A large share of contravention applications die on this point. Orders drafted so that the parents "shall consult", or so that the child "shall spend time as agreed", create obligations nobody can measure, and the court cannot find a breach of a vague standard. An order that says the child spends time with the father each alternate weekend from Friday 3pm at the school gate until Sunday 5pm is a different animal, because compliance is a question of fact.

Held up against real life, the pattern is fairly predictable. A child withheld for a scheduled weekend is a contravention, and the first question will be whether any reason was given at the time. A handover run forty minutes late, once, is technically a contravention, and the court is unlikely to make any order about it at all. Keep the record and watch whether a pattern forms. A parent who moves suburbs and makes handover impractical may or may not have breached, depending on the terms of the order, and relocation may need a separate application in any event. Refusing to sign a passport application the order requires is a contravention, and section 106A can allow the court to sign instead (Family Law Act 1975 (Cth) s 106A). A teenager who refuses to go is contested territory, and the parent has to show what steps they took. A child who is not returned at all when time ends is both a contravention and an emergency, and the first move there is a recovery order.

A child's refusal genuinely does make compliance harder, and it gets harder as children get older. It does not automatically excuse a parent from taking reasonable steps to comply. The law expects positive conduct rather than a shrug: encouraging the child, making the child available, contacting the other parent, and doing something more than deferring to whatever the child wants this week. A parent who can say "I told her she had to go, she refused, and I called him straight away and offered Sunday instead" sits in a materially different position from one who says nothing until the application arrives.

In most cases you generally need a section 60I certificate from a registered family dispute resolution practitioner before filing a contravention application, confirming that family dispute resolution was attempted or that the practitioner considered it inappropriate (Family Law Act 1975 (Cth) s 60I).

Exceptions exist, including urgency, family violence or child abuse, and where a person has shown a serious disregard for their obligations under the order. That last exception is not a box to tick. The court expects to be shown why this case sits outside the ordinary rule, not simply told that mediation would have been pointless.

There is also a practical reason not to resent the step. A large proportion of breaches trace back to an order that quietly stopped fitting real life. A shift roster changed. A child started Saturday sport. Someone moved from Ashgrove to the Sunshine Coast. Family dispute resolution can produce a revised parenting plan in weeks, while a contravention application takes months, costs significantly more, and may end with the judge telling you the order needs varying anyway. Our family law mediation page covers how that process runs.

The application is filed in the Federal Circuit and Family Court of Australia with an affidavit setting out each alleged breach separately, together with your section 60I certificate. From there the court moves it in stages.

1. Filing and a first return date, often within a few weeks. The other party is served and files a response saying whether the contravention is admitted and whether a reasonable excuse is claimed.
2. The court decides whether a breach is established. The standard of proof rises for the more serious outcomes, and where the court is considering punitive orders the criminal standard of beyond reasonable doubt applies (Family Law Act 1975 (Cth) Division 13A).
3. Reasonable excuse is considered. The person alleged to have breached carries the burden of establishing it, and it is a defined concept in the Act rather than general fairness. It is narrower than most people assume. We work through it in what counts as a reasonable excuse for not following a parenting order.
4. The court decides what to do. The options depend on which contravention category the conduct falls into and whether there is a history, and the range is set out in penalties and orders a court can make for contravening a parenting order.

How long all of that takes varies with registry workload and whether the other party contests the allegations. Contested contravention matters are commonly measured in months rather than weeks, and a matter that also requires the parenting order to be varied will take longer again.

Two drafting habits make the allegations far easier for a judge and the other party to follow. Plead each breach as a separate numbered allegation with a date, a time, and what the order required on that date, because nobody can make a finding on "he has breached the orders repeatedly since March". Then attach the primary evidence rather than your summary of it: the message thread, the school sign-out record, the handover diary entry written that same evening. A note made contemporaneously carries far more weight than a reconstruction typed the week you filed.

The most common outcome is make-up time and a variation of the parenting order. Division 13A is built to restore the relationship the order was meant to protect, and punishing a parent sits well down the list of the court's instincts.

Roughly from most common to least, the realistic ladder of outcomes runs like this:

• No order, because the breach was not established or a reasonable excuse was accepted
• Make-up time for the occasions that were missed
• Variation of the existing order to remove whatever caused the friction
• An order to attend a post-separation parenting program
• A costs order against the party who breached, or against an applicant who filed without merit
• A bond, with conditions
• A fine, a community service order, or imprisonment, reserved for the most serious and repeated cases

Frustrated parents are regularly sold a different story about what all this can achieve. Filing a contravention application does not usually result in the other parent being punished, and on its own it almost never changes where the child lives. A repeated and serious pattern of non-compliance can be relevant evidence in a separate application to vary the parenting order, but the contravention application itself is about compliance with the order that already exists. If your real goal is to change the child's living arrangements, this is the wrong vehicle, and you need a variation application, which brings its own threshold. See changing parenting orders that no longer work: the Rice and Asplund threshold.

The risk runs in the other direction too. Where the court finds an application was made without reasonable grounds, it may order the applicant to pay the other party's costs. A thin application built on two late handovers can end with you writing the cheque.

Three situations call for something else: the child is at risk, the child has not come back at all, or the order itself no longer works. Each has a faster or more appropriate pathway.

If handover time has passed and the child is not back, a recovery order is the mechanism, and it is urgent. Do not wait to see whether they turn up next week. See recovery orders: what to do when a child is not returned.

This is also the point where police become relevant, and only here. Queensland police do not typically enforce parenting orders in the ordinary case, because a parenting order is a civil order of a federal court. They act where there is a recovery order naming them, or where there is a criminal offence or a domestic violence protection order in play.

A parent who withholds a child out of a genuine, reasonably held fear for the child's safety may have a reasonable excuse, and the more pressing question in that situation is protection rather than compliance. Domestic and family violence protection orders in Queensland are made under state legislation and run alongside Commonwealth parenting orders rather than instead of them (Domestic and Family Violence Protection Act 2012 (Qld)). Where the two conflict, get legal advice quickly. Our domestic violence page sets out the immediate steps.

Children change schools, start work and form views. Parents remarry and relocate. If both of you agree the parenting arrangements need updating, consent orders are far cheaper and faster than litigating a breach of an order neither of you is following.

Document the breach the same day, in writing, in a form that will still exist in six months. Prompt, accurate records can make it much easier to assess whether court action is justified at all.

• Write a dated note that day: what the order required, what happened, who was present, what time.
• Send one calm written message to the other parent asking for the child to be made available and offering make-up time. Keep it factual. It will be read out loud in court, so write it for that audience.
• Save the evidence outside the app it lives in. Screenshot the messages, export the thread, keep the school pickup log or the childcare sign-out record.
• Do not withhold in return. Retaliating turns one contravention into two and destroys the moral advantage you started with.
• Do not question the child about it. A judge who reads that you interrogated a seven-year-old will draw conclusions about your parenting, not the other parent's.
• Book advice before the second or third incident rather than after the tenth. Three well-documented breaches are stronger than a year of vague grievances.

One version of retaliation comes up often enough to name outright. Stopping the other parent's time because child support has not been paid is not an option. Child support and time with the child are separate obligations, withholding time over unpaid support is itself a contravention, and it will count against you. Child support is enforced through its own process.

Queensland Family Law Practice assists separated families from its Queensland offices. Parenting-order proceedings are governed by Commonwealth family law rather than a separate Queensland parenting-order system. A Queensland family lawyer can advise on filing arrangements, attendance options and the interaction between federal parenting orders and Queensland domestic violence orders.

If the other parent is not following the order, the first question is whether you have an enforceable order and a documented breach. Bring your order, your dated notes and your message thread, and we will tell you plainly whether a contravention application is worth filing or whether mediation, a variation or a recovery order is the better path. Ask us about the legal and practical support currently available during separation.

Call (07) 3172 3777, email enquiries@qflp.com.au, or book your consultation at our Kelvin Grove or Birtinya office.