Regardless of their relationship status (i.e. married, never married, separated or divorced), all parents have legal responsibility for their children until they turn 18, unless a court orders otherwise.

Court orders relating to children are known as parenting orders. Parenting orders cover all aspects of care and welfare arrangements for children.

Applications for parenting orders can be made in the Federal Circuit and Family Court.

Terms such as “contact” and “residence” were used previously but the court now uses the terms “spends time with” and “lives with”.

Other specific types of parenting orders include:

Parental responsibility

When the court makes a parenting order, the Family Law Act 1975 (Cth) requires it to regard the best interests of the child as the most important consideration [s 60CA].

From 6 May 2024, the court no longer presumes that it is in the best interests of a child for their parents to have equal shared parental responsibility. Parents are nevertheless encouraged to consult each other and make decisions together about major long-term issues where it is safe to do so, unless the court orders otherwise [s 61CA]. Major long-term issues might include education, religious and cultural upbringing, and medical treatment.

From 6 May 2024, the court is also no longer required to consider ordering a child to spend equal time with each parent. This was previously required if an order for equal shared parental responsibility was made.

The court may nevertheless consider equal time arrangements, or substantial or significant time arrangements, if it is in the child’s best interests.

The Commonwealth Attorney-General's Department has a comprehensive guide on Parenting Orders - what you need to know.

Most disputes concerning children are between the parents of the children. However, anyone who is concerned about the care, welfare or development of the child may apply to the court [Family Law Act 1975 (Cth) s 69C(2)(d)].

This could include:

Grandparents may find our Having a grandchild in your care factsheet helpful.

For the court to have jurisdiction with respect to a child, the child and at least one of the parties to the application must be

The court does not have the power to make any orders in relation to a child who is outside Australia, including situations of international parental child abduction.

Children can also apply for parenting orders (not including child maintenance orders) from the Federal Circuit and Family Court [Family Law Act 1975 (Cth) ss 64B and 65C(b)].

A child who applies for parenting orders must have a case guardian (also known as a next friend), unless the court is satisfied that the child understands the nature and possible consequences of their case and is capable of conducting it. If a child applies without a case guardian, the court may appoint one [Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 3.13]. Any adult that has no interest adverse to that of the child and who can fairly and competently conduct the case for the child may consent to being a case guardian [r 3.14].

The court may order the case guardian to pay costs [r 3.13] or that costs of a case guardian be paid by another party to the proceedings or from the income or property, if any, of the child [r 3.18].

Before any action is taken in the Federal Circuit and Family Court, certain steps must usually be taken (called pre-action procedures), unless the matter is exempt or potentially exempt from this requirement. These steps are designed to ensure that reasonable attempts are made to resolve the matter without going to court.

Family dispute resolution required for all parenting order applications

Before bringing an application for parenting orders, both parties must attempt to resolve their dispute by family dispute resolution, unless an exception applies [Family Law Act 1975 (Cth) s 60I(8)]. See Coming to an agreement for more information.

Pre-action procedures

There are also pre-action procedures set out in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 1. These need not be complied with where there is a risk of family violence, urgency, undue prejudice or there has been a previous application in the same cause of action in the last 12 months [r 4.01(3)].

At the time of filing an application to start a proceeding, each party must file a Genuine Steps Certificate outlining:

The pre-action procedures are set out in Schedule 1 to the Rules. They require the following (if it is safe to do so):

It is expected that a party will not start a proceeding by filing an application unless the proposed respondent does not respond to a notice of intention to start a proceeding, or if no agreement can be reached after a reasonable attempt to settle the matter by the required correspondence.

Schedule 1 also sets out that both parties must comply, as far as practicable, with the duty of disclosure set out in rule 6.01. This means that each party will disclose to the other all information that is relevant to the issues in dispute in a timely manner. Copies of relevant documents such as medical reports and school reports should be exchanged. Sub rule 6.05(2) lists relevant documents that must be disclosed in parenting proceedings.

Anyone who does not comply with these requirements (unless exempt under sub rule 4.01(2)) risks serious consequences, including costs penalties. Where there is unreasonable non-compliance, the court may order the non-complying party to pay all or part of the costs of the other party or parties in the case. The court may also take compliance or non-compliance into account when making orders about case management and may stay a proceedings pending compliance.

The court expects parties to take a sensible and responsible approach to pre-action procedures and parties must not use the pre-action procedure for an improper purpose (for example, to harass the other party or to cause unnecessary cost or delay). Parties must not raise in their correspondence irrelevant issues or issues that might cause the other party to adopt an entrenched, polarised or hostile position [see Schedule 1 to the Rules].

For more information, see the Court's brochure Before you file - pre-action procedure for parenting cases.

Family law applications are now filed electronically through the Commonwealth Courts Portal. Parties who are unable to file documents online may submit their application in hard copy through the Federal Circuit and Family Court Registry. For more information and to access the court forms, visit the Federal Circuit and Family Court website.

Once an application has been filed with the court, a copy must be served on the respondent (the person against whom the proceedings are being taken). If the application is to be contested, the respondent must prepare a document called a Response.

Court fees

For the current court fees, and information about seeking a reduced fee on the basis of your financial hardship, visit the Federal Circuit and Family Court website.

Legal costs

Generally, parties involved in family law proceedings pay their own legal costs.

Chapter 12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) describes the costs solicitors may charge for work done in family law proceedings. Under rule 12.17, costs may be charged in accordance with a costs agreement or, if there is no costs agreement, in accordance with the Itemised Scale of Costs [see Sch 3].

When making a costs agreement with a client, a lawyer must advise the client to obtain independent legal advice about the costs agreement. If the client agrees to enter into a costs agreement, the costs to be charged must be set out in a written agreement signed by the client and the solicitor.

Costs orders

In certain circumstances, the court may make a costs order against a party, either on application or of its own motion.

From 6 May 2024, parties and their lawyers may be liable for costs if they have failed to meet their statutory duty to conduct proceedings in a manner consistent with the overarching purpose of family law. Section 95 of the Family Law Act 1975 (Cth) provides that the overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:

Section 96 requires parties and lawyers to conduct proceedings (including negotiations for settlement) in a manner consistent with the overarching purpose. When considering whether to make a costs award, the court must consider whether the parties have failed to comply with this duty, and may award costs, including costs against a lawyer personally, accordingly.

Disputing costs

Chapter 12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) sets out the process for disputing costs.

Party to party costs

Only disputes about costs between parties (i.e. party to party costs) can be adjudicated by the Federal Circuit and Family Court. Where a party wishes to dispute the costs awarded to or against them, a Notice Disputing Itemised Costs Account must be served on the other party within 28 days of being served with the account.

The parties to the dispute must make a reasonable and genuine attempt to resolve the dispute [r 12.37]. If the dispute cannot be resolved, either party can take it to court by filing the itemised costs account and a Notice Disputing Itemised Costs Account with the court no later than 42 days after the Notice Disputing Itemised Costs Account was served.

Lawyer/client costs

Disputes between lawyers and clients regarding costs are no longer dealt with by the Federal Circuit and Family Court. Where a person has a dispute with their lawyer regarding costs, they must make an application to either the Legal Profession Conduct Commission (see Complaints about overcharging) or to the Supreme Court of South Australia for the resolution of the dispute (see Adjudication of legal costs).

Timeframes for hearings may vary depending on the nature of the application, how many matters the court already has listed, and whether the application was lodged during a busy time of year (such as the Christmas and New Year period). Unless the matter is urgent, it is generally first heard approximately 6 weeks after the application was filed. The parties can represent themselves, and anyone over the age of 18 years can attend.

In certain emergency situations - for example, when one parent fails to return the child to the other parent in accordance with a court order, parenting plan or the child’s long term living arrangements - an application for an urgent hearing can be made.

Limited police involvement

Even if the other party is breaching existing court orders, the police will not get involved unless there is another court order authorising them to do so. If you are concerned about a child’s welfare, you can ask the police to check on the child, but usually they cannot do more than that without the court specifically authorising them to. You therefore need to apply for an urgent hearing.

Urgent hearings

The application must be filed with the court and served on the other party immediately, and the matter is heard as soon as possible.

Applications forms and what orders to seek

If there are no current court proceedings, you need to use anInitiating application form. All family law applications go to the Federal Circuit and Family Court. You will have to ask for final orders (for example, that the child lives with you) as well as interim orders. The interim orders you should ask for include an order that the application be heard urgently. You may also need to seek orders that the other person return the child immediately, that the parties be restrained from changing the child’s place of residence, and that the child’s name be added to the Family Law Watch List. You will need to file an Affidavit with your application, in which you explain why the matter is urgent and why you are asking for those orders.

If there is already a case going through court, the form to use is an Application in a Proceeding, together with an Affidavit.

Ex parte hearings

In cases of extreme urgency - for example, where it is feared that a child may be taken out of the country – you can ask the court to make an order before you have served the application on the other party. This means that the other party is not given notice of the hearing, so the hearing is held ex parte (in the absence of the other party). The court usually wants to hear from both parties, so ex parte orders are rarely made.

Passports and police warrants

As with any application, the court can order the surrender of passports (including the child's), and may issue a warrant to authorise the police to stop and search any vehicle, vessel or aircraft, or enter and search any premises, in order to take possession of a child.

To finalise a matter

Ordinarily, a matter takes about 18 months to progress from application to trial.

If the court is unable to hear the matter at the time it is listed for trial it may be put off for a further two or three months.

There is however provision for a matter to be listed for trial urgently in certain circumstances. The procedure is to write to the Judges Listing Committee requesting an urgent listing and setting out convincing reasons. Of course there is often a wide gap between the court's perception of urgency and that of the parents. If the Committee is satisfied that the case is urgent, they will give the matter an early pre hearing conference date leading to a trial in a much abbreviated time.

In general, an urgent trial listing should not be expected where the issue of urgency can be adequately addressed by interim orders addressing the situation until trial.

The Court applies Part VII of the Family Law Act 1975 (Cth), which relates to children.

Section 60B of the Act sets out the objects of Part VII. Part VII is intended to:

When the court makes a parenting order, the Family Law Act 1975 (Cth) requires it to regard the best interests of the child as the most important consideration [s 60CA].

How does the Court work out what is in the best interests of the child?

Pursuant to s 60CC, in deciding what is in the best interests of a child, the court must consider:

In considering these matters, the court must also consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order intervention order that applies or has applied to the child or a family member [s 60CC(2A)].

Where orders are being made with respect to an Aboriginal or Torres Strait Islander child, the court must also consider [s 60CC(1)(b), (3)]:

Harm and Unacceptable Risk

In considering what parenting orders to make, the Court is required to determine both:

In the case of Isles & Nelissen [2022] FedCFamC1A 97, the Court on appeal clarified that the test for ‘unacceptable risk’ is not proof on the balance of probabilities but rather the “assessment of risk is an evidence-based conclusion and is not discretionary… The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not” [at paragraph 85]. The Court stated [at paragraph 7]:

On the question of what evidence is, or should be, admissible on this issue, the Court stated [at paragraph 105]:

Ultimately, the Court must make orders that are in the best interests of the children and an evidence-based finding of unacceptable risk is one of the many considerations in the exercise of this discretionary power [at paragraph 85].

Supervised Contact

Supervised contact means that the Court wants a responsible third person present when a parent spends time with their child. The Court may decide it is appropriate that a parent spend supervised time with their child because:

Supervised contact may be ordered by the Court at the end of court proceedings (in a Final Order) or at any point during proceedings (in an Interim Order).

Supervised contact can be done privately through another family member or a friend, through a privately engaged supervisor or through a Family Contact Service. A Family Contact Service is a neutral place where a parent and child can spend time together in a safe environment.

There are a number of Family Contact Service providers in South Australia, depending on where the parties are located. Some Family Contact Service providers include:

If you have been asked to supervise contact between a child and a parent, more information is available in our ‘Should I Supervise Contact?’ Factsheet.

Parties to a case have a duty to make full and frank disclosure of all information relevant to the issues in dispute in a timely manner. This duty starts at the pre-action procedure stage before the case commences and continues until the case is finalised.

In South Australia, a Notice of Child Abuse, Family Violence or Risk must be filed with any initiating application, response, or application for consent orders for parenting matters in the Federal Circuit and Family Court of Australia.

In attempting to resolve a parenting dispute, parties should also, as soon as practicable, exchange copies of documents in their possession relevant to an issue in dispute (e.g. medical reports, school reports, letters, drawings, photographs).

Any documents that have been disclosed can only be used for the purpose of resolving the dispute for which they were disclosed.

In making any decision about a child the court must consider any views expressed by the child [Family Law Act 1975 (Cth) s 60CC(2)(b)]. The weight the court will give to the child's views will depend on any factors the court thinks relevant, such as the child's maturity and level of understanding.

There is no rule that says that children of a particular age can make independent decisions about where they live. There are a number of reasons for this, including the fact that age does not necessarily always match maturity. Children often express to each parent a wish to live with them, but may do so out of concern to maintain close contact with that parent and not to lose them from their lives, rather than with an adult understanding of the consequences.

Practical issues may arise when orders are made in respect of children aged 16 and older. A child of 17 years is unlikely to be forced to follow a parenting order about where they should live. In these circumstances, resorting to the court to enforce an existing order may be ineffective.

Children do not give evidence to the court, and the Judge will not usually see or speak to the children. The children's wishes are ascertained via a Court Child Expert providing a family assessment, or through the appointment of an Independent Children's Lawyer.

The Federal Circuit and Family Court has prepared a video titled How the voice of the child is heard?

The court may order (of its own motion, or when a child or any other person or organisation concerned with the child's welfare applies) that the child's interests be independently represented [Family Law Act 1975 (Cth) s 68L] and ask the Legal Services Commission to arrange the representation.

In the case of Re K (1994) FLC 92-461 the Full Court of the Family Court laid down extensive guidelines for cases in which an independent children’s lawyer should be appointed. A lawyer may be appointed where:

An independent children’s lawyer does not act on instructions from the child and, in this sense, is not the child's lawyer [Family Law Act 1975 (Cth) s 68LA(4)]. Rather, they gather evidence to be presented to the court to help it determine orders that will be in the best interests of the child.

The independent children’s lawyer may propose any orders they consider to be in the best interests of the child. They may choose to support or oppose orders proposed by either of the parents.

From 6 May 2024, an independent children’s lawyer must meet with the child and give them an opportunity to express their views about the court proceedings [s 68LA(5A)]. This requirement will not apply if:

The court will never require an independent children’s lawyer to disclose the child’s views to the court [s 68LA(6)]. The independent children’s lawyer may disclose information the child tells them if the disclosure is in the best interests of the child [s 68LA(7)].

At trial, parties do not usually give oral evidence in chief. Evidence is usually presented through affidavits which must be sworn, filed and served on the parties before the trial. Directions for the dates for completing this task are usually given at the pre hearing conference and a compliance check ensues.

The affidavit sets out the evidence in chief of each witness proposed to be called by a party. In the case of the applicant or the respondent their affidavit should be comprehensive. The following matters should normally be addressed:

As with all affidavits, the deponents should only include factual matters and should not include speculations or expressions of opinion. They should also be free of hearsay, that is, evidence of things which are not within the parent's personal knowledge but have been gleaned from other sources such as second hand reports, the media or text books. A parent is not considered by the court to be an expert in respect of their child, so they should not include their opinion about the child's mental or physical health.

Family assessments/counselling reports

Section 62G(2) of the Family Law Act 1975 (Cth) provides for the court to direct a family consultant (court counsellor) to make a report. In making a report, the consultant will commonly interview each parent and child individually, unless the child is of an age or maturity where this is inappropriate. Commonly also the consultant will observe interactions between the child and each party. Conversations with a consultant are not confidential. A report is prepared for the court and circulated to the parties. Although the consultant's opinion is not binding on the court and is just another opinion to be considered with the rest of the evidence, as it is an independent assessment of the situation it is generally persuasive.

Because of the high demand for reports, it is not practicable to obtain family assessment reports on an interim basis and they can normally only be ordered at a pre-hearing conference. For this reason, the parties sometimes arrange for a family assessment by a private practitioner to have a report available sooner. Where the parties agree, they can do this without the appointment of an independent children's lawyer, but if agreement cannot be reached then an application for an independent children's lawyer to be appointed may result in the representative arranging a family assessment. Parents are usually required to contribute to the cost of the family assessment, and where they are unable to do so and are not legally aided, the report ordered by the court is an alternative.

Psychological reports

Although a party can ask the Federal Circuit and Family Court to order a child to undergo a psychiatric or psychological assessment, this should only be done in appropriate cases. The court can give any direction relating to the assessment that appears necessary having regard to the welfare of the child. Where a direction of the court has not been obtained, the court can refuse to admit the report in evidence unless all parties gave written consent to the referral. Where someone is threatening to obtain a psychological assessment it may be possible to obtain an injunction preventing it.

Expert witnesses

As part of the pre-action procedures, a party may require that information be sought from an expert witness. The rules about instructing and obtaining reports from an expert are in Chapter 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

In summary:

Cross-examination

Witnesses can be cross-examined as part of family law proceedings. Special protections exist for the personal cross-examination of a party in family law proceedings where there is an allegation of family violence and certain criteria are met. For more information, see Family Violence and Cross-Examination of Parties Scheme.

Ordinarily the parentage of a child is acknowledged by both parents. The Family Law Act 1975 (Cth) contains a number of legal presumptions as to the parentage of a child.

The law presumes that:

Declaration of paternity

Disputes sometimes arise where there is a request for child support or a parent wishes to spend time with their child. If paternity is at issue in a matter before the court, either parent may ask the court for a declaration of paternity. A man seeking to refute a presumption of parentage must prove on the balance of probability that he is not the child's biological father.

DNA paternity testing

Parties contesting or asserting paternity can access DNA tests to establish paternity to the satisfaction of the court. DNA is made up of identifiable substances unique to each person, but which include some inherited from parents. DNA testing is accepted as the most definite proof of the physical relationship between humans. It is often referred to as a 'genetic fingerprint' and shows the links between individual body fluids in separate blood samples. The technique used to detect these links is known as DNA profiling. This technique is more effective than blood tests and blood typing because DNA can determine the identity of the parent to within 99.5% certainty as opposed to the process of elimination used in blood typing.

When will the court order DNA testing?

The court cannot order DNA testing unless it relates to existing proceedings. Orders for DNA testing cannot be made simply to satisfy the curiosity of a parent. They will only be ordered where they are needed to determine whether any parenting application is in the best interests of the child concerned.

Costs

Tests are done privately for a fee which varies between providers. Court orders for paternity tests are paid by the person who wants the results as evidence in their case. If a party receives legal aid, Legal Services may pay. The unsuccessful party will normally be ordered to pay costs. If there is no real doubt about paternity, applicants should be warned against baseless or vexatious applications, as they will be likely to pay the costs.

Location and recovery orders are provided for by Part VII Division 8 Subdivision C of the Family Law Act 1975 (Cth). They cover the situation where a person is prevented from having contact with their children because the other parent has taken the children without disclosing their whereabouts. In appropriate circumstances the court can order anyone with knowledge of the other parent's whereabouts to disclose this information to the court. Such orders are commonly made to obtain information from Centrelink, the ATO, and banks.

Parenting orders required for location or recovery order

To apply for a location or recovery order, a person must also apply for a parenting order or have an existing order. If a person has only a parenting plan or verbal agreement about who the children live with and spend time with, they will need to apply for parenting orders when they apply for the location order.

Protection for family violence victims

Any information divulged to the court under a location order must not be provided to the person who applies for the order [s 67P]. Instead, the information is disclosed to other persons such as a lawyer, court official, process server or police officer. This is to protect a victim of family violence from being placed at risk of harm. In the case of an unrepresented party, if a location order is granted, the usual procedure would be for the court to either to supply the information to a marshal who can arrange for the other party to be served, or else to appoint a child representative to contact the other party.

Police powers under recovery orders

The court may order the return of the child by way of a recovery order which will be carried out by the Federal Police [Family Law Act 1975 (Cth) s 67R]. As an ancillary power, the police may stop and search any vehicle, vessel or aircraft on which the child is suspected to be. In practice, Federal Police may not have the resources at any given time to retrieve a child and this can lead to some delays or to the involvement of SA Police at the request of Federal Police.

The police will not usually execute a recovery order unless the parent entitled to the benefit of the order is with them at or near the place where the child is to be recovered. If therefore the child has been taken interstate, the parent seeking the recovery of the child will have to travel interstate at their own expense before the order can be executed. If a parent has no resources to make the journey, it may be possible to seek emergency financial assistance from the Department for Child Protection.

Children taken overseas

The Hague Convention provides for the return of children from a member country to the member country of their origin. These applications are dealt with by the Australian Central Authority. For more information about making an application for the return of an abducted child to Australia, call the Australian Central Authority on 1800 100 480 or visit the Commonwealth Attorney-General's Department webpage on International parental child abduction, which includes a Guide for applicants - Applying for the return of a child under the Hague Convention. Assistance to complete applications may be available from the International Social Service, call 1300 657 843.

It is not uncommon for one or both parents to wish to relocate after a separation. If the relocation will not affect existing or proposed arrangements for children, it is less problematic. When it will affect those arrangements, these cases can be difficult to resolve with fairness to all parties involved.

Parents considering relocation should get legal advice. If one parent relocates without the other parent’s consent, the other parent (or person concerned with the care, welfare and development of the child) may apply to the Court for an order that the child be returned.

The Court has the power to order a child’s return if it determines that to be in the child’s best interests, and will often do so pending its determination. It is therefore advisable to obtain the other parent's consent and/or a court order permitting the relocation first.

An attempt at family dispute resolution is usually required before applying for parenting orders, including orders relating to relocation. See What needs to be done before applying?

Whilst the Federal Circuit and Family Court has ruled that relocation cases are not a separate type of case, in determining the best interests of a child, the following is a list of factors that may be considered. This list is by no means exhaustive as each case will be assessed individually according to the circumstances involved.

If a parenting order states that a child is to live with one parent and that parent dies, and the parenting order does not say what is to happen in the event of that parent's death, the child will not be required to live with the surviving parent [see Family Law Act 1975 (Cth) s 65K]. A parent can appoint someone else to take over as guardian of the child in the event of their death, but this is not in any way binding either, and will merely be taken as an expression of the deceased parent’s wishes.

In the event of a dispute, the surviving parent (or another person such as a relative or friend of the deceased parent who is acting as guardian) may make an application to the Federal Circuit and Family Court to determine this and any other issues. The application will be decided in the same way as any other, on the basis of all of the circumstances at the time, and with the child's best interests as the paramount consideration.

The Court has established a Critical Incident List to fast-track applications by a non-parent carer where there is no parent available to care for the children as a result of the death, critical injury or incarceration (relating to or resulting from a family violence incident) of the parents. For more information, see the Family Law Practice Direction: Critical Incident List.

Parenting orders end when the child turns 18, marries, enters into a de facto relationship or is adopted by another person [Family Law Act 1975 (Cth) ss 65H(2) and 65J(2)].

Where the child is adopted by a step-parent, parenting orders are not altered unless the Court approves the adoption. See FAMILY RELATIONSHIPS - Adoption.

Parenting orders can be varied by application to the court. The court will generally only allow a final order to be varied where the parties agree or where there has been a significant change of circumstances since the order was made and a variation is in the best interests of the child [s 65DAAA].

Parenting orders create legal obligations and are legally enforceable by the parties. The Court expects that all parties will follow parenting orders.

The parties are usually given a copy of the Court’s information sheet Parenting orders – obligations, consequences and who can help.

If one party fails to follow a parenting order (that has not been changed by a subsequent parenting plan [Family Law Act 1975 (Cth) s 70 NBB]), the other party may file either:

[see Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) r 11.64].

There is no fee to lodge either of these applications, but cost orders can be made against an applicant where a contravention, for example, is not established.

It is important to obtain legal advice before making any application.

Which type of application

If the party seeking to enforce the parenting order does not want the other party to be punished for failing to follow it and simply wants make-up time with the child or wants to enforce handover, they may file an enforcement application rather than a contravention application.

If the party seeking to enforce the parenting order also wants the other party punished for failing to follow the orders, then a contravention application may be more appropriate.

If one party removes a child and refuses to return a child, an application for a location and recovery order may be more appropriate, see ‘What if one parent refuses to return the children?’.

See further information about enforcement and contraventions on the Court’s website:

Children: Compliance and enforcement

How do I apply to the Court when parenting orders have been contravened (breached) or not complied with?

Both enforcement and contravention matters may be referred to family dispute resolution, counselling, or specified parenting programs [Family Law Act 1975 (Cth) s 13C].

Enforcement Applications

An Application - Enforcement needs to be filed and served together with a prescribed brochure and an affidavit with a copy of the orders to be enforced. Further documents relating to pre-action procedures may also be required.

The Registry Manager must fix a date for hearing that is as near as practicable to 14 days after the day of filing [Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 11.66].

Contravention Applications

Before filing

It may not be necessary to obtain a section 60I certificate from a family dispute resolution practitioner before filing a contravention application where an exception applies, such as risk of child abuse or family violence, or urgency. There is a further exception where:

Burden of proof

The party bringing the application will need to prove the contravention. An order is contravened where the party:

Standard of proof

For the purposes of serious penalties (such as a bond, a fine, community service or imprisonment), the applicant will need to prove the contravention beyond reasonable doubt [s 70NAF(3)]. This is the same standard of proof as in criminal matters.

For less serious penalties, the contravention need only be proved on the balance of probabilities, that is, that the contravention is more likely than not to be true.

Reasonable excuse

The other party may admit the contravention but defend it on the basis that they had a “reasonable excuse”.

A party may have a reasonable excuse for contravening an order if [s 70NAE]:

or

There may be other circumstances where the Court will be satisfied that a party had a reasonable excuse to contravene a parenting order.

The party will need to prove they had the reasonable excuse on the balance of probabilities [s 70NAF(1)]. This means that the excuse is more likely than not to be true.

Possible orders the Court can make

Where there is no contravention

If the Court finds that there was not any contravention, the Court may make an order that the applicant pay the other party’s legal costs [s 70NCB]. The Court may also change the existing parenting orders [s 70NBA].

Where there is contravention, but also a reasonable excuse

If the Court finds that there was a reasonable excuse for the contravention, but the contravention resulted in the applicant losing time with the child, the Court must consider making an order compensating the applicant for time lost with make-up time [s 70NDB].

If no order is made compensating the applicant for lost time the Court may make an order that the applicant pay the other party’s legal costs [s 70NDC]. The Court may also change the existing parenting orders [s 70NBA].

Where there is a contravention without reasonable excuse

If the Court finds that there was no reasonable excuse for the contravention, the way it is dealt with depends on its seriousness.

It will be less serious if the Court has not already previously made orders or adjourned a matter in relation to contravention by the party. However, if the contravention shows a serious disregard for the party’s obligations under the parenting order, the Court may treat it more seriously anyway.

Less serious contraventions may be dealt with by way of orders for [s 70NEB]:

More serious contraventions may be dealt with by way of orders for [s 70NFB]:

Changing court orders

Whether or not a contravention is proved or there was reasonable excuse, the Court has the power to change existing parenting orders as part of contravention proceedings [s 70NBA]. However, there usually needs to be a significant change in the circumstances before a final order is changed.

Filing and listing of contravention applications

The Federal Circuit and Family Court of Australia has a dedicated electronic National Contravention List. Contravention applications will be given their first court date before a Contravention Registrar within 14 days of filing. A Contravention Application needs to be filed and served together with additional documents such as an affidavit, a copy of the orders alleged to be contravened, and section 60I certificate or affidavit relating to exemption from family dispute resolution. A Genuine Steps Certificate, may also be required, in accordance with pre-action procedures, see What needs to be done before applying?

For more information, see also the Court’s National Contravention List Practice Direction