Introduction: Common Questions About Breaking Parenting Orders in Australia
Q1: Can I refuse to hand over my child if I'm concerned about their health and safety?
A: Yes, in specific circumstances, but you must have objective evidence. Australian family law recognises health and safety grounds for breaking an order, but subjective concerns alone are not enough. You must prove your belief was based on reasonable grounds and that the breach did not exceed the period reasonably necessary for protection. Reference: Kardos & Harmon [2020] FamCA 328
Q2: If my child doesn't want to go to the other parent's home, can I refuse to comply with the parenting order?
A: No, a child's wishes cannot justify a parent breaking an order. The law requires parents to take active steps to encourage their child to comply, rather than standing idly by while the child refuses. Simply saying you tried is not enough. Reference: Raider & Raider [2011] FamCA 488
Q3: If the other party breached the order first, can I withhold the child to make up for lost time?
A: No. Australian law explicitly prohibits tit-for-tat self-help remedies. When one party breaches an order, the correct response is to apply to the court for enforcement or compensation. Withholding the child yourself causes additional harm and undermines the authority of court orders. Reference: Bircher & Bircher [2022] FedCFamC1A 59
What Counts as a Reasonable Excuse for Breaking a Parenting Order?
Under section 70NAD of the Family Law Act, a person who breaks a parenting order can raise a reasonable excuse as a defence. The law sets a broad test. You generally need to prove that:
- Breaking the order was necessary to protect the health or safety of the child or yourself
- Your belief was based on reasonable grounds
- The breach did not last longer than necessary for protection
This means a genuine subjective belief is not enough. Your belief must also hold up under objective scrutiny.
Can Health Risks Constitute a Reasonable Excuse?
During the pandemic, health risks became one of the most common grounds for breaking a parenting order. The Court's position is clear: health risks can be a reasonable excuse, but they must be supported by objective evidence. What counts as reasonable may change as medical evidence evolves.
A landmark case from the pandemic period. The mother failed to send her three-year-old child to the father's location as ordered, citing concerns about COVID-19 infection during air travel.
The Court found the mother had a reasonable excuse, noting:
- Social distancing could not be maintained during flights under the circumstances
- There was an unacceptable risk of infection
- Interstate quarantine requirements created additional practical difficulties
Outcome: The application was dismissed. The Court emphasised that while parent-child relationships cannot be put on hold forever, the risk assessment at a specific point in time could support the breach.
Notably, Pandell & Walburg (No. 2) [2020] FCCA 1853 shows that a reasonable excuse can expire. The child had rheumatic disease requiring immunosuppressive medication, making them high-risk during the pandemic. The mother's initial decision to withhold the child, based on her GP's advice, was found to be a reasonable excuse. But once a specialist report said the child was not high-risk, the mother's continued withholding was no longer justified.
This shows that when medical evidence clarifies the risk, you must adjust your actions promptly and start following the order again.
How Does Subjective Belief Differ from Objective Reasonableness?
The law draws a line between subjective genuineness and objective reasonableness. Even if you genuinely believe your child is in danger, the Court will not accept a reasonable excuse defence if all objective evidence contradicts that belief.
A cautionary tale. The mother claimed the child had disclosed being sexually abused by the father, and she broke the parenting order 22 times as a result.
However:
- Police investigated and found the allegations unsubstantiated
- Child protection services investigated and found the allegations unsubstantiated
- Medical experts assessed the case and found the allegations unsubstantiated
Despite this, the mother maintained her belief and refused to allow the child to have contact with the father.
Outcome: All 22 breaches were proven, and the mother was placed on a 24-month good behaviour bond.
Having a genuine belief of the disclosure of sexual abuse made by a child is not a reasonable excuse per se. The belief must be genuinely held and the belief is based on reasonable grounds.
Case Comparison: Why Were the Outcomes Different?
| Comparison | Kardos & Harmon [2020] | Peluso & Karle [2023] |
|---|---|---|
| Core reason for breach | COVID-19 infection risk | Child's disclosure of sexual abuse |
| Genuineness of belief | Accepted by Court | Accepted by Court |
| Reasonable grounds for belief | Present (objective risk of being unable to maintain social distancing) | Absent (all professional investigations rejected the allegations) |
| Legal outcome | Application dismissed | All 22 breaches proven; 24-month bond imposed |
| Decisive factor | Objective evidence supported health risk | No objective evidence; only subjective insistence |
Decisive factor: The critical difference is whether the belief had objective support. In Kardos, the mother's concerns were backed by the pandemic environment and flight conditions. In Peluso, every professional investigation contradicted the mother's belief, leaving only subjective insistence.
Can a Parent Refuse to Comply Because the Child Doesn't Want to Go?
The child does not want to go. This is one of the most common excuses in practice. But the law is clear: you cannot passively accept your child's refusal as a reason to skip handover. Parents have a legal duty to actively encourage their child to follow the order.
Established the important principle of a parent's active duty. When a child expresses reluctance to visit the other parent, simply saying you tried and then standing idly by is not enough.
Outcome: The Court found the parent in breach. If you merely ask your child whether they want to go and then give up when they refuse, the Court will likely find you in breach of the order.
It is not a sufficient discharge of a custodian's obligations to point to words and actions and to say, in effect: "you see, I tried. But the child does not want to go" and thereafter to figuratively fold their arms as if that were the end of the matter... the custodial parent's role is an active role with an obligation to positively encourage access.
In practice, active encouragement means concrete steps. Prepare the child psychologically in advance. Create a positive handover environment. Avoid negative remarks about the other parent in front of the child. If the child's resistance persists, consider whether the other parent may be behind it, engage a child psychologist and, where necessary, apply to the Court to change the order. Do not rely on the child's refusal as a reason to stop complying.
When Can Fear Be a Reasonable Excuse?
In family violence situations, fear can be a reasonable excuse. The key question is whether external circumstances support the reasonableness of that fear.
Demonstrates how fear can be a reasonable excuse in specific circumstances.
The trial judge held that since the parties had had no contact since their 2008 separation and there had been no new incidents of violence, the mother's fear in 2010 lacked reasonable grounds.
The Appeal Court corrected this view, noting that changes in external circumstances can strengthen the reasonableness of fear:
- Changed dynamics: The father's criminal trial commenced, and the mother was cross-examined as a witness, altering the potential family dynamics
- Threat becoming real: The father had previously threatened to kill the mother if taken to court; when the criminal trial actually occurred and the father pleaded guilty, this threat became more tangible
- Reasonable belief: In the high-pressure environment of a criminal trial, the mother genuinely believed the breach was necessary for her safety, and this belief had factual support in the circumstances
Outcome: The Appeal Court overturned the trial decision, finding the mother's fear had reasonable grounds.
If you are living in fear of family violence, preserve all evidence of threats, police reports, and medical records. This objective documentation is critical to proving your fear was reasonable if your compliance is later challenged. Even if you believe non-compliance is necessary for your safety, seek legal advice as soon as possible. Apply to the Court for an urgent protection order or a change to the parenting order. Do not unilaterally stop complying indefinitely.
What Are the Consequences of Prolonged Deliberate Breach?
When breaking a parenting order is not a momentary lapse in judgement but a prolonged, deliberate defiance of the Court's authority, the consequences go far beyond ordinary contravention penalties.
Warns of the serious consequences of prolonged, deliberate defiance. The mother went into hiding with the child to prevent the child from living with the father.
Outcome: The Court refused to hear the mother's later applications. If you persistently and deliberately break court orders and show contempt for the law, the Court may:
- Refuse to hear your later applications to change orders
- Refuse to approve consent orders you agreed on
- Decline to provide further legal assistance to you
The Court should be slow to lend its assistance to a party who so clearly has treated the orders made by the Court and the Court itself, with such contempt. The relevant discretion ought to be exercised against determining any application.
Even if you firmly believe the current order is not in your child's best interests, continued defiance will only weaken your legal position. The Court may treat prolonged deliberate defiance as evidence that you put your own wishes above the child's welfare. This can ultimately lead to a complete reversal of parenting arrangements. If you believe the order no longer serves the child's best interests, file a variation application promptly. Do not take matters into your own hands. The longer you delay, the harder it becomes to rebuild credibility with the Court.
What Should You Do When Facing a Parenting Order Dispute?
- Objective evidence is critical: In Kardos & Harmon, the mother's breach was excused because objective pandemic risks supported her concerns. Subjective belief alone is never enough.
- Genuine belief does not equal reasonable grounds: In Peluso & Karle, despite the mother's sincere belief that the child was sexually abused, all professional investigations rejected the allegations, and all 22 breaches were proven.
- Parents have an active duty to encourage compliance: Raider & Raider established that you cannot passively accept your child's refusal as a reason not to follow a parenting order.
- Fear must be supported by external circumstances: In Tindall & Saldo, the Appeal Court found the mother's fear was reasonable because external circumstances, including the father's criminal trial, had changed the dynamics.
- Prolonged deliberate breach carries severe consequences: Thomas & Hogan warns that sustained defiance of court authority can lead the Court to refuse to hear any further applications.
Correct approach：
- Seek legal advice immediately when you encounter enforcement difficulties
- If you have safety concerns, gather objective evidence (medical reports, police records, etc.)
- Apply to the Court to vary the order or seek urgent relief
- Maintain written communication records with the other party
Wrong approach：
- Unilaterally deciding not to comply with the order
- Using the child doesn't want to go as an excuse for passive non-compliance
- Engaging in tit-for-tat retaliation when the other party breaches
- Ignoring the conclusions of professional investigating bodies while persisting in subjective beliefs
The core principle of Australian family law is that court orders must be respected and enforced. If you disagree with an order, apply through legal processes for variation. Do not decide for yourself whether to comply. If the other party has breached the order, you can file a contravention application to have the court step in.
