Introduction
Q1: What is the worst that can happen if I breach a parenting order?
A: A serious breach can land you up to 12 months in prison under Division 13A of the Family Law Act 1975. But the court will only go that far if it is satisfied no lighter penalty will work. Reference: Oswin & Oswin [2019] FamCAFC 164
Q2: I only made a small technical mistake. Will I still be penalised?
A: Not always. The court can find a breach proved but choose not to impose any penalty. If the issue has already been fixed, the person who brought the application could end up paying your legal costs for wasting the court's time. Reference: Adam & Tan [2019] FamCA 964
Q3: Will penalties get worse if I keep breaching the same order?
A: Yes. Repeated breaches show the court you are not taking your obligations seriously. The court will treat it as a more serious matter, which opens the door to heavier penalties: fines, bonds, or even prison. Reference: Peluso & Karle [2023] FedCFamC1F 87
What penalties can you face for breaching a parenting order?
The court's goal is to make you follow the order going forward, not to punish you for what happened in the past. Division 13A of the Family Law Act 1975 (Cth), as amended in May 2024, gives the court three tiers of power:
Without needing to find a contravention (s 70NBA), the court may:
- Order make-up time for lost contact
- Vary or suspend the parenting order
- Require attendance at a parenting program
If the contravention is proved without reasonable excuse (s 70NBF), the court may:
- Require the party to enter into a good behaviour bond
- Order compensation for expenses caused by the breach
If the contravention is proved beyond reasonable doubt, the court may also:
- Impose a fine (up to 60 penalty units)
- Impose imprisonment (up to 12 months)
"[T]he focus of a court in dealing with a contravention application under Division 13A of the Act must be in making orders which will enforce future compliance with its orders. [F]or a court to decide to punish a party who has been found to have contravened an order for the purposes of making other like-minded persons comply with orders relevant to them... would be an error of law."
The bottom line: penalties exist to make you comply in the future, not to punish what you did in the past. The court cannot pile on heavy penalties just to send a message to other people.
The father filed a contravention application against the mother over a final consent order. The mother and their 11-year-old child lived overseas. The father lived in Australia. He claimed the mother did not give 60 days' notice before international travel and missed a scheduled phone call with the child.
The mother admitted the technical breaches but showed she had already fixed the communication issues. The trip was only a short weekend away. The father himself admitted that calls had resumed since he filed the application.
Outcome: The court found two breaches proved but imposed no penalty. The judge called the application petty and unnecessary because the mother had already sorted things out before the hearing. The father was ordered to pay $2,750 toward the mother's legal costs.
A breach on paper does not guarantee a penalty. If the breach was minor, technical, and already fixed, the person who filed the application may end up paying costs for wasting the court's time.
What makes one breach more serious than another?
A breach counts as more serious if you showed serious disregard for your obligations, or if there is a pattern of repeated breaches. When deciding on a penalty, the court looks at:
- Number and frequency of breaches. A single technical slip is treated very differently from dozens of deliberate violations.
- How deliberate the breach was. Was it a genuine oversight, or a wilful refusal to comply?
- Impact on the child. Did the breach actually harm the parent-child relationship or the child's welfare?
- Steps taken to fix it. Did you do anything to correct the problem?
| Comparison | Adam & Tan [2019] | Peluso & Karle [2023] |
|---|---|---|
| Number of breaches | 2 technical breaches | 22 deliberate breaches |
| Nature of breaches | Late travel notice, missed phone call | Systematic denial of contact with the father |
| Severity classification | Less serious | More serious |
| Penalty imposed | No sanction; applicant ordered to pay costs | 24-month good behaviour bond |
| Decisive factor | Already remedied; trivial matter | Persistent pattern; serious disregard for obligations |
Key distinction: Adam & Tan had 2 technical breaches that were already fixed. No penalty. Peluso & Karle had 22 deliberate breaches forming a persistent pattern of alienation. Result: a 24-month good behaviour bond. The heavier the misconduct, the heavier the penalty.
When can you be sent to prison for breaching a parenting order?
Prison is the heaviest penalty the court can hand down, and it only applies to more serious breaches. Before locking someone up, the court must clear two hurdles:
- The breach must be proved to the beyond reasonable doubt standard (the same as in criminal cases)
- The court must be satisfied that no lighter penalty will work
Even when both conditions are met, the court must be sure that prison will actually get you to comply in the future. It cannot use prison as punishment.
The father accused the mother of breaching parenting arrangements. He said she enrolled their 12-year-old son in a new school without consulting him and refused to sign passport applications. The trial judge decided on his own to consider imprisonment, found the mother guilty, and sentenced her to 7 days in jail (suspended for 2 years). The mother had no lawyer.
The Full Court threw out the conviction and sentence. The trial judge had not applied the beyond reasonable doubt standard and had not protected the mother's right to a fair hearing. The Full Court also made clear that looking into school options is not the same as making a unilateral school decision that breaches a shared parental responsibility order.
Outcome: Appeal allowed. Conviction and prison sentence set aside.
This case sets a high bar for prison. The court must prove the breach to the criminal standard (beyond reasonable doubt) and must protect the respondent's right to a fair process. Prison is the last resort, used only after every other option has been tried.
Key takeaways
Penalties range from nothing at all to 12 months in prison. The court follows a clear logic:
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Penalties exist to make you comply, not to punish you. Oswin & Oswin established that the court enforces orders going forward. It does not punish for the sake of punishing.
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Severity matches the conduct. Adam & Tan's 2 technical breaches attracted no penalty. Peluso & Karle's 22 deliberate breaches resulted in a 24-month good behaviour bond.
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Prison is the last resort. It can only be imposed under the beyond reasonable doubt standard when no lighter penalty will work.
| Severity of Contravention | Typical Penalty |
|---|---|
| Minor technical breach (already remedied) | No sanction; applicant may bear costs |
| Less serious contravention | Make-up time, parenting program, order variation |
| More serious contravention | Bond, fine |
| Most serious persistent contravention | Imprisonment (up to 12 months) |
If the other party has breached a parenting order, you can file a contravention application to have the court step in.
