1. From your experience in the FCFCOA, what types of non-compliance create the greatest difficulties for parties and the Court?
One of the most complex and difficult to manage is what we refer to as "dysfunctional non-compliance". That is where a party produces some of what is required, attends to some court events, interviews, etc, complies eventually, but complies late. They can appear chaotic and disorganised but might not be, they may in fact be utilising the FCFCOA as a form of perpetrating further family violence through systems abuse. The reason this poses difficulties is that there is often "just enough" compliance to make progressing the matter pursuant to the default provisions, for example to an undefended hearing, quite difficult. It reflects a lack of strategy on the part of a practitioner that may be misplaced but may also be a product of an inability to give advice that is accepted and understood.
Where the type of non-compliance I've just referred to is intentional, to the extent that it is being used to as ongoing perpetration of coercive and controlling violence. Practitioners need to remember their professional obligations, including pursuant to Section 96 of the Family Law Act, and avoid being an accomplice (albeit unwilling) to this type of behaviour.
They should almost always be pressed where the other party's non-compliance has necessitated enforcement/compliance actions of some sort. Section 114UB(3) sets out very clearly the matters the Court must take into consideration when being asked to make an Order for costs. The "conduct of the parties" is often a significant actor, as is whether one party has been wholly unsuccessful in the proceedings. Make sure that information is before the court or is at hand for submissions. Be ready to make submissions on the day rather than requesting an opportunity to file.
Ignoring any non-compliance or poor conduct in the course of the litigation on behalf of their own client, which will be a factor the Court will consider under s114UB.
- Proof of service and compliance with all previous orders/directions
- Ensure that the orders sought are just and equitable or in best interests, and that the other party is on notice of the specific orders being sought by your client – do not change your case at the last minute
- Ensure that the orders sought are drafted in a way that they are capable of implementation and enforcement.
It is probably the second point from the question above, in relation to ensuring that the other party is on notice of the precise orders being sought - simply notifying them that the matter is listed for an undefended hearing is not sufficient.
7. What practical strategies can lawyers use to address non-compliance early and keep matters progressing efficiently?
If you are acting for the compliant party:
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Ensure your client's own strict compliance with orders/directions/service requirements
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Collate strong evidentiary material in relation to any non-compliance
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Consider proportionality before filing contravention or enforcement applications
If you are acting for the non-compliant party:
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Respond promptly to any enforcement/contravention applications
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If anticipating difficulty in relation to timeframes for compliance, seek variation ahead of time, rather than risking your client being in default.
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Remember Section 96 and comply!
Jennifer explores these issues further in the program Family Law Parenting Symposium. on Thursday, 17 September 2026.
- What not to tolerate (including from your own client)
- When and how to seek costs orders
- How to prepare for and succeed at an undefended hearing
- What you need to know about Contravention and Enforcement applications (whether you are applying or responding)
Jennifer Crawley, Director, Novera Solutions
