My ex-partner isn't following the court orders about our children, what can I do?

Contravention of parenting orders

What is a “contravention?”

Contravening a parenting order means disobeying the parenting order. For example if a person:

1. does not comply or makes no effort to comply with the terms of the parenting order; or

2. deliberately prevents or tries to prevent another person who is bound by the order from complying with the order; and

3. does not have a reasonable excuse for contravening the order; (See the What is a reasonable excuse? section)

then they may have breached or contravened a court order.

Most parenting orders have terms about where the children will live and who they will spend time with. Therefore a contravention of the orders might occur if a person refuses to deliver or return the child to a person with whom the child lives or spends time with. For example, if there are orders for a child to see their grandparents every second Sunday and the father refuses to let the child go, then he may be contravening the parenting order.

What happens if a parenting order has been breached?

If the Court finds that an order has been breached, depending upon the seriousness of the contravention, the Court has the power to make a variety of orders. For example, the Court could make an order for:

1. make up time to compensate for the time that the person missed;

2. a person to attend parenting education programs such as a post separation parenting program;

3. a person to enter into a bond with the Court to do certain things for a period of up to 2 years. This may involve attending appointments for counselling, or being of “good behaviour”. Good behaviour could include making sure that a person complies with the court orders in the future;

4. a fine to be imposed;

5. imprisonment for up to 12 months; and/or

6. the party who breached the orders to pay the other party’s legal costs.

In addition, the Court can decide to vary or change your original parenting order as part of the contravention proceedings. This can be done even if you did not apply for the Court to change the order. Often the first thing the Court will do when a breach has been proved is assess whether an order needs to be varied to prevent any further problems in the future.

The most common outcomes in contravention applications are orders for make up time and for the breaching party to attend a parenting course, especially the first time a breach of the court orders is found to have taken place.

Who is involved in contravention proceedings?

The person applying for a contravention order is called “the applicant”. Any person that has previously been a party to a parenting order is able to apply to the Court.

The “respondent” to a contravention application is the person alleged to have contravened or breached the parenting orders. This will usually be the other parent.

Should I be worried about court costs?

The Court is required to consider whether to make an order for the applicant to pay the respondent’s costs in the following circumstances:

  • The contravention application is dismissed because the alleged breach could not be proved.

  • A respondent successfully argues that there was “reasonable excuse” for contravening the order.

  • There have been contravention applications made by the applicant in the past which have failed.

The Court must consider making a costs order against the respondent if it finds that there has been a contravention of the orders.

Going to court what to expect

Both parties must be at court at the time and date written on the documents. Before you leave for court, make sure you have copies of all the documents you need.

What do I take to court?

The applicant:

  • A copy of your application;

  • Your original parenting order;

  • Any affidavits in support of your application;

  • A copy of the Affidavit of Service and/or Acknowledgment of Service;

  • Pen and paper to write down any directions or orders.

The respondent:

  • A copy of the application;

  • A copy of the applicant’s affidavits;

  • Any evidence demonstrating your “reasonable excuse”. This could include medical certificates, hospital records or any receipts;

  • Your affidavit (together with 2 spare copies);

  • Pen and paper to write down any directions or orders.

The Court will have lists of where the cases for that day are to be heard. Ask court staff if you are confused about where to go. Court officers will call matters into court. If you are representing yourself you should let the court officer in your courtroom know you are there as soon as you can. If you have concerns for your safety, let security know as you enter the building.

Whether you are the applicant or respondent you should:

  • be prepared to answer any questions asked by the Judicial Officer or Judge; and

  • have a summary of your case prepared to help you answer any questions – a chronology or timetable of events can be useful.

When your matter is called into court, remember:

  • the applicant will sit on the left hand side of the bar table; the respondent will sit on the right hand side;

  • be calm and polite; focus your attention on the facts and do not make insulting, or derogatory comments about the other parent; and

  • always stand when spoken to by the Judge. You normally address the Judge as “Your Honour” however you can check this with the court officer.

What happens on the first day?

You should be ready for your application to proceed on the first court date. However, the Court may not hear the application on this day. If this happens, the Court will make an order for an adjournment of the matter to another date. Either party may ask the Court that the matter be listed with priority on the next occasion. If the matter is to continue onto another day, the Court may give hearing dates, give directions about the process to be followed and give directions about what has to be done before the next court date.

If the matter is adjourned, the applicant may ask the Court that the respondent give an undertaking (a promise to the Court) to comply with the orders on the next scheduled occasion. It is up to the Court whether to do this.

The respondent may ask that the Court suspend the orders which the applicant alleges are being breached. If this happens, the applicant will need to address the Court as to why the orders being breached should stay in place.

If the respondent fails to attend, the applicant may ask the Court to issue a warrant for their arrest to appear on the next court date. The applicant must be able to demonstrate that the documents have been served by handing the Court their “Affidavit of Service” document. If the applicant is unable to demonstrate service of the documents on the respondent, the Court will make further directions relating to service.

LawAccess NSW free legal helpline 1300 888 529