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

Choosing the best option for me

If your parenting orders are not working or the other parent has disobeyed the orders, there are a number of options to consider. Contravention proceedings may not be the best option for you.

Reaching a solution

Firstly it is important that you try to reach a solution with the other parent before you commence court proceedings. Options for informally attempting to resolve the matter could include writing a letter, or participating in mediation.

How do I write a formal letter?

[DATE]

Dear [NAME],

On [DATE] the [NAME OF COURT] made orders that [NAMES OF CHILDREN] spend time with me [SET OUT WHAT THE ORDER PROVIDES]

The orders also say I am to collect [NAMES OF CHILDREN] from you at [CHANGEOVER LOCATION] at [TIME].

You are aware of these orders as you were in court the day the orders were made. However, in case you have lost your copy I have enclosed a copy of the orders for your information.

I went to [CHANGEOVER LOCATION] on [DATE] just before [TIME]. You did not come, and I did not see [NAME OF CHILDREN] in accordance with the orders.

I am due to have [NAME OF CHILDREN] on [DATE] from [TIME]. I will again be at [CHANGEOVER LOCATION] at [TIME] on [DATE] to collect [NAME OF CHILDREN] for my visit with [HIM/HER/THEM].

If you do not bring the children I am putting you on notice that I will start contravention proceedings against you. At those proceedings I will rely on this letter in support of my case.

Yours faithfully

[YOUR NAME]

When would I consider other alternatives to contravention proceedings?

In some cases when your orders are not working, a contravention application may not be the best option for your particular circumstances. In some circumstances the Court may decide that you are not able to prove that a breach or contravention of the court orders has occurred.

If one or more of the situations below seems possible in your case, you should consider what alternatives might be available to you instead of filing a contravention application.

  • Your court orders are a bit confusing and could be interpreted in more than one way.
  • Your court orders do not clearly set out how they are supposed to work on a practical level. For example, if there is no specific location and/or time nominated for changeover to take place in your orders.
  • Your court orders are not specific enough. For example you have an order which says you can spend time with your child “as agreed” between you and the other party.
  • The other party could argue that they were not aware that the orders had been made. This could occur if they were not in court when the orders were made.
  • The other party could argue that they did not understand the orders.
  • The other party has a “reasonable excuse” for not complying with the court orders. See the What is a reasonable excuse? section for an explanation of reasonable excuse.

What are the alternatives to contravention proceedings?

You should consider one of the options below rather than a contravention hearing if you are not confident you can prove the parenting orders have been disobeyed or if one of these options are more likely to fix the problem. Before making any application to the Court, you should seek legal advice to make sure that you are choosing the right option for your particular circumstances.

1. Family dispute resolution

Family dispute resolution is useful if there is a problem with your court orders, or if your court orders need to be revised because of changed circumstances. For example where:

  • a party is unable to arrive at the changeover location at the time contained in the court orders due to a change in their circumstances (For example their work hours have changed, they no longer have access to a car or driver’s licence, or they have moved address since the court orders were made.);
  • your child is now involved in an activity that affects them being able to spend time with you in accordance with the court orders;
  • an Apprehended Violence Order has been made that affects how changeover takes place or who attends changeover (You should keep in mind that, in some circumstances, it may not be possible or appropriate to participate in family dispute resolution where an Apprehended Violence Order has been made.);
  • your ex-partner is not taking advantage of the opportunities the order gives them to spend time or communicate with their child (For example, they repeatedly postpone their days to have the children or they do not ring them when the court order says they should.); or
  • there has been a change in circumstances which affects the court orders or makes them unworkable or inappropriate.

Family dispute resolution takes place in an informal setting and allows you and the other party to control what orders are made in relation to your child without having to go through what can often be lengthy and expensive court proceedings.

Any agreements reached through family dispute resolution can be made binding by filing the agreement with the Court as “consent orders”. To obtain a consent orders kit, contact the Family Courts on 1300 352 000.

2. Making an application to vary the court orders

If you have already attended family dispute resolution in relation to the problems you are having with the court orders and you still have not been able to reach an agreement with the other party, you may wish to make an application to the Court to vary the court orders.

When making an application to vary or change the current court orders, you will need to be able to satisfy the Court that there has been a change in circumstances that makes the current arrangements inappropriate. Depending on your financial circumstances and the changes you want to make to your court orders, you may be eligible for legal aid. Depending on your financial circumstances there may also be a court filing fee when you commence your case.

3. Recovery proceedings

In some circumstances, the Court will make a recovery order if you have an order to spend time with your child. Examples of situations where the Court may consider taking this approach is where the other parent has moved so far away that you are unable to keep spending time with your child, or where a parent consistently fails to make a child available in accordance with the current court order. Recovery orders can stay in place for up to 12 months and can be used to recover a child on any number of occasions during this period.

It is important that you keep in mind that the Court will not automatically make a recovery order in relation to your child just because you ask them to do so. You will need to satisfy the Court that a recovery order is the best option for your situation. For more information about recovery orders, see the Legal Aid brochure “My ex-partner has taken our children without my permission… What can I do?” and obtain advice from the contact points at the end of this kit.

4. Enforcement proceedings

Enforcement proceedings are another type of court proceeding which are used to deal with orders which have been breached. Generally, enforcement proceedings are only used in situations where a person has failed to comply with a court order relating to financial matters.

The Court will not enforce any orders in relation to a child spending time with a parent if that parent does not want to spend time with the child.

One situation where the Court may consider enforcing a parenting order is where a parent has been ordered to sign documents in relation to the child such as a birth certificate or passport application. The Court may make an order that the parent sign within a set timeframe or a representative from the Court will sign the documents on behalf of that parent.