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

Getting started what to consider first

1. What will contravention orders achieve?

A contravention application is an application where you ask the Court to remedy or fix a breach of a court order. A breach occurs when somebody disobeys a court order.

If you are thinking about making a contravention application, you should keep in mind that the Court’s main focus will be determining whether or not there has been a breach of the court orders. If there has been a breach, the Court may first try to fix this problem by varying the orders so that there is less likelihood that a breach will occur in the future.

The Court may also make some orders giving you “make up” time with your children so that you are able to make up the time that you have missed with them when the breach occurred. In some circumstances, the Court may also make an order that the parent who breached the order has to participate in a parenting course so that they can learn more about the impact their behaviour can have on the children.

The primary aim of the Court when it hears a contravention application is to get things back on track. It is not necessarily to punish the other party or to impose a penalty. Whilst the Court will be concerned about the actions - or lack of action - of the other party, the main focus will be on restoring your relationship with your children and making sure that you can continue to spend time with them in accordance with the court orders. This should also be your main focus when making your contravention application to the Court.

2. Do you have your parenting orders?

Parenting orders deal with who is responsible for making decisions about the children, where the children will live and when they will spend time with each parent. If you are considering making a contravention application, you will need a copy of your parenting orders. If you do not have a copy of your parenting orders, you can:

  • obtain a copy from the Registry of the Court that made your orders; or
  • call 1300 352 000 if your orders were made in the Family Courts and ask for a copy to be sent to you.

For details of your Local Court go to the LawLink website or contact LawAccess NSW 1300 888 529.

It will help if you can provide the file number of your case and the date your orders were made.

I have a parenting plan. What can I do?

A parenting plan is a written agreement about children which is signed and dated by the parents. If you have made a parenting plan following your court orders, this may replace your court orders. You cannot ask the Court to enforce a parenting plan or to find that a breach of a parenting plan has occurred. If your parenting plan is not being followed, you should obtain legal advice about what steps you can take. See the Useful contacts section at the back of this kit for details of where you can obtain advice.

Are your parenting orders clear?

Parenting orders need to clearly state who will do what, where, when and how. If this is not clear you may not be able to bring a contravention application because you may not be able to show how your court orders were breached. For example, if an order requires a child to spend every second weekend with a parent but does not say when this is to start, it may be difficult to prove that the other parent did not deliver your child on the correct date.

3. Do I need to attend family dispute resolution before I go to court?

Family dispute resolution (also known as mediation) is required before you commence any court proceedings about children, including contravention proceedings, unless you can show that an exemption applies to your case. If your orders are over 12 months old, you are normally required to attend mediation before you can make a contravention application.

A court will not usually allow an application to be filed unless a certificate from a family dispute resolution practitioner is filed at the same time.

Legal Aid NSW may be able to assist you by organising a mediation. See the Useful contacts section at the end of this kit for Legal Aid NSW and LawAccess NSW. A list of family dispute resolution practitioners can be found at the Family Relationships Online website or by phoning 1800 050 321.

What are the exemptions from attending mediation or providing a certificate?

In some circumstances, you do not need to attend mediation before commencing court proceedings. If you are claiming you should be exempt from attending mediation, you will need to provide information to show how one of the exceptions applies to you when you file your application with the Court.

The exceptions include:

  • where a person has contravened and shown a serious disregard for a court order made in the last 12 months;
  • if the Court is satisfied that there are reasonable grounds to believe that:
    • there has been family violence or child abuse by a party,
    • there is a risk of violence by a party, or
    • there is a risk of child abuse if there were to be a delay;
  • where a party is unable to participate effectively in mediation (for example, they are too far from a family dispute resolution provider or they suffer from a physical or mental incapacity of some kind).