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

Information for the respondent

If you are served with a contravention application, you should obtain legal advice as to the options that are available in your particular situation. See the Useful contacts section at the end of this kit for a list of organisations that may be able to assist you.

I have received a contravention application - What can I do?

It may be possible to negotiate a settlement with the applicant. You may decide to try to settle the matter by writing a letter or participating in family dispute resolution.

Negotiation may not be advisable if you have concerns about:

  • family violence;
  • a child being at risk of harm; or
  • any criminal investigation involving the child, or someone else involved in the matter.

You should obtain legal advice if any of these circumstances apply to your case.

Do I need to attend court?

Yes. If you do not, the Court has the power to make orders in your absence. The Court also has the power to issue a warrant for your arrest.

What is a reasonable excuse?

Reasonable excuses for the contravention of a parenting order include:

  • that you did not understand what you had to do under the order;
  • that you believed on reasonable grounds that your actions in disobeying the parenting order were necessary to protect the health or safety of your child or another person; AND
  • that the length of time that you disobeyed the order was not longer than reasonably necessary.

A court does not accept as reasonable excuses the following circumstances:

  • you do not agree with the order;
  • your reasons are personal (For example, you do not like the applicant’s new partner.); or
  • your child does not want to spend time with, or return to the other parent. It is your responsibility to actively encourage your child to spend time with the other parent and you should do everything possible to ensure this happens. This is a technical area and you should seek advice if these circumstances apply.
Examples of “reasonable excuse”:
  1. The parents have orders that their daughter lives with them for equal amounts of time. If she is ill for several weeks and her mother obtains medical certificates, the Court may still find there has been a contravention especially if the child is looked after by other people such as her grandparents while her mother is at work.
  2. Where a car has broken down or there has been a car accident delaying a child being handed over to the other parent, the Court will accept this as a one off reasonable excuse as long as it is not used for delaying children spending time with the other parent for longer than necessary.

Do I need an affidavit?

You do not need to file an affidavit prior to the hearing. You only need to file an affidavit or give evidence if the Court finds that the applicant has an arguable case. See The contravention hearing section about the hearing.

If you admit the breach, but say you have a reasonable excuse it is important to file an affidavit explaining the circumstances. You should obtain legal advice about what to write or say. See the Useful contacts section at the end of this kit. See the section Your affidavit for some tips about your affidavit.

You may want to provide affidavits from witnesses. If so, the witnesses will need to be present in court for cross-examination if the other party wants to ask them questions.