Go to content

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

The contravention hearing

Most contravention hearings will run according to the steps below, however there may be some differences in how hearings are run. This information should be used as a guide only.

The Judge may first decide to look at whether a variation of the orders would be in the best interests of the child, and may ask the parties questions about the orders and what has been happening so the Judge can consider whether to change the orders. If they do this they may not formally hear the contravention application, or they may adjourn it to see how the changed orders are working and to see whether any parenting courses have assisted in communication between the parties.

The applicant might be asked to choose their three “best” contraventions to continue with, especially if there is a long list of alleged breaches.

Stage 1: The allegations: admission or denial

The Judge will ask the respondent to stand and they will read each of the alleged contraventions.

The Judge will ask the respondent to either admit or deny each of the alleged breaches. If the respondent admits the breaches, the Judge will ask the respondent whether they had a “reasonable excuse” for the breach. If the respondent says they have a reasonable excuse, the respondent will give their evidence. See Stage 4 onwards.

Stage 2: The applicant’s case

If the respondent denies the contravention, the applicant’s case is heard first. The applicant must prove that the respondent has “a case to answer”. They need to prove the existence of a parenting order and that the respondent knew about the parenting order. The applicant then needs to prove that a parenting order was disobeyed and a contravention occurred.

Objections

The Judge will ask the applicant what documents they will rely on, and ask the respondent if there is anything in the applicant’s affidavits they wish to object to. Parties can object to anything they consider is not admissible by the rules of evidence. You cannot object just because you disagree with what the other party is saying. Objections can be made to anything that is an opinion, “hearsay” (something that has not been directly heard or seen by the person giving that evidence to the Court), or any contravention which does not clearly state the exact date, time and place of the contravention.

Evidence in Chief

The applicant then gives their evidence in the witness box on oath, after they have either sworn or affirmed that they will tell the truth. If the applicant has a lawyer, the lawyer may ask the applicant questions about their affidavit. This is called the evidence in chief. If the applicant is self represented they will need to tell the Court that they rely on the affidavit they have filed. The Judge may ask questions. They will require a precise answer. The Judge may then ask the applicant if they have anything further they wish to say.

Tip icon Important Tip

Parties cannot take notes into the witness box without the Court’s permission (known as “leave”) and the applicant cannot raise any new matter that is not in their affidavit without the Court’s leave.

Cross-Examination

After the applicant gives their evidence, the respondent or their lawyer is then invited to ask the applicant questions. This is called cross-examination. The purpose of cross- examination is to test what the other party or a witness is saying, or confirm facts you might want to establish in your own case.

Questions the respondent may wish to ask in cross- examination could include:

  • whether the dates of the alleged contraventions are correct;
  • testing that the applicant has done everything required to comply with the terms of the order (For example, if an order required a person to be at a changeover location, the respondent might ask questions about the applicant’s attendance at that time.);
  • whether the applicant had entered into any further parenting plans following the making of parenting orders; and
  • whether the applicant had discussions with the respondent that led to an oral variation of the order.
Re-examination

After cross-examination, the applicant will be allowed to address any new evidence that might have come out. If the applicant has a lawyer, they will do this by asking questions of the applicant. If not, the applicant may wish to say something from the witness box.

For example: “In relation to the fact I was on holidays in June, I wish to state the dates were between X and Y, and I did not leave my home”.

Witnesses

Any witnesses for the applicant will then be called into court to give their evidence. The applicant can ask them questions (called evidence in chief). These witnesses can then be cross-examined by the respondent, and re-examined by the applicant.

Close of evidence

The applicant will then be asked if that is all of their evidence. After their evidence is closed, the applicant cannot put any new evidence before the Court or make any new allegations from the bar table.

Stage 3: Decision about whether the contraventions have been established

The Judge will then decide whether the applicant has produced enough evidence to make out a case that the contravention exists. The Judge will decide which contravention allegations have been proved and which will be dismissed. The Judge may decide to vary the orders whether or not the contravention has been proved.

Stage 4: The respondent’s case

If the Court decides that a contravention has been proved, the respondent then gives their evidence. The respondent will be looking to either:

  • disprove the breach - for example to say that they arrived with the child at the right time and place but the applicant was not there; or
  • prove that they had a reasonable excuse – see What is a reasonable excuse?

The respondent may hand an affidavit to the Court and the applicant at this time. This is called “tendering a document”. The applicant will be asked if there is anything in the affidavit that they object to.

The respondent will then be asked to go into the witness box and take an oath or an affirmation to tell the truth. If they have a lawyer, the lawyer may ask them questions.

After the respondent has given their evidence, the applicant or their lawyer may cross-examine them on that evidence.

For example, the applicant may ask questions to:

  • prove that the respondent was aware of the parenting orders (This could be based on evidence that they attended court, were represented by a solicitor, or had been complying with the orders.);
  • prove the contravention occurred; or
  • test the reasonable excuse defence (For example if it is alleged the child was ill, questions might be asked in relation to the seriousness of the illness, treatments, doctors visits and whether make up time was offered.)

After the cross-examination the respondent’s lawyer can re-examine them about any new evidence that came out in the cross-examination, or if they have no lawyer the Judge may ask them if they wish to comment about any new evidence.

Any witnesses for the respondent will then be questioned about their affidavit, be cross-examind and re-examined.

Terms you will hear in court

Examination in chief

This is when you call a witness who has filed an affidavit in support of your case. You need to ask the witnesses to state their full name, address and occupation, and to tell the Court if there are any mistakes in their affidavit or any change in circumstances since the affidavit was written.

Cross-examination

After your examination in chief, the other party will have the opportunity to cross-examine your witness. This is the other party’s opportunity to challenge the evidence given by that witness and to put a different version of events to the witness for their comment.

Re-examination

After cross-examination, you have the opportunity to ask your witness further questions to clear up or expand on any of the answers they gave in cross- examination. You must make sure that you only ask questions about issues that came up during the other party’s cross-examination - if it did not come up during cross-examination, then you cannot raise it in re-examination.

Stage 5: Final submissions

At the end of presenting the evidence, the applicant and respondent then each give the Court a summary of their case. This is called “final submissions”. The applicant would tell the Court why it should be satisfied there has been a contravention, and why the respondent’s excuse is not reasonable. The respondent would tell the Court why it should be satisfied there is a reasonable excuse. You cannot raise any new evidence or make any new allegations during final submissions.

Stage 6: The Court’s decision

The case will then be determined by the Court. Even if there is a contravention proved, the Court does not have to make orders. The applicant should be ready to tell the Court what orders they want, that is exactly when any make up time could occur. The respondent should be ready to say why the orders requested might not be in the best interests of the children, for example if the make up time requested means they will be travelling between houses late at night.

Examples of the findings the Court may make are:

  • that the contravention has been alleged but not established, in other words the applicant was unsuccessful in arguing the contravention;
  • that a contravention has been established but the respondent has given a reasonable excuse for the contravention;
  • that a less serious contravention has been established; and
  • that a more serious contravention has been established. The Court will look at any previous contravention orders and whether the behaviour of the respondent has shown serious disregard of their obligations under the orders.

See Contravention orders for more detail about the orders which can be made if a contravention is proved. Any penalty will depend on the seriousness of the matter.

Stage 7: Costs

Once the contravention application has been determined, the Court may hear an application from either party in relation to costs.

Tip icon Important Tip:
How strong does my evidence have to be?

If the applicant is asking for make up time or for the respondent to attend a parenting course, they need to prove that the contravention probably, rather than definitely occurred. The Court calls this proving the contravention “on the balance of probabilities”.

If the applicant is asking the Court to consider one of the more serious penalties such as a fine or prison, they need to prove that the contravention definitely occurred. This means the applicant will need to prove the contravention occurred “beyond reasonable doubt”. To do this the applicant will need to prove that the events they allege, occurred without any doubts and there is no other reason or explanation.

The respondent needs to prove any case they put (for example their evidence about their excuse) on the balance of probabilities-that is that their version of events probably occurred.