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

Your affidavit

1. The applicant

How should I write an affidavit in support of my application?

It is important to keep in mind the following basic rules when drafting your affidavit:

  • use a computer or typewriter. Neat handwriting is also acceptable.
  • Refer to the exact order you say has been breached and attach a copy of the parenting orders.
  • Only include relevant facts that relate to the alleged contravention.
  • Only include events directly observed by you and avoid repeating anything that other people have told you.
  • Avoid giving your opinions – stick to the facts.
  • Avoid alleging facts that could not be within your knowledge. For example, you cannot tell the Court what your child felt based on the “look” they gave you.
  • Report conversations in the first-person. For example, do not write: The mother said I couldn’t have the children this weekend. Instead write: I said to the mother: “Can I have the children this weekend?” The mother said to me: “Not today, we are going to the movies”.
  • Number each paragraph in your affidavit, and try to limit the information in each paragraph to no more than a few sentences.
What should I put in my affidavit?

You will need to include in your affidavit details about the following:

  • personal history, including dates of birth of the children, date of marriage or date of commencement of relationship, date of separation and the current living arrangements for the children;
  • when the parenting orders were made and where;
  • facts that show the respondent was aware the orders were made (For example, “The respondent was present in court on 1 September 2009 when the orders were made”.);
  • facts that show the respondent understood their obligations under the orders (For example, you might be able to give examples where the respondent has complied with the order previously.);
  • how the order was breached and the circumstances of the breach of the order;
  • a date and time for the alleged breach where possible;
  • details about the circumstances of the breach; and
  • any further evidence which supports that the alleged breach occurred (For example, parking station dockets or receipts from a shop which prove that you were at the changeover location at the time required by the orders; copies of letters, emails, text messages or faxes between you and the other parent relating to the visit that did not take place.)
Sample Affidavit

This sample affidavit is only an example, and may not fit your particular circumstances. You should seek legal advice if you are not sure how to complete your affidavit.

  1. I am the applicant.
  2. The respondent, [NAME], and I commenced our relationship in [DATE] and we were married on [DATE]. We separated on [DATE].
  3. We have two children, namely [NAME], born on [DATE], now aged [AGE] and [NAME] born on [DATE] now aged [AGE].
  4. On [DATE] the [NAME OF COURT] at [LOCATION OF COURT] made parenting orders. Annexed and marked with the letter ‘A’ is a copy of the parenting orders between the respondent and I which were made in the [NAME OF COURT] at [LOCATION OF COURT] on [DATE].
  5. These orders provide that the children live with the respondent and spend time with me [SET OUT WHEN YOu ARE TO SPEND TIME WITH THE CHILDREN].
  6. The orders state that we are to meet at [CHANGEOVER LOCATION] to exchange the children at [TIME].
  7. The respondent was present in court for the making of the parenting orders and was legally represented.
  8. The respondent complied with [HIS/HER] obligations pursuant to the orders during the period [DATE ORDERS WERE MADE] until [DATE OF FIRST BREACH].
  9. I attended [CHANGEOVER LOCATION] at [TIME] on [DATE] to collect our children for my period of spending time with them. I waited at [CHANGEOVER LOCATION] until [TIME].
  10. While I was waiting I purchased a [ITEM] at [NAME OF SHOP] at [TIME]. Annexed and marked with the letter ‘B’ is a copy of the receipt showing the time and date of purchase.
  11. During the time I was waiting, the respondent and the children did not attend the changeover location. At [TIME] I left [CHANGEOVER LOCATION] without the children. The respondent did not bring the children to [CHANGEOVER LOCATION] and I did not spend time with the children between [PERIOD WHEN VISIT WAS TO TAKE PLACE].
  12. At no time before [DATE] did the respondent contact me to advise that he/she would not attend the changeover location and he/she did not contact me during the period of time I was to spend with the children.
  13. On [DATE] I wrote to the respondent. Annexed and marked with the letter ‘C’ is a copy of this letter. The respondent did not respond to this letter.
  15. I have not seen the children since [DATE] and have had no response from the respondent to my letter dated [DATE]. I have not had any contact with the respondent since [DATE].

2. The respondent

If you wish you can draft an affidavit that includes reasons why you have disobeyed the orders. You should obtain legal advice in relation to the drafting of any affidavit in your defence of a contravention application. See the Useful contacts list at the end of this kit for details of organisations that may be able to assist you.

If the Court finds that the applicant has an arguable case that you have disobeyed the order, you would then ask that your affidavit be admitted into the evidence. However if you do not have an affidavit, the Court will hear your evidence orally.

Do not try to give the Court affidavits from your children, for example an affidavit sworn by your child saying that they did not want to see the other parent. It is more appropriate to refer to statements your children made to you in your own affidavit.

Tip icon Important Tip

If you write your affidavit in response, you will have a copy of the applicant’s affidavit so you will know the allegations they are making. Resist the temptation to respond directly to each allegation- for example do not simply say: “I deny paragraph 6a.”

Try to write your affidavit so that it can be read on its own without anyone needing to refer to the applicant’s affidavit to understand it. It’s best to respond as part of the body of the affidavit in your own words for example: “I deny that I was affected by alcohol on 1 April 2009 when I picked up the children. I had just finished night shift and was tired.”