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

Your contravention application

If you think that a contravention application is the best option for you, before you start, ask yourself the following questions:

  • Have I obtained a copy of my court orders? See Do you have your parenting orders?
  • Do I need to attend family dispute resolution or does my case come within one of the exemptions? See Do I need to attend family dispute resolution?.
  • Are my court orders clear? - check dates and times are clear and get legal advice if you are unsure. Are my parenting orders clear?
  • Have my court orders been replaced with a parenting plan? I have a parenting plan.
  • Is the respondent aware that the parenting orders are in place? Were they or their lawyer present in court when the orders were made? Do they have a copy of the orders?
  • Could the respondent argue that they do not understand the orders or their obligations under the orders? Have they been following the orders until now?
  • Is it likely that the respondent will have a “reasonable excuse”? See What is a reasonable excuse?
  • Have I exhausted all other options? For example, negotiation and family dispute resolution?
  • Should I file an application to vary the court orders instead?
  • Have I complied with the orders up until the time of my matter being dealt with by the Court? This may include attending a changeover location so that you are able to advise the Court that you have continued to comply with the orders.
  • Have I done anything which might have contributed to the breach of the orders for example not arriving on time at changeover, or regularly changing the arrangements?

What do I need?

You will need:

  • An “Application – Contravention” form;
  • An “Affidavit” form.

Depending on whether or not you attended family dispute resolution you may also need:

  • An “Affidavit - Non-Filing of Dispute Resolution Certificate”; OR
  • A section 60I Certificate from a family dispute resolution provider.

Forms can be obtained from a Registry of the Family Courts by calling the Family Law Courts Hotline on 1300 352 000, or on-line at their website. You should obtain legal advice about how to complete your application and affidavit. See the Useful contacts section at the end of this kit for Legal Aid NSW offices or Community Legal Centres.

Tip icon Important tip

You may have many allegations of breaches you want the Court to determine in  your application. However, it is up to the Court whether it will hear all of the allegations. The Court may ask you to select the two or three best allegations contained in your application for your  hearing.

Step 1: Complete the “Application – Contravention” form

You must complete all sections of the application form. You must state exactly what the respondent did or did not do which you say amounts to the contravention.

You will also need to attach a copy of the parenting orders to your application. The application for contravention form gives examples of how to allege that a contravention has taken place. You should pay close attention to how these examples are worded when preparing your own application.

Don’t set out the evidence you say proves the contravention in your application form. This information will need to go into your affidavit.

Step 2: Complete your affidavit in support of the application

The purpose of your affidavit is to provide the Court with evidence in support of your application. An affidavit is a written statement by a party or a witness. It must be sworn on oath or affirmed to be true in front of a person with the correct authority, for example a lawyer or a Justice of the Peace. You may need to obtain an affidavit from a witness in support of your alleged contravention. You should not put letters or statements from your children into evidence under any circumstances.

Step 3: Filing your application

You should file your application at the nearest Family Courts Registry. You can telephone 1300 352 000 to find the nearest location for you or search the internet. There are currently no filing fees for contravention applications.

Before filing your application, you should make two (2) copies of the original Application – Contravention as well as any attachments and affidavits. The Court will keep the original documents for the court file and give you a sealed (stamped) copy of the two (2) copies you have filed. One of these is for your own records and the other will need to be served on the respondent.

You can file the documents personally or post them to the closest Family Courts Registry.

The Registry will:

  • stamp the documents with the Court’s seal;
  • give you a case number for your matter;
  • list your application on the next available date; and
  • arrange for the sealed documents to be sent back to you.

Step 4: Arranging for service of the documents on the respondent

Once your documents have been filed, you then need to make sure that the other party is given a copy of them. This is called serving the documents.

There is a formal process to follow when serving court documents and the Court does not do this for you. Contravention applications must be personally served. This means that somebody has to physically hand the documents to the respondent. Personal service can be arranged through a private process server, the Sheriff of the Local Court, or arranging for a person (other than you) aged over 18 years to hand the documents to the respondent.

To serve your documents, the Sheriff or process server will need:

  • the address of the other parent;
  • details of where they work; and
  • details of any family member or friend that they may live with.

A photo of the person to be served sometimes helps. You will have to pay for serving the documents through the Sheriff or a process server.

Alternatively, you can ask a friend or family member over the age of 18 years to serve the documents. If they do so, they will need to complete an Affidavit of Service and swear it in front of a Justice of the Peace. You will then need to file this document with the Court. You can obtain a “Do it yourself Service Kit” from the Court’s website or by calling 1300 352 000.

What if I am having trouble serving my application?

The Court considers it is very important that the other party is aware of any contravention proceedings. If you are having trouble serving the other party, a special application may be made to the Court for orders for substituted service or for a location order. If you are having trouble serving the respondent with your application, it is recommended that you obtain legal advice. See the Useful contacts section at the end of this kit.

Orders for substituted service can include orders allowing the documents to be served on another person who may know where the other parent or children are, such as a grandparent or sibling.

In a location order you can ask the Court to make orders that an individual person or government agency such as Centrelink or the Child Support Agency, provide information about the location of a child or parent directly to the Court.

If you cannot find your children, you may need a recovery order as well as a location order. A recovery order can include a direction for the police to return your children. You will need to obtain legal advice.

For more information about recovery orders see the Legal Aid NSW brochure “My ex-partner has taken our children without my permission… What can I do?”