Bellanger & Wemble (No 5)
[2025] FedCFamC2F 783
•1 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bellanger & Wemble (No 5) [2025] FedCFamC2F 783
File number(s): MLC 5456 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 1 May 2025 Catchwords: FAMILY LAW – Parenting – Discharge of section 102NA order – Where section 102NA made under discretionary limb of section 102NA tree – Where party unable to retain legal representation under section 102NA – Where parties consent to discharge of section 102NA order.
FAMILY LAW – Parenting – Contravention – Interpretation of Division 13A – Whether the Commonwealth Criminal Code applicable – Interpretation of “offence” – “Offence” found to be intentionally distinguished by Parliament from Division 13A contraventions in the Act – Interpretation of “aids and abets” – Literal interpretation – Adoption of common law interpretation.
Legislation: Commonwealth Criminal Code 1995 Chapter 2, sections 11.1, 11.2
Family Law Act 1975 (Cth) ss 7A, 65M, 65N, 65Y, 65YA, 65ZAA, 65ZB, 70NAA, 70NAC, 70NAD, 70NFG 102NA, 112AD, 112AP
Cases cited: Bellanger & Wemble (No 2) [2024] FedCFamC2F 150
Bellanger & Wemble (No 3) [2024] FedCFamC2F 1139
Bellanger & Wemble (No 4) [2024] FedCFamC2F 1606
Bellanger & Wemble [2023] FedCFamC2F 1246
Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 655
Middleton & Redmond [2021] FCCA 316
Radecki & Radecki [2024] FedCFamC2F 811
Schwarzkopff & Schwarzkopff (1992) FLC 92-303; (1992) 15 Fam LR 545
Division: Division 2 Family Law Number of paragraphs: 41 Date of hearing: 29 April – 1 May 2025 Place: Dandenong Solicitor for the Applicant: Mr Monoah, Sunshine Lawyers First Respondent: No appearance Second Respondent: In person Counsel for the Independent Children's Lawyer: Mr Combes Solicitor for the Independent Children's Lawyer: Lampe Family Lawyers ORDERS
MLC 5456 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BELLANGER
Applicant
AND: MR WEMBLE
First Respondent
MS PAIGE
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
29 APRIL 2025
THE COURT ORDERS THAT:
1.Order 5 of the orders of 7 November 2024, that is, the order prohibiting the Second Respondent from personally cross-examining the Applicant pursuant to the Section 102NA Cross Examination Scheme, be and is discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Judge O’Shannessy
These are the settled reasons of two judgments delivered ex tempore. These reasons were delivered orally during the course of a final hearing. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
Background
By way of background and context to these reasons, I refer to my previous decisions in Bellanger & Wemble [2023] FedCFamC2F 1246, Bellanger & Wemble (No 2) [2024] FedCFamC2F 150, Bellanger & Wemble (No 3) [2024] FedCFamC2F 1139 and Bellanger & Wemble (No 4) [2024] FedCFamC2F 1606.
DECISION TO DISCHARGE SECTION 102NA ORDER
On 7 November 2024, I made an order pursuant to section 102NA of the Family Law Act 1975 (Cth) (‘the Act’) as between the two parents, but I also made one as between the second respondent paternal grandmother, Ms Paige (‘the Grandmother’), and the other parties (except the Independent Children’s Lawyer (‘the ICL’)). I was asked to do so, and I did so in reliance upon section 102NA(1)(c)(iv), that is, the discretionary provision, even though there is not an injunction for personal protection or an intervention order in place between the applicant mother, Ms Bellanger (‘the Mother’) and the Grandmother. The orders provided as follows:
3.It is declared that pursuant to section 102NA(1)(a), (b) and (c)(iv) of the Family Law Act 1975 (Cth), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and the first respondent father, [MR WEMBLE] (‘the Father’) and the applicant mother, [MS BELLANGER] (‘the Mother’), are prohibited from personally cross-examining one another in these proceedings.
4.IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Father under the Commonwealth Family Violence and Cross Examination of Parties Scheme, and for the purpose of this order, the Father do all acts and things necessary to make an application to Victoria Legal Aid for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable his legal representation at final hearing.
5.It is declared that pursuant to section 102NA(1)(a), (b) and (c)(iv) of the Family Law Act 1975 (Cth), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and the Paternal Grandmother and the Mother are prohibited from personally cross-examining one another in these proceedings.
6.IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Paternal Grandmother under the Commonwealth Family Violence and Cross Examination of Parties Scheme, and for the purpose of this order, the Paternal Grandmother do all acts and things necessary to make an application to Victoria Legal Aid for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable her legal representation at final hearing.
My recollection is that I considered section 102NA(1)(c)(iv) on that day in the context of the Grandmother likely being unrepresented at final hearing (when she had previously been represented) and so, pursuant to sections 102NA(1)(a), (b) and (c)(iv), I determined that order should be made. Where such an order exists, or those conditions exist, the examining party must not cross-examine the witness party personally, and that is set out in section 102NA(2)(a).
Section 102NA provides as follows:
Section 102NA Mandatory protections for parties in certain cases
(1) If, in proceedings under this Act:
(a)a party (the examining party) intends to cross - examine another party (the witness party); and
(b)there is an allegation of family violence between the examining party and the witness party; and
(c) any of the following are satisfied:
(i)either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
(ii)a family violence order (other than an interim order) applies to both parties;
(iii)an injunction under section 68B or 114 for the personal protection of either party is directed against the other party;
(iv)the court makes an order that the requirements of subsection (2) are to apply to the cross - examination;
then the requirements of subsection (2) apply to the cross - examination.
(2) Both of the following requirements apply to the cross - examination:
(a)the examining party must not cross - examine the witness party personally;
(b)the cross - examination must be conducted by a legal practitioner acting on behalf of the examining party.
…
[emphasis added]
I accept, and it does not appear disputed, that the Grandmother and her family went to a lot of trouble to try and retain lawyers to be funded by the section 102NA Commonwealth Family Violence and Cross Examination of Parties Scheme (‘the Scheme’) after those orders were made. From the court record, it is apparent that the Grandmother must have made application to the Scheme, as she was ordered to do, and that the arm of Victoria Legal Aid that administers the Scheme appointed not one, but two different solicitors on different occasions to act for the Grandmother. The first lawyers so appointed filed a notice of address for service and later filed a notice of ceasing to act. The second lawyers, very recently, also filed a notice of address for service, which is the formal way a solicitor announces to the Court and the other parties that they are acting. Those solicitors also ceased to act, or filed a notice of ceasing to act, on 11 April 2025.
Those events are entirely consistent with the Grandmother’s account to me yesterday (that is 28 April 2024), that she has attempted over some months to obtain solicitors but, when push came to shove, each of those solicitors deserted her (which might be too strong a language) but they certainly declined to continue to act. It may be that they thought the complex factual matrix of the case and the circumstances that the Grandmother did not speak or read or write English meant that the case was too hard for them, or to put that in the modern jargon of bureaucracy, they “lacked the resources to undertake the representation”.
I refer to my decision in Middleton & Redmond [2021] FCCA 316 as to the operation of section 102NA:
32Section 102NA lives in Division 4 of Part XI of the Act with which was inserted by Act 159 of 2018, the Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 (Cth) (‘the Amending Act’) and effective from 10 March 2019. The Amending Act did not recite a purpose but it is largely self-evident from the terms of the legislation and the Explanatory Memorandum for the Amending Act. I have referred to the Explanatory Memorandum in accordance with section 15AB(1) and (2) of the Acts Interpretation Act 1901 (Cth). I have taken into account the whole of the Explanatory Memorandum but relevant parts include the following.
33 Paragraph 6 of the General Outline of the Explanatory Outline states:
6.It is important that any ban (on cross examination) balances the need to protect family violence victims from being re-traumatised during their court hearings, with the need for procedural fairness for parties.
34Paragraph 13 Explanatory Memorandum under the heading Statement of Compatibility with Human Rights, states as follows:
13.The purpose of the Bill is to protect victims of family violence from the trauma of being cross examined personally by perpetrators and promote their access to justice. Personal cross examination potentially exposes victims to re-traumatisation and can affect their ability to give clear evidence. It can also be problematic for victims to cross examine their alleged perpetrator personally. Therefore prohibiting personal cross examination in family law proceedings where there are allegations of family violence promotes victims right to a fair hearing.
35At paragraph 12 of the Explanatory Memorandum under that same heading it is stated:
12.What constitutes a fair hearing requires recognition of the interests of all parties in a civil proceeding. The procedures followed in a hearing should respect the principle of ‘equality of arms’, which requires that all parties to a proceeding must have a reasonable opportunity of presenting their case under conditions that do not disadvantage them as against other parties to the proceedings.
36I also note in the context of this being a property case the following from paragraph 21 of the Explanatory Memorandum states:
21.Being personally cross examined by an alleged perpetrator can affect a victim's ability to give clear evidence. Being required to personally cross examine their alleged perpetrator can also affect a victim's ability to test or challenge evidence that is adverse to the case.
37 Section 15AA of the Acts Interpretation Act 1901 (Cth) commands that:
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
38 Section 15AB(1) of that Act commands that:
(1)Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b)to determine the meaning of the provision when:
(i)the provision is ambiguous or obscure; or
(ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
39Section 15AB(2) provides for a list of material that is included as “material that may be considered”. That list at (e) refers to:
(e)any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted.
40 Section 15AB(3) is as follows:
(3)In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:
(a)the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and
(b)the need to avoid prolonging legal or other proceedings without compensating advantage.
First Limb: 102NA(1)(a)
41The parties told me they each wished to cross-examine the other party and so the first limb, section 102NA(1)(a) applied.
Second Limb: 102NA(1)(b)
42The words of section 102NA(1)(b) “there is an allegation of family violence…”, are not without competing potential interpretations. The word “is” ordinarily carries a sense of the present tense. In this case neither party made any allegation of family violence in the materials they relied upon before the court or which they found to be relevant to the remaining property issues. Hence do the words “there is an allegation” mean is there a live or current allegation of family violence? Or do those words mean “there is now or has been” an allegation of family violence? Or do those words mean an allegation once made thereafter “is”?
43The Shorter Oxford English Dictionary, Oxford University Press, 6th edition, defines the word “is”, as:
“That which exists, that which is; the fact or quality of existence”.
44In regard to section 102NA(1)(b) and the words “there is an allegation” I was assisted by the Explanatory Memorandum to the Amending Act, paragraph 14 under the heading ‘Notes on Clauses’ states:
14.It is intended for this to capture all allegations of family violence made at any stage of the proceedings.
45The provisions and the Explanatory Memorandum show that the provisions have multiple purposes including promoting procedural fairness between the alleged perpetrator and the alleged victim, promoting clear evidence, avoiding victims being re-traumatised by being cross-examined personally by the alleged perpetrators, avoiding victims being persuaded to settle their matter due to fear of being cross-examined personally by the alleged perpetrator. The victim may also fear themselves cross-examining the alleged perpetrator.
46A significant focus on the scheme as set out in the Explanatory Memorandum is the potential continued impact on the victim of the scourge of family violence whenever that may have occurred. The Explanatory Memorandum explains how that impact on the victim may affect the judicial process by limiting the ability of the victim to challenge evidence or to participate in the legal process. It follows that impact may also effect the ability of a victim to present evidence. This is a property case but it is obvious that these matters would also ultimately impact upon the best interests of children.
47I am assisted by the High Court of Australia in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 where the majority observed at [69]-[71], citations omitted:
[69]The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[70]A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions…”
[71]Furthermore, a court construing the statutory provision must give meaning to every word of the provision…”
48There is nothing in the provisions and no other reason to infer that the effect of family violence on the victim is only passing or is ameliorated merely by the passing of time. The purpose of the provisions is to deal with the effect upon the victim and the consequent impact upon procedural fairness and the ability to challenge or lead evidence. Hence taking the provisions as a whole and considering the Explanatory Memorandum and the purposes of the provisions and applying section 15AA of the Acts Interpretation Act 1901 (Cth), I find that the words “there is an allegation of family violence” means an allegation has been made, whenever made, and so exists and hence “is”. In doing so I am cognisant that this reading expands the scope of the legislation but this reading best achieves the purpose of the Amending Act. Such reading is also consistent with the literal meaning of “is”. It is unnecessary in these reasons to deal with the circumstances where an allegation has been withdrawn or proven to be false.
Circumstances not contemplated by section 102NA
Having considered the explanatory memorandum and the parliamentary debates about the section 102NA scheme, it is apparent that the circumstance that now befalls the Grandmother was not contemplated by either the Parliament or those advising the Parliament when section 102NA was introduced.
It is apparent from the explanatory memorandum and the parliamentary debates that it was presumed that when a section 102NA order was made that prevented a party cross-examining another party, there would always be a lawyer representing the party in a competent fashion. The circumstance such as today, when a party has been restrained from cross-examining another party but was unable to obtain representation as contemplated by Parliament, does not seem to have been grasped or considered. That is in the context where cross-examination is one of the major ways that adverse evidence against someone is tested. In this case, the situation is not as unfortunate as it seems at first blush because the section 102NA order was made pursuant to section 102NA(1)(c)(iv), which was not mandatory, but discretionary. Hence, in that circumstance, it appears to me that I have the power or discretion to discharge that order. Having asked for any objection or submissions from the parties in relation to discharging the section 102NA order, I am satisfied that it is appropriate in all the circumstances that I do so.
DIVISION 13A – EX TEMPORE REASONS FOR JUDGMENT
It is clear enough and the case has proceeded so far on the basis that the allegations against the respondent father, Mr Wemble (‘the Father’), and the second respondent grandmother, his mother, are brought pursuant to Division 13A of the Act, as it was in effect prior to 6 May 2024, and as continues to have effect for allegations of contravention that are alleged to have occurred before that date. It is unnecessary that I address whether there is any difference under what I will describe as the “new” Division 13A that came into effect on 6 May 2024, which applies to contraventions alleged to have occurred after that date. And that is so, notwithstanding that the concepts of “aided and abetted” or “aids and abets” is the language that is used in both the old Division 13A and the new Division 13A, albeit with a difference in expression as to past or continuing or present tense.
In the circumstances where the parties have indicated that they would prefer that I indicate my tentative or preliminary view of the matters in regard to Division 13A and the applicability of the Commonwealth Criminal Code 1995 (‘the Criminal Code’), I propose to set out my tentative or preliminary view before hearing further submissions from the parties.
I refer to section 7A of the Act in regard to the applicability of the Criminal Code, which provides as follows:
Section 7A Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
The applicable Division 13A is as I have read out to the parties. I refer to and repeat the provisions of section 70NAC inserted by Act No 46 of 2006, Sch 2, Pt 1[6]. And I will read that again:
Section 70NAC Meaning of contravened an order
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order—he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b) otherwise—he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.
…
Meaning of “offence” under the Act
The matter arises because Chapter 2 of the Criminal Code provides, at section 11.2, references to the concept of a person committing an offence by aiding and abetting another person in the commission of an offence. It is apparent that the Criminal Code adopts what has long been the common law position in regard to what is meant by “aiding and abetting” another in the commission of an offence. At first blush, it is easy to make the link that where a contravention of an order carries with it the potential for serious penalties, including imprisonment, that could be readily understood as being an offence, and an offence as referred to in section 7A referred to above.
Such is the drafting of the Family Law Act over many years that some care must be taken to ensure that the words of the Act are given the meaning that Parliament intended, whether or not that is the same as a literal meaning of the words of the Act and section 15AB(3) of the Acts Interpretation Act recited earlier. In determining the meaning of any particular section of the Act, I must take into account the whole of the Act, including the context of the Act and the context of the particular section, and contemplate the purpose of the Act and the section concerned.
The Full Court dealt with the meaning of a particular word, or words, in the Act in the decision of Radecki & Radecki [2024] FedCFamC2F 811:
64The starting point for statutory interpretation is s 15AA of the Acts Interpretation Act 1901 (Cth) (“the Interpretation Act”) which states:
15AA Interpretation best achieving Act’s purpose or object
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is it expressly stated in the Act) is to be preferred to each other interpretation.
65 As to the approach to be adopted in statutory interpretation, in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, (“Cooper Brookes”) Gibbs CJ observed at 304:
… There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction and not so rigid as to prevent a realistic solution in such a case: see per Lord Reid in Connaught Fur Trimmings Ltd v Cramas Properties Pty Ltd [1965] 1 WLR 892 at 899…
66 In Cooper Brookes, Mason and Wilson JJ said at 320–321:
… Generally speaking, mere inconvenience of result in itself is not a ground for departing from the natural and ordinary sense of the language read in its context. But there are cases in which inconvenience of result or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute.
…
In some cases in the past these rules of construction have been applied too rigidly. The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.
The rules, as D C Pearce says in his Statutory Interpretation p 14, are no more than rules of common sense, designed to achieve this object. They are not rules of law. If the judge applies the literal rule it is because it gives emphasis to the factor which in the particular case he thinks is decisive…
On the other hand, when the judge labels the operation of the statute as “absurd”, “extraordinary”, “capricious”, “irrational” or “obscure” he assigns a ground for concluding that the Legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.
67 In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 the High Court of Australia (per McHugh, Gummow, Kirby, and Hayne JJ) explained the modern approach to statutory interpretation:
69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
(Footnotes omitted)
68 In Kelly v R (2004) 218 CLR 216, McHugh J referred to purposive construction (in the context of admissibility of a statement made to police after video recording interview was complete). At [98] his Honour said:
… Legislative enactments should be construed so as to give effect to their purpose even if on occasions this may require a “strained construction” to be placed on the legislation. The literal meaning of the legislative text is the beginning, not the end, of the search for the intention of the legislature. As Learned Hand J famously pointed out:
“Of course it is true that the words used, even in the literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.”
(Footnotes omitted)
69 At [103] his Honour continued:
As I earlier pointed out, the function of a definition is not to enact substantive law. It is to provide aid in construing a statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better – I think the only proper – course is to read the words of the definition into the substantive enactment and then construe the substantive enactment – in its extended or confined sense – in its context and bearing in mind its purpose and the mischief that it was designed to overcome…
70 As observed by the Full Court of this Court (per Alstergren CJ, McClelland DCJ, Austin, Bennett and Cleary JJ) in Nevins & Urwin (2022) FLC 94-084 at [30]:
The High Court has more recently affirmed that approach in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362…saying (per Kiefel CJ, Nettle and Gordon JJ):
14. The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. …
71 In order to assist interpretation of the statute, the Court may have regard to extrinsic evidence (s 15AB of the Interpretation Act) which encompasses any Explanatory Memorandum or parliamentary speech (s 15AB(2)(e) of the Interpretation Act).
…
77Relying on permissible extrinsic evidence, or “legitimate aids to construction”, in this case, the Explanatory Memorandum, including cited authorities and the wording of the Second Reading Speech, the context and purpose of the new statute was to codify the rule in Rice and Asplund and existing case law. It was not to ameliorate or modify the rule, by removing the requirement to make a factual finding about a significant change in circumstances in the application of the first stage. In that context, it is a misconception to apply the text of s 65DAAA so literally to only require a court to embark upon a consideration of whether or not there has been a change of circumstances, but without imposing an obligation to make a positive finding about that pivotal issue.
78 The decisive factor in rejecting the literal interpretation of “consider” is because to do so results in an operation of s 65DAAA which, adopting the terminology of relevant authorities, is absurd, irrational, and capricious, contrary to Parliamentary intention and may result in unintended undesirable consequences, as observed above. In other words, s 65DAAA would not rectify the mischief, being unfettered applications to revisit parenting orders, to which it is directed.
…
In the context of looking at the Act as a whole and its purpose, it is important to look at the of the commencement of the provisions under Division 13A. Section 70NAA(1) provides:
Section 70NAA Simplified outline of Division
(1) This Division deals with the powers that a court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children.
Section 70NAD provides as follows:
Section 70NAD Requirements taken to be included in certain orders
For the purposes of this Division:[1]
(a) a parenting order that deals with whom a child is to live with is taken to include a requirement that people act in accordance with section 65M in relation to the order
…
[1] That is, Division 13A.
Section 70NAD(b) has the same provisions of incorporation of section 65N into the division. Sections 65M and N are included in Part VII Division 6 of the Act. That is, not in Division 13A.
Also, in Division 6 of Part VII of the Act is subdivision D which deals with what is to occur after the arrest of a person described as an “offender” and specifically refers to a person arrested in relation to contravention proceedings under Division 13A. Hence, at first blush, the reference to “offender” in Division 6 of subdivision D, together with a reference to Division 13A would support, albeit faintly, the concept that a contravention under Division 13A is an offence as contemplated by section 7A.
But Part VII, Division 6 goes on to set out subdivision E. Subdivision E refers to the heading Obligations under parenting orders relating to taking or sending children from Australia. Section 65Y states:
Section 65YObligations if certain parenting orders have been made: taking or sending a child outside Australia
(1) A person commits an offence if:
(a) a parenting order to which this Subdivision applies is in force in relation to a child; and
(b) the person takes or sends the child from Australia to a place outside Australia; and
(c) the child is not taken or sent from Australia to a place outside Australia:
(i) with the consent in writing (authenticated as prescribed) of each person in whose favour the parenting order was made; or
(ii) in accordance with an order of a court made, under this Part or under a law of a State or Territory, at the time of, or after, the making of the parenting order; and
(d) the person:
(i) is or was a party to the proceedings in which the parenting order was made; or
(ii) is acting on behalf of, or at the request of, a person who is or was a party to the proceedings in which the parenting order was made.
Note: The ancillary offence provisions of the Criminal Code, including section 11.1 (attempts), apply in relation to the offence created by this section.
Penalty: Imprisonment for 3 years.
…
Similarly, section 65YA makes a statement in the same form that “a person commits an offence if”, and goes on to state, “a person retains a child outside of Australia, otherwise than in accordance with consent or order of a kind”. And again, the penalty is imprisonment for three years.
Similarly, section 65ZAA refers to the term “a person commits an offence if” and again refers to a person “retaining the child outside of Australia, otherwise than in accordance with consent or order”. And similarly, the note to that section states that the Criminal Code section 11.1 applies in relation to that section. Also, section 65ZB, dealing with obligations of owners and operators of aircraft or vessels commit an offence in certain circumstances if a person permits a child to leave Australia.
Hence, throughout Division 6, subdivision E, the term “offence” is used in regard to the various matters described therein. It is clear enough that section 7A refers to and incorporates the “offences” described in part VII, Division 6, subdivision E, being those offences of taking or sending a child out of Australia or retaining a child out of Australia.
Division 13A, on the other hand, provides that where a court is satisfied beyond reasonable doubt of a contravention contrary to Division 13A, a sentence of imprisonment may be imposed on a person, and the court may also make such orders that are necessary to ensure compliance with the order that was contravened. Section 70NFG, being part of Division 13A, states that a sentence of imprisonment may be imposed on a person:
(a) for a specified period of 12 months or less; or
(b) for a period ending when the person:
(i) complies with the order concerned; or
(ii)has been imprisoned under the sentence for 12 months or such lesser period as is specified by the court;
whichever happens first.
…
and, subject to other qualifications that are unnecessary to recite at this point, such a period of imprisonment would be available in regard to each contravention proven beyond reasonable doubt.
Hence, it is apparent that Parliament has taken some care to not refer to a contravention of an order under Division 13A as an offence, when Parliament has taken some care to describe other events in Division 6, subdivision E as offences. Similarly, in Part XIIIB, under section 112AP, the legislation deals with what is contempt of court, and the Court is empowered to commit a person to prison without limitation of the period of imprisonment specified in Part XIIIB, but, again, it is clear enough that Parliament has taken care to not refer to contempt of court as an offence.
Although not directly on point, in the Full Court case of Schwarzkopff& Schwarzkopff (1992) FLC 92-303; (1992) 15 Fam LR 545, the Court dealt with an appeal where a person had had been dealt with under section 112AD of the Act, and that was in Division 13A at that time. In that case, the issue arose in regard to remissions of a sentence under state law and whether or not the contravention dealt with under section 112AD was a “federal sentence”. At that time, that had consequences for the length of the period of imprisonment to be actually served by Mr Schwarzkopff, and the Full Court, that is, the Appeal Court of the Family Court, as it then was, in a unanimous decision of Barblett DCJ, Fogarty and Moore JJ, found that notwithstanding the sentence of imprisonment imposed upon the man that appealed in that case, at 79,289:
[…] section 112AP […] restates the power of a Court under the Family Law Act to deal with a contempt of Court.
We agree with the submission of counsel for the Attorney-General that a contravention of these provisions of the Family Law Act does not in itself constitute a contravention of the law of the Commonwealth and that Part XIIIA does not employ the language of the criminal law and should be seen as a self-contained code within the Family Law Act under which the Court may impose “sanctions” where there has been a breach of orders under that Act.
They go on to say:
[…] It appears to us that the sections in Part XIIIA are careful to avoid the language of the criminal law.
And then go on to say:
[All those matters] militate against the conclusion that this is part of the criminal law of the Commonwealth.
Accordingly, we conclude the Trial Judge was correct in not having regard to the sentencing principles in the Crimes Act. […]
Hence, my tentative and preliminary view, subject to submissions from the parties, is that section 7A does not apply to Division 13A. Hence, the provisions of chapter 2 of what is now known as the Commonwealth Criminal Code does not apply to the alleged contraventions for which the Father and the Grandmother are currently before the Court.
Standard of proof
It is universal, or almost universal, in Australia that any offence, whether at Commonwealth law, State law, Local Government law or common law needs to be proven beyond reasonable doubt. An essential difference between Division 13A and the general run of the criminal law in the Commonwealth of Australia and the States of Australia is that a contravention need only be proved on the balance of probabilities. That is a lower standard of proof than the usual standard of proof in criminal matters of beyond reasonable doubt.
The applicable Division 13A provides the Court with different powers upon a proven contravention, depending whether the contravention is proven beyond reasonable doubt, or on the balance of probabilities. And that drafting and concept within Division 13A is another matter that, on the construction of the Act as a whole, contends to the interpretation that section 7A does not apply to Division 13A.
Interpretation of “aid and abet”
I now turn to what the words “aid and abet” mean in regard to the allegations against the Father and the Grandmother.[2] The Shorter Oxford English Dictionary, Sixth Edition, refers to “aid” as meaning, “help, give support to, further the progress of”. And gives the definition of “abet” as “urge on, to do something, incite or encourage in a crime or offence”, as in, incite or encourage to commit an offence. And also, meaning “to support or uphold” and also “to encourage or countenance”. Countenance could also mean to approve, or to bless, or to agree with. And the Dictionary goes on to say, “in law, by active assistance”. I am satisfied that that ordinary or everyday sense is what was intended by Parliament by the words “aid and abet”.
[2] As section 7A does not apply to Division 13A, I cannot simply apply the definition of aid and abet as contained in the Commonwealth Criminal Code.
The LexisNexis Concise Australian Legal Dictionary 4th Edition defines “aid and abet” as follows:
(1) To assist and to encourage.
(2) To assist in the commission of a crime without actually participating in the offence itself. An accused who aids and abets must be shown to have been in some way linked in purpose with the person who actually committed the principal offence, and the words or conduct of the accused must have encouraged or knowingly rendered more likely the commission of the crime by the principal.
It is also defined as “to encourage another to commit a contravention resulting in ancillary liability for a contravention of legislation.”
It is also appropriate that I refer to what “aiding and abetting” means at common law. The headnote to the High Court of Australia case of Giorgianni v the Queen [1985] 156 CLR 473, states, as a decision of the High Court (though with three different judgments):
No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he or she intentionally aided, abetted, counselled or procured the acts of the principal offender. Wilful blindness[3] is treated as equivalent to knowledge, but neither negligence nor recklessness is sufficient.
[3] That is to say the deliberate shutting of one’s eyes to what is going on.
I am satisfied that that general principle of what “aids and abets” means at common law was intended by Parliament to be adopted, and included, under what “aids and abets” means in Division 13A.
Whether I am right about Parliament intending to include the common law concept in Division 13A, I am satisfied that the construction of Division 13A and its purpose means, by logical inference, that it is necessary for an aiding and abetting contravention to be established, that the person against whom the allegation is made (in this case, the Grandmother) knows all the essential facts and to have intentionally aided or abetted the principal offender (in this case, the Father). And that wilful blindness – that is to say the deliberate shutting of one’s eyes to what is going on – is equivalent to knowledge.
I am assisted also as to the meaning of “aiding and abetting” in regard to the decision of Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 655, who are not disciples in the Gospel, but rather participants in that decision. In that case a determination was made that Elspeth had contravened an order of the Court made in December of 2006, in that the children did not spend time with their father on or after 14 January 2007 in accordance with the orders. The appeals were made against orders out of a finding that Elspeth, the mother of two children, had failed to comply without reasonable excuse with an order that the children spend time with their father, and that their brother, Mark, and brother-in-law, John, had aided and abetted the mother in her contravention of those orders.
The Full Court in that case adopted the father’s counsel’s submission as to the law, and found that the evidence disclosed that Mark:
·was aware of the court order;
·acted without reasonable excuse in compliance with the obligation imposed by the order;
·knew that the principal offender was obliged by the order; and
·acted so as to encourage and/or assist the principal in the non-compliance of the order.
The Full Court therefore held that, though not a party to the order, section 70NAC (the same section applying in this case) meant that Mark was bound, along with any other person, not to intentionally prevent compliance with the order and not to aid or abet a contravention of the order by the person bound by it.
In that case, the court did not refer to the Commonwealth Criminal Code. But at paragraph 89, stated:
The general principle of the criminal law is that a person is liable as an accessory if the principal offence was committed, and the person, knowing the essential circumstances of that offence, intentionally assisted or encouraged the commission of that offence.
I also note that, at paragraph 90, the Full Court used the phrase of Mark being alleged to have “assisted or encouraged” his mother in committing her offence.
However, I read that case as using the word “offence” as shorthand for the circumstances of contravention of an order as defined in section 70NAC. And so, to the extent that I referred to the legal definition of aiding and abetting from the LexisNexis Concise Legal Dictionary, I read in that passage the use of the word “offence” and the use of the word “crime” as being equally applicable to the circumstances where the matter at hand is a contravention of a court order as opposed to a crime of offence under the Commonwealth Criminal Code or at common law.
I also take into account and consider that the underlying behaviour or acts involved in a contravention pursuant to Division 13A, and both acts and intention may be the same as what would qualify for an offence under section 65Y, or 65YA, or the other matters contained in Division 6, subdivision E. But, in this case, the application against the Grandmother and the Father is brought under Division 13A.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 11 June 2025
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