Garner & Jansen
[2025] FedCFamC1F 330
•16 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Garner & Jansen [2025] FedCFamC1F 330
File number: SYC 7784 of 2023 Judgment of: MCCLELLAND DCJ Date of judgment: 16 May 2025 Catchwords: FAMILY LAW – CONTRAVENTION – Where the father alleges the mother contravened interim parenting orders by not facilitating the child spending time with him in accordance with orders, by not ensuring the child attended a development class and by unilaterally ceasing the child’s daycare enrolment – Consideration of s 70NAC of the Family Law Act 1975 (Cth) – Where the mother’s failure to facilitate a swift changeover hindered and prevented the child spending time with the father – Where the interim orders in respect to the child’s daycare were ambiguous – Where alleged contraventions of ambiguous orders are to be resolved in favour of the litigant facing the contravention order – Further listing and trial directions to determine if the mother had any reasonable excuse for contravening orders. Legislation: Family Law Act 1975 (Cth) s 70NAC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 11.67
Cases cited: Hale v Hale [2011] FMCAfam 1107
Iberian Trust Ltd v Founders Trust and Investment Co [1932] 2 KB 87
O’Brien & O’Brien (1993) FLC 92-396; [1992] FamCA 52
Stamp & Stamp [2014] FCCA 1269
Stevenson v Hughes (1993) FLC 92-363; [1993] FamCA 14
Division: Division 1 First Instance Number of paragraphs: 90 Date of hearing: 25 March 2025 Place: Sydney Counsel for the Applicant: Mr Bateman Solicitor for the Applicant: Barker Evans Counsel for the Respondent: Ms Clarke Solicitor for the Respondent: Brigid Justice ORDERS
SYC 7784 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GARNER
Applicant
AND: MS JANSEN
Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
16 MAY 2025
THE COURT ORDERS THAT:
Contraventions
1.In relation to the Application–Contravention filed by Mr Garner (“the father”) on 24 January 2025, the Court finds that Ms Jansen (“the mother”):
(a)Contravened Order 4(b)(i) made 8 May 2024 on 13 August 2024;
(b)Contravened Order 4(a)(i) made 8 May 2024 on 3 September 2024; and
(c)Contravened Order 4(b)(ii) made 8 May 2024 on 14 September 2024.
Filing directions and future listing
2.The Application–Contravention filed by the father on 24 January 2025 is listed for further hearing at 10.00 am on 11 August 2025 to hear any argument in respect to:
(a)the mother’s defence of reasonable excuse to her contraventions; and
(b)any variation sought to the orders of 8 May 2024.
3.By no later than 4.00 pm on 30 May 2025, the mother has liberty to file and serve an affidavit setting out any reasonable excuse she contends she has in relation to her contraventions.
4.By no later than 4.00 pm on 13 June 2025, the father has liberty to file and serve an affidavit in reply to the mother’s affidavit referred to in Order 3 herein.
5.The parties have liberty to apply directly to my chambers in the event that they jointly and consensually wish to vary this timetable with a view to attending family dispute resolution.
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 the pseudonym Garner & Jansen has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
This matter concerns an Application–Contravention (“Contravention Application”) filed by Mr Garner on 24 January 2025 (“the father”) alleging that Ms Jansen (“the mother”) has breached orders made by this Court on 9 January 2024 and 8 May 2024, in respect to the parties’ child, X (“the child”), born in 2020. Those two sets of orders included interim parenting arrangements made by consent in respect to the child. In summary, the interim parenting arrangements are that the child lives with the mother, the child spends time with the father on a graduated scheme progressing to four nights per fortnight, that the child was to attend at least one B Program on each day she attends daycare and that in 2025 the child attend C Preschool.
The B Program, referenced in the interim orders dated 8 May 2024, refers to a 90-minute session X’s daycare, D Daycare, runs either in the morning or afternoon. Such sessions are designed to support the educational and social development of children attending daycare. X’s participation in the B Program aimed to address concerns about the child’s English-speaking proficiency and social progression, as highlighted in the Family Report of Ms E.
ALLEGED CONTRAVENTIONS
In his Contravention Application, the father initially particularised 53 counts of alleged breaches to the interim parenting orders. By orders made on 12 March 2025, however, the father was directed to limit his contraventions to five counts.
The father commits to the following contraventions:
(1)Count 2: On 13 August 2024 at 4.00 pm, the mother “without reasonable excuse, did not facilitate changeover of the child, [X] to the [father]” in accordance with Order 4(b)(i) of the orders dated 8 May 2024.
(2)Count 5: On 3 September 2024 at 3.15 pm, the mother “without reasonable excuse, did not facilitate changeover of the child, [X] to the [father]” in accordance with Order 4(a)(i) of the orders dated 8 May 2024.
(3)Count 6: On 14 September 2024 at 3.00 pm, the mother “without reasonable excuse, did not facilitate changeover of the child, [X] to the [father]” in accordance with Order 4(b)(ii) of the orders dated 8 May 2024.
(4)Count 12: On 22 May 2024 at 1.55 pm, the mother “without reasonable excuse, did not facilitate the child, [X’s] attendance for at least one [B Program] … on each day the child is to attend daycare” in accordance with Order 6 of the orders dated 8 May 2024.
(5)Count 53: On 9 November 2024, the mother “without reasonable excuse, unilaterally ceased the child’s enrolment at [D Daycare] prior to her commencement at [C Preschool]” in accordance with Order 17 of the orders dated 9 January 2024.
In respect to Counts 2, 5 and 6, the mother contends that no contravention has occurred because she has done all that she reasonably could to facilitate changeover of the child to the father’s care. The mother contends that Counts 12 and 53 fail to establish any contravention.
At the Contravention Hearing on 25 March 2025, I indicated to the parties that pending my determination on whether any contraventions were established, the parties were at liberty to submit further evidence in respect to reasonable excuse, which would be heard at a subsequent listing.
SUPPORTING DOCUMENTS
The father relied upon the following documents:
(a)Contravention Application filed 24 January 2025;
(b)Case Outline Document filed 19 March 2025;
(c)Affidavit of the father filed 24 January 2025;
(d)Family Report of Ms E dated 25 March 2024; and
(e)Supplementary Letter of Ms E dated 22 April 2024.
As is her right in circumstances where she faces a potential civil penalty, the mother elected not to file an affidavit (r 11.67 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)). She did, however, rely on a tender bundle of documents that were admitted into evidence, subject to weight, having regard to the relevance of the documents and the hearsay nature of much of the evidentiary content (Exhibit 2).
BACKGROUND AND RELEVANT CONTENTIONS
The relevant consent orders dated 8 May 2024, that are the foundation of Counts 2, 5–6 and 12, provide that:
4. From 27 June 2024 to 23 September 2024, the child spends time with the Father as agreed between the Mother and Father in writing and in the absence of agreement in a two-week rotation as follows:
a. In Week 1:
(i)From 3.00pm on Tuesday until before daycare the following Wednesday morning;
b. In Week 2:
(i)From 3.00pm on Tuesday until before daycare the following Wednesday morning; and
(ii) From 3.00pm on Saturday until 3.00pm on Sunday.
…
6.Unless otherwise stipulated in these Orders, [X] is to attend at least one [B Program] (9.00am to 10.30am and/or 1.30pm to 3.00pm) on each day she attends daycare unless agreed in writing by the parties or with a medical certificate.
The relevant consent order dated 9 January 2024, that Count 53 relates to, directs that:
17.The parties are to do all thing [sic] and sign all documents to facilitate [X’s] enrolment and attendance at [D Daycare] for three days per week (in whichever configuration offered by [D Daycare]) immediately upon a spot becoming available.
THE LAW
Section 70NAC(1) of the Family Law Act1975 (Cth) (“the Act”) sets out the meaning of contravening a child-related order as:
70NAC Meaning of contravene a child-related order
(1) A person contravenes a child-related order only if:
(a) the person is a person (other than a child) to whom the order applies and:
(i) the person intentionally fails to comply with the order; or
(ii) the person makes no reasonable attempt to comply with the order; or
(b)the person is not a person to whom the order applies, and the person is not a child, but:
(i) the person intentionally prevents compliance with the order by a person to whom the order applies; or
(ii) the person aids or abets a contravention of the order by a person to whom the order applies.
[Note omitted]
Furthermore, s 70NAC(2) of the Act relevantly provides that a person contravenes a child-related order when a person hinders or prevents another person from spending time with the child in accordance with an order setting out who the child is to spend time with.
RELEVANT PRINCIPLES
In the matter of Stamp & Stamp [2014] FCCA 1269, Judge Riethmuller (as he was then known) observed at [21]: “it is accepted that the parent with whom the children ‘live with’ has a duty to ensure that the children not only attend, but do so in a positive manner”. Helpfully, his Honour set out observations made in a number of cases with respect to the concept of making a “reasonable attempt” to comply with orders. Those principles are summarised below:
(a)The primary carer must actively encourage the child to attend time with the other parent as ordered.
(b)The Court should consider whether, in reality, the primary carer has taken reasonable steps, rather than just considering what has occurred “on the face of things”: O’Brien & O’Brien (1993) FLC 92-396 at 80,043.
(c)A parent must do more than deliver the child to the point of changeover, invite the child to walk to the other parent and do nothing further to encourage the child to attend. If the child then refuses to attend, it will not be open to the primary carer to say they have “tried” and thereby discharged their obligations “by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep”: Stevenson v Hughes (1993) FLC 92-363 at 79,813 (“Stevenson v Hughes”).
(d)It is insufficient for the primary carer to say it is up to the child whether they attend for time, or to imply that this is the case.
(e)The primary carer should make the child understand that they require the child to spend time with the other parent.
(f)Parents are expected to bring to bear all the authority that they have over a child to ensure compliance with orders, just as they would to ensure the child attends school.
(g)The tone adopted by the primary carer may be relevant. A child can be invited to spend time with their other parent in a way that conveys a suggestion that the primary carer really does not mind if the child says they do not want to attend. Such an invitation will not be sufficient.
(h)Token efforts at compliance, by uttering a few phrases is insufficient, especially where those phrases do not positively encourage the child to go with the other parent.
(i)The primary parent is “not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance”: Stevenson v Hughes at 79,816.
I respectfully apply and adopt those principles in my consideration of the relevant facts in the present case.
CONSIDERATION
As earlier noted, the mother has exercised her right to refrain from filing evidentiary material. However, this has left the husband’s evidence unchallenged except by the process of cross-examination and by the mother’s tender bundle, which was largely in the form of legal correspondence, text messages between the parties and unsworn hearsay reports and representations in respect to relevant events, rather than first-hand accounts of what occurred.
For those reasons, I give the evidence presented by the wife in the form of her tender bundle little weight. Comparatively, the sworn evidence, set out in the husband’s affidavit, was plausible and the veracity of the evidence was not diminished in the process of cross-examination. In those circumstances, I give the husband’s evidence considerable weight.
Count 2
Count 2, as particularised above, contends that the mother contravened Order 4(b)(i) of the orders dated 8 May 2024, by failing to facilitate changeover of the child from the mother to the father on 13 August 2024.
By way of background, on 13 August 2024, the parents discussed changeover occurring at McDonald’s in Suburb F, which was confirmed to occur at 4.00 pm.
The father attested that the mother arrived at McDonald’s with X, who appeared happy and smiling. However, the father contends that the mother knelt next to X near the entrance and whispered something into her ear and that they stayed in this position for five minutes, causing X to become upset and grip her mother tighter.
From 4.05 pm to 6.50 pm, the father sent the mother text messages requesting the mother say goodbye to X and allow her to have time with him. He annexed those text messages to his affidavit (Father’s affidavit filed 24 January 2025, Annexure “E”). The father attests that the mother continued hugging X rather than encouraging her to move into the father’s care.
Significantly, the father attests at paragraph 23 of his affidavit that at about 4.30 pm, he heard the following conversation between the mother and the child in G Country language:
[Ms Jansen]: “Do you want to go home?”
[X]: “Yes, I want to go home. I will not stop crying until you take me back home.”
[Ms Jansen]: “I will wait until your tears will dry. We can go and play indoor[s].”
[X]: “I don't want to go to him. Will you take me back if I cry?”
[Ms Jansen]: “Yes.”
The father states that the mother then took X to the play equipment, and did not acknowledge the father’s presence. The father observed X looking healthy and energetic, running through the play equipment, without signs of being distressed.
The father states that at about 4.58 pm, he bought X an ice cream to refocus her attention on him and that, rather than encouraging the child to focus her attention on the father, the mother continued to stay with X, giving her milk and buying her dinner at McDonald’s, despite the father stating he wanted to give X dinner at his home.
The father attests at paragraphs 27–29 of his affidavit that at around 6.34 pm, the mother said to X: “Dad needs to allow you to go home” and he observed X to start crying. The father states that at approximately 6.51 pm, the mother said to X: “Dad doesn’t allow you to be at my home”, and that the child continued to cry. The father states that at 6.55 pm, the mother took X’s hand and started to walk out of the restaurant towards the carpark saying, “[w]e are coming back home”. The father contends he replied, “I disagree” and that the mother ignored his response and left with X, driving away at approximately 7.03 pm.
Counsel for the mother contends that the mother did all she could to facilitate the changeover by being punctual to the correct changeover location, bringing the child with her and by spending time with the child who was distressed at the changeover location. Counsel for the mother notes that she did not leave with the child as soon as the child was distressed and that the mother stayed with the child at McDonald’s for almost three hours.
In circumstances where I give significant weight to the father’s evidence, I find on the balance of probabilities, that the mother hindered X from transitioning into the father’s care for reasons set out below.
I accept that X was distressed for a considerable time during that three-hour period, but rather than facilitating a swift changeover, as discussed by the parents prior to the changeover, the mother did the opposite. This is shown by the conversation in Country G language overheard by the father, which occurred between the mother and child at approximately 4.30 pm, which satisfies me that the mother gave psychological permission to the child to remain distressed by saying if the child cries she would take her home rather than encouraging the child to move into the father’s care.
Comparatively, there is an absence of evidence that the mother made any positive comments about encouraging X to move into her father’s care and return to his home to spend the evening with him. To the contrary, the mother gave the child milk and purchased dinner for the child, removing the incentive to go with the father. Moreover, rather than encouraging the child to move into the father’s care, she remained with X for a period of almost three hours, rather than effecting changeover in a swift and straight forward manner.
As such, I find that Count 2 has been established.
Count 5
This Count contends that the mother did not facilitate the changeover of X into the father’s care on 3 September 2024, contrary to Order 4(a)(i) of the orders of 8 May 2024.
The father contends that he and the mother had messaged on the morning of 3 September 2024, at which time the mother advised the father that the child was unwell. Following this exchange, the parties agreed that the mother would drop X to daycare at 1.30 pm and that the mother would leave her medication with her.
The father states that he arrived at the child’s daycare at 3.l5 pm to collect X from daycare and that, after signing X out at the entrance, he walked into the classroom to pick her up but could not see X in the room, at which time one of the teachers pointed outside and he saw the mother cuddling X.
He was advised by a daycare staff member that the mother had signed X in at 1.36 pm that day and remained with her for the entire period after that time.
The father asked the staff member if she could guide X back into the classroom so he could take her home. The staff member initially agreed to do so but came back and said she was unable to guide the child back to the class. The father contends that he then approached the mother and the child and that he tried to distract X by taking her hand, tickling her foot, kissing her forehead, and asking her to come with him. He attested that while doing so, the child was in the mother’s arms and the mother did not acknowledge his presence and, when he attempted to sit next to the child in the mother’s arms, the mother turned her back on him so that the child was also not facing the father and moved with the child to another spot.
The father attests that at around 5.00 pm, X started conversing with him and running around and that he managed to play with X for a little while, but at some point, she fell over while running and ran back to her mother.
The father contends that the mother stayed at daycare with the child until 6.00 pm, when the daycare staff asked the parents to leave as the daycare was closing. The father contends that he made a last attempt to take X into his care, but the mother would not let go of X.
The father attested that, as a result, he decided not to further press the issue and decided to leave and go home without the child. The father states that X missed her English lesson at 4.30 pm due to the mother not facilitating changeover.
For the following reasons, I find that the mother failed to make a reasonable attempt to comply with the order other than by taking the child to the daycare centre. I respectfully reject the submission made by counsel for the mother that by the mother staying at daycare for a long period of time with the child, she made a reasonable attempt to facilitate changeover.
It can reasonably be inferred by the parties’ communication, that the purpose of arranging changeover at daycare is that there would have been an intervening period between the child being in the mother’s care, the child being dropped off at daycare and the father picking the child up after daycare. This did not occur as a result of the mother remaining present at the daycare centre.
The events that occurred on that day satisfy me that the mother interfered with the child spending time with the father by engaging in the following conduct:
(a)The mother failed to acknowledge the father.
(b)The mother turned her back on the father, also turning the child in her arms away from him, while he was attempting to engage with the child through affectionate gestures such as taking her hand and tickling her foot.
I am satisfied that, in doing so, the father made active attempts to engage with the child despite the lack of verbal communication with the mother.
The mother’s actions physically and psychologically hindered the child’s transition into the father’s care.
When positive progress was being made, with X eventually relaxing and interacting with her father, the mother failed to take the opportunity to leave the daycare centre, thereby facilitating a less distressing transition for the child into the father’s care.
This was compounded after the child fell and hurt herself and ran back to the care of her mother to find comfort. If the mother had not remained at the centre that would not have been possible, and it would have been more likely that the child would have sought comfort from her father. I am satisfied that the mother’s presence and actions significantly impacted the child’s willingness to transition to the father’s care.
Successful child transitions require cooperation and effective communication between both parents, and I am satisfied that the mother failed to show such cooperation and effective communication on that day. I find that she made no reasonable attempt to comply with the order by remaining at the daycare centre rather than dropping the child off and that she engaged in conduct when the father arrived to pick the child up from daycare, which further hindered a swift and non-traumatic changeover of the child into the father’s care.
On that basis, Count 5 is also established.
Count 6
In this Count, the father contends that without reasonable excuse, the mother did not facilitate changeover of the child into his care on 14 September 2024 at 3.00 pm at McDonald’s in Suburb F in breach of Order 4(b)(ii) of orders dated 8 May 2024.
By way of background to this Count, the father attests that on 10 September 2024, the mother emailed the father the following: “To make things easier for [X], I would come with mine and [X’s] friend for the next changeover. The person to whom [X] trusts and is familiar with. He will hand [X] to you” (Father’s affidavit filed 24 January 2025, Annexure “M”).
The father replied the next day voicing his strong opposition to the mother’s proposal. His opposition was confirmed in correspondence from his solicitors.
The father states that, despite the communication between the parties, on 14 September 2024 at around 3.00 pm, the mother exited her vehicle with X and a man whom the father had briefly met several years ago. The man stayed near the vehicle and observed the attempted changeover. In his affidavit at paragraph 70, the father voiced his suspicion that the gentleman was brought along as a witness rather than a facilitator. The events that followed explain why the father had that suspicion.
The father contends that the mother picked the child up and walked towards where the father was standing. The father states that he tried to talk to X, however, her head was over the mother’s shoulder and that, as he attempted to circle around the mother to see the child’s face, the mother shifted her stance so the father could not see X.
The father states that he attempted to take hold of X and was bringing her closer to his chest and said: “[l]et’s go get ice cream”. The child rejected that suggestion and reached out for her mother, who the father states held her hand and pulled her back from him. Not wanting the child to be pulled in two directions, the father released the child.
The father then walked over to the man who was accompanying the mother and had a brief conversation with him, before returning to approach X to give her a kiss on her forehead. The father then departed at about 3.07 pm.
The father stated that he took that course because he “did not wish to put myself yet again in a position where [the mother] would accuse me of escalating the situation or perpetrating family violence” (Father’s affidavit filed 24 January 2025, paragraph 72).
I respectfully agree with the submission of counsel for the father that, other than taking the child to the agreed location for changeover, the mother did nothing to positively encourage X to go with her father. Instead, by shifting her stance, she hindered the father communicating with the child and putting her at ease.
I am satisfied that the mother prevented the child from changing over into the father’s care in circumstances where she pulled X away from the father.
I am satisfied that X was inappropriately placed in a loyalty bind between her parents and, in doing so, the mother failed to take reasonable steps to encourage the child to move into her father’s care.
For these reasons, I find that Count 6 is established.
Count 12
In this Count, the father alleges that the mother, without reasonable excuse, did not facilitate the child attending the B Program in accordance with Order 6 of orders made by consent on 8 May 2024. The father alleges that the time and date of the alleged contravention was on 22 May 2024 at 1.55 pm at D Daycare.
The father’s evidence in respect to this alleged contravention is, in substance, that since the consent orders were made, the mother has failed to accurately record the times that she drops X off at daycare and the time at which she collects X in the afternoon.
In support of Count 12, the father refers to the Family Report dated 25 March 2025. At paragraph 255 of the Family Report, the writer expresses concerns in relation to X’s lack of English-speaking ability and the rate of her social progression for her age.
The evidentiary support relied upon by the father are the attendance records provided by the “[…] application” used by D Daycare to record the check in and check out times of students (Father’s affidavit filed 24 January 2025, Annexure “X”). The father also relied on email correspondence between himself and D Daycare, where the father collated information from the application on X’s attendance and requested that D Daycare confirm the accuracy of those attendance records summarised in his email of 17 June 2024. On 18 June 2024, D Daycare confirmed the accuracy of the information provided in the father’s previous email, which included X’s attendance on 22 May 2024. That correspondence became Exhibit 1 at the hearing.
The evidence detailed above indicates that on 22 May 2024, the mother signed the child in at 10.05 am and that, necessarily, it can be inferred that the child missed the morning B Program, which commenced at 9.00 am and finished at 11.30 am. On that day, the mother picked the child up at 1.55 pm and, as such, the father contends, it can be inferred that the child also missed the afternoon B Program, which occurred between 1.30 pm to 3.00 pm.
The cross-examination of the father in respect to this contravention focussed upon the possibility of the sign in and sign out times recorded by D Daycare as potentially being inaccurate.
In considering this alleged contravention, it is unnecessary to determine the accuracy of the daycare records. Even assuming the daycare records are accurate, the father has failed to sustain this alleged contravention.
This is because the obligation imposed upon the parents by Order 6 of the orders made on 8 May 2024 is that X is “to attend” at least one B Program on each day she attends daycare. It is quite possible that, even assuming the mother arrived with X at 10.05 am, that X did attend the remainder of the daycare program, albeit not the totality of it. It is also possible that X attended the afternoon program despite, as the father contends, leaving at 1.55 pm, albeit, again, not remaining for the totality of the program.
There is a degree of ambiguity in the use of the word “attend” in Order 6 of the orders of 8 May 2024 and, in that context, one possible construction is that the word “attend” should be construed as meaning ‘punctually attend and remain at’. Nonetheless, the ambiguity remains.
It is a fundamental principle that “if the court is to punish anyone for not carrying out its order the order must in unambiguous terms direct what is to be done”: Iberian Trust Ltd v Founders Trust and Investment Co [1932] 2 KB 87 at 95.
Consistent with that principle, in Hale v Hale [2011] FMCAfam 1107 at [57] Brown FM, as his Honour then was, stated:
…[I]f there is any ambiguity arising from the order or orders, which give rise to the contravention application in question, such ambiguity should be resolved in favour of the person facing the contravention. It being fundamental that he or she can only be found responsible for an act or omission if he or she knows precisely what is required of him or her pursuant to the applicable order.
I respectfully apply and adopt the reasoning of Brown FM to the facts of this case. The ambiguity that exists in Order 6 of the orders of 8 May 2024 should be resolved in favour of the mother.
In those circumstances, the father has failed to sustain this alleged contravention.
Count 53
The father contends that the mother has contravened Order 17 of the orders made on 9 January 2024 by unilaterally ceasing X’s enrolment from D Daycare prior to her commencement at C Preschool, which is one month prior to the date that the father contends the parties agreed she would cease enrolment at D Daycare.
Noting that this Count relates to the enrolment of the child in daycare and preschool, and that the orders pertaining to her enrolment are made on different dates but are both ‘Order 17’, I have highlighted the dates to avoid confusion.
In that respect, Order 17 of the orders made on 9 January 2024 (emphasis added) provides:
The parties are to do all thing [sic] and sign all documents to facilitate [X’s] enrolment and attendance at [D Daycare] for three days per week (in whichever configuration offered by [D Daycare]) immediately upon a spot becoming available.
The father contends that Order 17 of the orders made on 9 January 2024 requires the parties to ensure that not only was the child enrolled at D Daycare, but that she remains in attendance until starting at C Preschool on 30 January 2025.
Relevantly, it is to be noted that Order 17 of 8 May 2024 (emphasis added) provides that: “[X] is to attend [C Preschool] commencing in Term 1, 2025 and [C School] in 2026 unless otherwise agreed in writing by the parties”.
However, in this case it is impermissible to rely upon an order that postdates Order 17 of the orders of 9 January 2024 to construe the purpose and intention of that order.
The order is clear and specific it requires the parties “to do all thing [sic] and sign all documents to facilitate [X’s] enrolment and attendance at [D Daycare]”. The order is silent as to the duration of the enrolment, although, given that it is a daycare it can necessarily be inferred that the enrolment would not be indefinite.
The father contends that the mother unilaterally ceased the child’s daycare enrolment to end in late December 2024, despite what, he contends, was the parties’ agreement for X to attend D Daycare until she commenced at C Preschool in January 2025.
The father contends that Order 17 of the orders made on 9 January 2024 should be construed as reflecting the parties’ intention that the child should remain attending daycare until immediately before she commenced C Preschool at the end of January 2025 (Father’s affidavit filed 24 January 2025, paragraph 112). Counsel for the father submitted that Order 17 of the orders of 9 January 2024 was interim in nature and that, as such, does not require an end date as they are presumed to continue until further order from the Court.
Comparatively, the mother contends, through her counsel, that she construed Order 17 of the orders of 9 January 2024 as requiring the parents to ensure the child’s enrolment at daycare until the commencement of the Christmas vacation period in 2024, prior to the child attending C Preschool in January 2025.
As noted, Order 17 of the orders of 9 January 2024, is silent as to the contemplated conclusion of the child’s enrolment at daycare. That omission has given rise to the ambiguity that underpins the parties’ disagreement as to the anticipated end date of the child’s enrolment in daycare.
That ambiguity cannot be resolved by implicitly relying upon an order that postdates the orders of 9 January 2024. That is not to say that the father may well have a legitimate grievance that the mother unilaterally terminated the child’s enrolment in daycare at a time prior to his wishes. But that does not establish contravention of Order 17 of the orders of 9 January 2024, which requires the parties to enrol the child in daycare. Clearly that was done.
Order 17 of orders of 9 January 2024 fails to provide an end date of the child’s enrolment in daycare, which consequently, creates ambiguity. For reasons that I have earlier provided, any order with ambiguity, which it is contended that the mother has contravened, must be resolved in favour of the mother.
Accordingly, the father has failed to sustain this alleged contravention.
ORDERS AND FURTHER PROCEEDINGS
Accordingly, the father has succeeded in proving Counts 5, 6 and 12 of his Contravention Application. The orders will reflect that the mother has contravened orders of 8 May 2024.
As discussed with counsel for the parties, I will also make directions for the mother to file and serve her affidavit as to reasonable excuse within 14 days of the date of these orders.
I will also enable the father to file and serve an affidavit strictly in reply to mother’s affidavit within a further 14 days.
The proceedings will be listed on 11 August 2025 to hear further argument in respect to the mother’s defence of reasonable excuse and to consider whether there should be any variation of the orders of 8 May 2024.
I will also give the parties liberty to apply directly to my chambers in the event that, informed by this decision and a shortly to be obtained Family Report, they jointly and consensually wish to vary this timetable with a view to attending family dispute resolution.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 16 May 2025
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