KELSON & DELL

In the Family Court of Australia, Berman J considered a contravention application and an application for variation of final orders concerning two children, X and Y. The mother alleged the father had contravened final orders by changing the children's schools, an admission the father made. However, neither party sought to uphold the original final orders, and the court found the contravention to be less serious, particularly as it was the father's first breach.

The court was required to determine whether to impose a penalty for the contravention, given its limited utility in ensuring future compliance. Additionally, the court had to consider the variation of existing final orders regarding the children's living arrangements and time spent with each parent, as the original orders no longer reflected the current circumstances. One child, X, now lived with the mother, while the other, Y, lived with the father in Queensland. The court also had to address the child Y's expressed wishes regarding time spent with the mother and the mother's siblings, and the potential for religious pressure.

Berman J reasoned that given the limited utility of a penalty for future compliance and the father's first breach, no penalty would be imposed for the contravention. The court found that the original final orders were no longer reflective of the children's current living arrangements. The court made new orders for X to live with the mother and Y to live with the father, with specific provisions for Y to spend time with the mother during upcoming school holidays, subject to agreement and travel restrictions. Crucially, an injunction was granted restraining the mother from involving Y in activities of the B Church, including specific religious concepts, unless Y wished to attend, reflecting the child's concerns about religious pressure.