McDonald & McDonald - [2022] FedCFamC1F 367

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
McDonald & McDonald [2022] FedCFamC1F 367

File number(s): SYC 7594 of 2013

Judgment of: ALTOBELLI J

Date of judgment: 27 May 2022

Catchwords: FAMILY LAW – CONTRAVENTION – Application by the father alleging six contraventions – Where complexity arises from the children being diagnosed with Autism Spectrum Disorder – Where Court is satisfied on the balance of probabilities that five of the contraventions are established – Finding that the mother hindered and prevented the operation of the orders pursuant to s 65N of the Family Law Act 1975 (Cth) – Where the mother failed to establish reasonable excuse – Where the mother is sanctioned under Subdivision F of Division 13A Part VII because the mother has previously been sanctioned – Where a bond of two years is imposed upon the mother – Where the bond requires the mother to address her anxiety concerning spend time arrangements with the father – Where parties seek variation of the operative orders pursuant to s 70NBA – Where Court varies the operative interim orders for supervised time to facilitate the spend time arrangements between the father and the children.

Legislation:
Family Law Act 1975 (Cth) ss 10B, 60CC, 65N, 70NAC, 70NAE, 70NAF, 70NBA, 70NFA, 70NFB, 70NFE

Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth)

Cases cited:
Childers & Lee (2008) FLC 93–356; [2008] FamCAFC 5

Mitty & Mitty [2012] FamCA 329

Seaward & MacDuff [2011] FamCA 1041

Stevenson v Hughes (1993) FLC 92–363; [1993] FamCA 14

Taikato v the Queen (1996) 186 CLR 454; [1996] HCA 28

Division: Division 1 First Instance

Number of paragraphs: 125

Date of last submission/s: 3 December 2021

Date of hearing: 6, 24 May 2021, 12, 22, 26 November 2021

Place: Sydney

The Applicant: Litigant in person

Counsel for the Respondent: Ms Kennedy

Solicitor for the Respondent: Broun Abrahams Burreket
ORDERS

SYC 7594 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS MCDONALD

Applicant

AND:
MR MCDONALD

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

27 MAY 2022

THE COURT ORDERS THAT:
1.The Court finds that the Respondent without reasonable excuse contravened:
(a)Orders 4(b) and 11 made on 31 August 2018 on 21 September 2019;
(b)Orders 4(b) and 11 made on 31 August 2018 on 14 December 2019;
(c)Orders 4(c) and 11 made on 31 August 2018 on 4, 5, and 6 October 2019;
(d)Orders 4(d) and 11 made on 31 August 2018 on 24 January 2020; and
(e)Orders 4(e) and 11 made on 31 August 2018 on 7 February 2020

pursuant to subdivision F of Division 13A of Part VII of the Family Law Act 1975 (Cth).
2.The Respondent shall forthwith enter into a good behaviour bond for the said contraventions in Order 1 upon the following conditions:
(a)The bond shall be without surety or security;
(b)To be of good behaviour for the duration of the bond, which shall include:
(i)compliance with all orders made between the parties under the Family Law Act 1975 (Cth); and
(ii)the Respondent attend upon a family counsellor for the purposes of family counselling as defined in section 10B of the Family Law Act 1975 (Cth) to address her anxiety about the children spending time with the Applicant.

(c)The bond shall be for a period of two years.

3.Pending further order, the orders made on 31 August 2018 are suspended to the extent necessary to give effect to these orders, as follows:
(a)The Applicant and Respondent forthwith do all things necessary to arrange for the children to spend supervised time with the father for two hours each alternate weekend commencing as soon as possible after the making of these orders at the C Services situated in Suburb D.
(b)Pending the availability of spaces for the children, the Applicant and Respondent are to forthwith do all things necessary to arrange for the children to spend supervised time with the Applicant on a fully paid basis at the C Services situated in Suburb D or using the services of any professional supervised contact service that has experience in supervising children with Autism Spectrum Disorder.
(c)The cost of the supervised contact is to be shared equally between the Applicant and Respondent.

4.Leave is granted to the parties and the Independent Children’s Lawyer to relist the matter before me on seven days’ notice in relation to any issues concerning the implementation of these orders, provided that in the event that such liberty is exercised the person seeking to relist the proceedings shall:
(a)Forthwith notify all other parties of the intention to make the request and the reason for same;
(b)Make the request for relisting in accordance with the Federal Circuit and Family Court of Australia protocol as to communication with chambers; and
(c)Contemporaneous with any notice of relisting serve upon all other parties a minute of orders to be sought together, in the case of the parties, with such evidence as is relied upon by the party in seeking such orders.

5.The matter is adjourned to 19 September 2022 at 9am for mention.
6.The Application – Contravention filed 11 February 2020 is otherwise dismissed.

THE COURT NOTES:
A.The purpose of the mention on 19 September 2022 is to review the orders made, to facilitate the involvement of the Independent Children’s Lawyer and to consider progressing this matter to an expedited final hearing.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 McDonald & McDonald has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
BACKGROUND

These reasons for judgment explain the orders made following the hearing of an Application – Contravention filed by Mr McDonald (“the father”) on 11 February 2020 (“the contravention application”). The case relates to two children, X and Y, both born in 2012 and aged nine years (“the children”). The children currently live with Ms McDonald (“the mother”), and spend no time with the father in person. The litigation concerning the children commenced in 2013, the year after they were born.
The operative orders in this matter were made by Judge Boyle on 31 August 2018 following a hearing on 19 and 20 April 2018 (“the orders”). The matter was originally listed for the final hearing of parenting issues before her Honour in September 2016, but interim orders were made on 21 October 2016 (“the 2016 orders”), and the matter adjourned part-heard.
The orders are reproduced in full in Schedule A to these reasons. In summary, the mother has sole parental responsibility subject to obligations to consult with the father, the children are to live with the mother and spend time with the father as defined in the orders. For present purposes, the relevant order is Order 4 and is reproduced below:
(4)That the children spend time with the father during school terms as agreed between the parties in writing and failing agreement:
(a)       From the date of these Orders to the conclusion of Term 4 2018:
(i)        Each alternate Saturday from 8:45am to 4:45pm;
(ii)       Each alternate Sunday from 8:45am to 4:45pm;
(b)At the conclusion Term 4 2018 from 8.45am on 25 December to 2.00pm on 26 December 2018 and each alternate weekend thereafter.
(c)During the school holiday periods at the conclusion of Term 1, Term 2 and Term 3 2019:
(i)From after school on Friday to 4.45pm Sunday, on the second weekend of each of the Term 1, 2 and 3 school holiday periods.
(d)       At the conclusion of Term 4, 2019:
(i)For three block periods of three nights as agreed in writing, and failing agreement from the third and fifth weeks from 4.45pm Friday to 4.45pm Monday and from 8.45am 24 December 2019 to 2.00pm on 25 December 2019.
(e)       From the commencement of Term 1, 2020:
(i)From after school on Friday to before school on Monday on each alternate weekend.
(f)During the school holiday periods at the conclusion of Term 1, Term 2, and Term 3 2020;
(i)For a block period of four nights as agreed in writing, and failing agreement from after school on the last day of Term and concluding at 4.45pm on the fourth day of the school holidays.
(a)[sic] During the school holiday period at the conclusion Term 4 2020 and thereafter:
(i)For two block periods of five nights as agreed in writing, and failing agreement and failing agreement the third and fifth weeks from 4.45pm Friday to 4.45pm Wednesday;
(i)[sic] In even numbered years from 2.00pm 25 December to 30 December 2020 at 4.45pm;
(ii)In odd numbered years from 2.00pm 20 December to 25 December at 4.45pm.
(b)[sic] During the school holiday periods at the conclusion of Term 1, Term 2, and Term 3 2021 and each school holiday period thereafter;
(i)For a block period of five nights as agreed in writing, and failing agreement from after school on the last day of Term and concluding at 4.45pm on the sixth day of the school holidays.
Order 6 is also relevant for the contravention application and is reproduced below:
(6)That the children spend time with the parties on occasions of special significance as agreed between the parties in writing and failing agreement:
(a)In the event that the children are not otherwise with the father pursuant to these Orders, the children shall spend time with the father:
(i)From 9.00am to 5.00pm on Father’s Day;
(ii)From 9.00am to 5.00pm on Orthodox Easter Sunday and St Nicholas’s Day as celebrated by the Orthodox Church;
(iii)On the children’s and father’s birthdays, from after school until 6.30pm if the birthday falls on a school day;
(iv)On the children’s and father’s birthdays, from 8.45am until 11.45am if the birthday falls on a weekend or non-school day when the children are not already spending time with the father.
(b)In the event that the children are not otherwise with the mother pursuant to these Orders, the children shall spend time with the mother:
(i)From 9.00am to 5.00pm on Mother’s day;
(ii)On the children’s and mother’s birthdays, from 8.45am until 11.45am if the birthday falls on a weekend or non-school day when the children are otherwise with the father.
Order 11, dealing with changeover, is relied on by the father and also reproduced below:
(11) To facilitate the father’s time with the children as provided for in these Orders:
(a)The parties shall do all things necessary to arrange with C Services Suburb D for changeover to occur at their contact centre;
(b)The mother shall deliver the children to C Services at the commencement of the father’s time and the father shall return the children to C Services at the conclusion of his time;
(c)In the event that C Services is not available changeover shall take place at E Playground.
(d)That should time between the father and children commence or conclude before or after school, the father shall collect or return the children from school.
It is important to note that the obligations on the parents arise not just from the orders, but from specific sections of the Family Law Act 1975 (Cth) (“the Act”). Section 65N, states:
65NGeneral obligations created by parenting order that deals with whom a child spends time with
(1)This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.
(2) A person must not:
(a)hinder or prevent a person and the child from spending time together in accordance with the order; or
(b)interfere with a person and the child benefiting from spending time with each other under the order.
In his contravention application, the father alleges that the mother contravened Orders 4(b), 4(c), 4(d), 6(a), 4(e) and Order 11 of the orders. The particulars of the same will be identified below.
The mother denied that she had contravened the orders in question and, after a prima facie case was found against her having regard to the evidence of the father, argued in the alternative that she had a reasonable excuse.
As it became apparent that the orders were not working in the best interests of the children, the parents proposed alternate orders for the Court to make pursuant to the powers granted to it under s 70NBA of the Act.
The father represented himself in this case, and the mother was represented by an experienced solicitor and family law counsel.
THE REASONS FOR JUDGMENT OF JUDGE BOYLE, 31 AUGUST 2018
The reasons for judgment of her Honour were tendered in the mother’s case and became exhibit R12. The reasons provide important background, and her Honour’s findings as to certain matters become an important benchmark in this case.
Her Honour explained that about one month before the commencement of the 2016 hearing, the children, then aged five, were diagnosed with Autism Spectrum Disorder Level 1 (“ASD”). This was a significant development at the time. In particular, the single joint expert, Dr F, was unable to recommend when the children should move to overnight time with the father, as this depended on the progress of the children’s therapeutic intervention. Thus, the 2016 orders provided for weekly time with the father to become unsupervised, and to move from four to six hours.
Her Honour noted that there was a longstanding issue about the parents’ ability to communicate about the children’s needs. While family therapy was ordered in 2016, it did not appear to have succeeded by 2018.
By the time of the adjourned hearing that commenced on 19 April 2018, the father was seeking orders for overnight time, eventually progressing to substantial and significant time. Significantly, the mother proposed orders that provided for the father’s time to become unsupervised, and to progress to overnight time during the school term by 2020, but overnight time during school holidays as early as Term 1 2019.
For present purposes, her Honour made a number of significant findings, as follows:
(a)At [41], that the children have spent time with the father since the parents separated in April 2013 and were now able to transition happily into his care through the C. Her Honour referred to this as a “significant development” as the children had previously experienced difficulty in coping with transitions.
(b)At [43], her Honour found that the children are not in need of protection from abuse, neglect or family violence with either parent.
(c)At [48], her Honour noted that the mother’s concerns about the father’s parenting skills manifested her lack of trust in him. The mother had been relying on various comments made by the children following their time with the father, in support of her concerns, “notwithstanding that these are five year olds with ASD and there is no suggestion that they are reliable reporters of information.”
(d)At [51], her Honour noted the difficulty of the parents working together for the children’s benefit, and, in particular, the father’s inability to recognise when opportunities to build a cooperative parental relationship are offered. The mother, in turn, was concerned about the father’s motives when opportunities for him to gain skills and assistance were rejected for reasons that were not made clear.
(e)Her Honour’s possible exasperation with the parents is hinted at in [55] where she found that the use of a communication book had not assisted the parties’ relationship, but became a source of frustration for both. Accordingly, her Honour did not propose continuing any requirement for the use of a communication book.
(f)At [61], her Honour found that the children had not yet spent a night away from the mother.
(g)At [62], her Honour observed the abundance of evidence about the children’s difficulties in managing change. Her Honour also observed that, while it took considerable time for them to settle into changeovers through C Services, this had been achieved and both parents agreed that it was working for the children now.
(h)At [71], her Honour foreshadowed orders intended to provide for the father’s time to extend to overnight in a way manageable for the children. Her Honour referred to the evidence of Dr G which suggested there was a good relationship between the father and children to build on. Her Honour recognised that the mother would be anxious about changing arrangements for the children, but noted that the pace of change was designed to accommodate those needs.
(i)At [75], her Honour found that the mother unilaterally suspended the father’s time with the children on 21 April 2017. The children did not spend time with the father for two months. Her Honour noted that the mother should not have suspended the father’s time in the manner in which she did.
(j)At [83], her Honour found that Ms H, a psychologist who had been working closely with the children, had seen a significant improvement in the children’s behaviour over the course of her involvement.
(k)At [85] and [86], her Honour expressed concerns that the evidence suggested the father had not developed a real insight into the issues confronting the children, and that the father needed to develop skills to manage their behaviour.
(l)At [87], her Honour foreshadowed orders that would require the father to engage with an occupational therapist when the children are with him. As it turns out, that did not occur.
(m)At [90], in considering s 60CC(3)(j), her Honour stated, “I do not find that family violence is a feature of the matter.”
(n)At [94], her Honour stated:
It is difficult to forecast how the children will progress in this matter, and what may work for them in terms of time arrangements in the future. The orders I propose making will ensure a steady progression of time with their father, which can involve their extended paternal family through their father. To do otherwise would invite further litigation in this matter. This would be unlikely to assist the parties in their communication about the children, nor assist them in focusing on the children’s needs.
(o)At [97], her Honour found that the parents are unable to communicate effectively, and that a lack of trust permeates their relationship. She noted the previous orders with respect to family therapy had proved ineffective. This was in the context of deciding that an order for sole parental responsibility should be made.
(p)Finally, at [107], her Honour stated:
These orders are intended to provide arrangements that safeguard the children developing their relationship with their father, and through him their paternal family. The time arrangements will progress to overnight time, and holiday time in a way that is manageable for the children and the mother.
THE EVIDENCE

In support of his case, the father relied on the following:
(a)His Initiating Application filed 20 December 2013;
(b)The Initiating Application filed by Ms B McDonald (“the paternal grandmother”) on 4 May 2017;
(c)Affidavit of Ms J filed 16 April 2018;
(d)Orders of Judge Boyle made 31 August 2018;
(e)His Application – Contravention filed 6 November 2018;
(f)Respondent’s representative’s letter to the Applicant dated 27 February 2019;
(g)Orders of Judge Vasta made 6 March 2019;
(h)Two emails from the mother to the father dated 7 and 31 October 2019;
(i)His Application – Contravention filed 11 February 2020;
(j)Affidavit of the paternal grandmother filed 11 February 2020;
(k)Affidavit of Ms K filed 2 June 2020;
(l)Affidavit of the paternal grandmother filed 10 June 2020;
(m)His Affidavit filed 23 June 2020;
(n)Affidavit of the paternal grandmother filed 2 February 2021;
(o)His Affidavit filed 26 September 2021;
(p)Affidavit of the paternal grandmother filed 26 September 2021;
(q)Orders of Altobelli J made 30 September 2021;
(r)His Case Summary filed 11 November 2021; and
(s)Various documents tendered and marked as exhibits A1–A5.
In support of her case, the mother relied on the following:
(a)Her Affidavit filed 29 August 2016;
(b)Her Affidavit filed 24 April 2020;
(c)Affidavit of Ms H filed 3 September 2020;
(d)Affidavit of Ms L filed 7 September 2020;
(e)Her Affidavit filed 8 February 2021;
(f)Affidavit of Dr M filed 29 April 2021;
(g)Her Affidavit filed 24 September 2021; and
(h)Various documents tendered and marked as exhibits R1–R17.
THE APPLICABLE LAW
The applicable law in respect of failure to comply with orders that affect children is contained in Div 13A of Pt VII of the Act. Section 70NAC sets out what must be established to satisfy a Court that a contravention took place:
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.
The standard of proof that applies in determining whether a person has contravened an order, and if they are found to have contravened, whether the person had a reasonable excuse for doing so, is proof on the balance of probabilities (s 70NAF of the Act).
Reasonable excuse
If a contravention is established, the Court must then determine whether the respondent has demonstrated that he/she had a reasonable excuse for failing to comply with the orders. A “reasonable excuse” is defined in s 70NAE of the Act as:
(1)The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
(2)A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.
…
(4)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a)the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(5)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(6)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(7)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:
(a)the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
The High Court’s comments in Taikato v the Queen (1996) 186 CLR 454 at 466 (cited in a family law context in cases such as Seaward & MacDuff [2011] FamCA 1041 and Mitty & Mitty [2012] FamCA 329), are of assistance in relation to the interpretation of the term “reasonable excuse”:
The term “reasonable excuse” has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of “reasonable excuse” is an exception…
…
However, the reality is that when legislatures enact defences such as “reasonable excuse” they effectively give, and intend to give, to the courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence. That being so, the courts must give effect to the will of Parliament and give effect to their own ideas of what is a “reasonable excuse” in cases…
(Footnotes omitted)
CONCESSIONS MADE BY THE MOTHER
Before the evidence commenced, the mother, through her counsel, quite properly made a number of concessions. The mother conceded that:
(a)       The order of 31 August 2018 was in force at the time of the alleged contraventions;
(b)       She was aware of the terms of the order at the relevant time.
(c)       The father attended at the time and place stipulated for changeover; and
(d)The Court notes that, in cross-examination, the mother conceded that the children did not spend time with their father, in accordance with the orders, on the dates stipulated in the contravention application.
The mother, nonetheless, argued that there had been no contravention of the orders on her part. However, if the Court found that she had contravened the orders, she asserted that there was a reasonable excuse.
ALLEGED CONTRAVENTIONS OF ORDERS 4(B) AND 11
Order 4(b) prescribes that the children spend time with the father during school terms as agreed between the parties in writing and, failing agreement, at the conclusion of Term 4 of 2018, from 8.45 am on 25 December 2018 to 2 pm on 26 December 2018, and each alternative weekend thereafter. Moreover, Order 11 of the orders prescribes that to facilitate the father’s time with the children as provided for in the orders, the parties were to make arrangements for changeover to occur at C Services, but, if C Services was not available, then changeover was to take place at E Playground.
The Court notes that 25 December 2018 was a Tuesday, and thus the alternate weekends were calculated by reference to that day. Nothing turns on this.
There are four alleged contraventions of these orders.
The father alleges that, without reasonable excuse, the mother did not comply with Orders 4(b) and 11 on 21 and 22 September 2019. The father’s evidence about this event is found in his affidavit filed 11 February 2020 and 5 February 2021. The evidence is consistent. He does not dispute that the mother and children were at E Playground. He contends that he waited there from 8.40 am until 12.45 pm at which point in time the mother left the park with the children without effecting a handover.
The mother’s evidence is found at paragraph 57 of her affidavit filed 24 April 2020. She asserts that the children refused to go with their father:
I attempted to leave the park over and over again, but [Y] and [X] would follow me over the fence near the road and cry and beg me to take them. I used all the distractions and tried to convince the boys to go. [Y] and [X] stayed very close to me most of the time and would play for a bit if I promised not to move.
At 1 pm, she tried again to say goodbye and leave, but Y jumped in the car and would not get out. The father was filming during this period. At paragraph 57.5 she deposes to having asked the children why they would not go with their father and Y saying, “they hit us and tell everyone they don’t. Dad takes me to nanny’s house and they get mad with me.”
The father was cross-examined about this event. He was sitting on a park bench. It was put to him that he did not engage with the children, but he insisted that he did. He agreed that, when the mother attempted to leave the park, the children would follow her. He firmly disagreed with the proposition that for three hours the mother tried to encourage the children to go over to him. He disagreed that the mother continuously attempted to engage the children to see him. He said that he was trying to offer positive reinforcement to the children to come over. He strongly disagreed with the contention that he simply sat on the park fence and did nothing but watch what counsel described as “the drama unfold”. When it was suggested that he made no effort to regulate the children’s behaviour as they were jumping in and out of their mother’s car, he responded that they were under the mother’s control. The father accepted in cross-examination that the mother did try to walk away from the children, but insisted that she then called them towards her. He explained that he tried to engage with the children, getting down at their level, and playing with them on the equipment.
The mother was cross-examined about this event. She conceded that between March and September 2019 the children had spent time with their father in accordance with the orders and on arrival at the park generally ran towards the father. She agreed that in this period they would walk towards him and she would be able to leave. Between March and September 2019 she described the changeovers as being “quite short” and “perhaps five minutes tops”. She agreed that between March and September 2019 there was overnight time in accordance with the orders. She agreed that, pursuant to an order dated 6 March 2019 made by Judge Vasta, she consented to orders that she had contravened the orders made 31 August 2018 and that there was to be makeup time on the weekends of 8 and 22 March and 5 April 2019. She agreed in cross-examination that this took place in accordance with the orders.
Turning to 21 September 2019, the mother agreed that “perhaps” she had changed the way that she entered the park. The context of the question and answer indicated that this was a change from the previous arrangements. She explained that perhaps both the children and she had jumped over the fence. The mother agreed that there was an arrangement for the children to have an overnight bag that had started as early as March 2019. She said that the children “always” had that bag. She agreed that she had no concerns about either the contents of the bag, or about the bag being returned with the children.
The Court notes that the significance of the overnight bag was that it was a security symbol for the children that marked the passing of the children from the care of one parent to another. This was the mother’s evidence, which the father did not cavil with.
The father suggested to the mother that she had left the overnight bag near a table or a swing. She agreed, explaining that, in the alternative, she would tell the children to take the bag there. On 21 September 2019, the mother agreed that she walked away to another part of the park, but did not recall whether she left the bag in one place, as was suggested by the father.
The mother agreed that she did not bring the children over to where the father was seated, explaining that they were anxious. When asked why she simply did not leave the children with him on the day, she explained that she tried to leave them but they would follow her, locking themselves in the car, and causing “hysteria”. She explained, “I could not leave the park safely as the children were so close to me.”
The mother agreed that she probably arrived with the children’s overnight bag. She did not recall, however, whether she placed it on a nearby park bench. When the father suggested that he was already there when she arrived, he asked her whether she gave the bag to him. She explained, words to the effect, that, if he were there, she would have given the bag to the children to take to him. If he was not there, she would have put it down. The father asked the mother whether she then moved some distance away, after giving the bag to the children. She explained that they moved around a lot. When asked whether she said goodbye to the children and attempted to leave, she explained that she had tried to, but that the children were stressed. The father suggested to the mother that she held onto the children physically once they had entered the park. The mother explained, using words to the effect, “no, not unless they came up for a cuddle.” She agreed that at different points in time on this day when they were at the park they did walk around the park.
The father suggested that the children had moved towards the play equipment at the park that day and played on it. The mother replied with words to the effect of “Maybe, I don't remember.” The father suggested that she had called the children back to herself regularly, but she denied this.
At about 12 pm the mother agreed that she asked the father to find some food for the children. She denied, however, sending them over to get some food. She agreed that, eventually, the children were fed by the father. She denied, however, that she called them back to her, and then left straight away. She agreed that she and the children were at the park for four hours.
The father contends, in effect, that the mother did not do everything she could to facilitate the children going into the father’s care. The mother contends, primarily, that she did do everything she was required to by the orders. Alternatively, however, the distress of the children meant she could do no more than she did.
The mother’s affidavit says hardly anything about what she did to facilitate changeover. The first sentence of paragraph 57.1 seems to summarise her attitude: “[Y] and [X] refused to go with their father.” She talks about attempting to leave the park “over and over again”, but the children would follow her. She says nothing, however, about what she said or did to actually facilitate the children going into the father’s care.
There had been no difficulties with changeover in the period from March to September 2019. The children had, seemingly, successfully spent time with their father in the preceding six months, including overnight time.
The children’s overnight bag appears to have had a particular symbolism for them. It was akin to a transition ritual marking the transfer of their care from their mother to father, and then father to mother. This is significant as the children have ASD and Ms H’s evidence emphasised the importance to them of routine.
The evidence indicates that the mother neither gave the overnight bag to the children to give to the father, nor gave the overnight bag to the father herself. Indeed, the evidence suggests that at no point did the mother approach the father, either with or without the children.
The Court does not accept that the mother’s obligation to comply with the orders was satisfied by merely delivering the children to E Playground. She had to do more. As Fogarty J, sitting on the Full Court in Stevenson v Hughes (1993) FLC 92-363 and positively citing the primary judge’s reasons for judgment, explains (at 79,815–79,816):
Section 112AB(1) provides in effect that where a person is bound by an order such as an access order, a breach may occur where that person makes no reasonable attempt to comply with the order. That is a statutory statement of the obligation but I thought that her Honour explained aspects of that in several passages of her judgment which I think should be reproduced. Her Honour said this: —
“There is also implicit in every order for access an obligation imposed upon the custodian to take reasonable steps to do what they can to ensure that the stipulated contact occurs.”
Then there is the following passage which, although lengthy, is worthy of being repeated and it is as follows: —
“I have already made reference to the implied obligation of the custodian to take reasonable steps to ensure that the access stipulated in an order takes place. Words and actions have meaning in context and affect. It is not a sufficient discharge of custodian's obligations, express or implied, to point to words and actions and to say, in effect: `You see I tried. But the child does not want to go,' and thereafter to figuratively fold their arms as if that were an end of the matter.
Theirs is an active role with an obligation to positively encourage access. It is not a discharge of their duty to set up access to fail. That is to say, it is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with the obligation.”

The Court finds that the mother did not do enough to facilitate the children going into the father’s care. On this occasion, she could have approached him, with the children, and left the bag with the father. She could have given the bag to the children to take to their father. There were probably other things she could have done. She was content to be a passive bystander. Her role, however, should have been an active one. Moreover, the Court is satisfied that the mother has failed to comply with s 65N of the Act. Both her actions and inaction on the day in question fall within the provisions of s 65N(2)(a) and (b).
The Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) explains in respect to the purpose of s 65N:
Under new section 65N a person must not hinder or prevent a person spending time with the child in accordance with the parenting order, or interfere with a person and the child benefiting from spending time with each other under the order.
The Full Court in Childers & Leslie (2008) FLC 93–356 highlights the function of s 65N, and the prohibition of frustration of parenting orders generally, in maintaining the purpose of the Act at [34]:
34The relevant context also includes authoritive statements of the court about like cases, of which the following statements In the Marriage of Gaunt (1978) FLC 90-468 are a good example (at 77,398):
The essential question is this - can a party who does not agree with a court’s decision about access defy the order and then plead that in preventing access his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child? The question of the child’s welfare is, of course, the paramount consideration for the court in determining the access question in the first place. To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the court’s order or from the consequences of non-compliance would undermine the purpose and intentions of the Act.
Accordingly, the Court finds that the mother failed to comply with Orders 4(b) and 11 on 21 September 2019.
The father separately contended that the breach occurred on 22 September 2019, but that cannot be the case as her obligation was to make the children available on 21 September 2019.
The father further alleges that, contrary to Orders 4(b) and 11, the mother did not provide the children on 14 December 2019.
The father’s evidence is in many ways similar to his evidence in relation to 21 September 2019. He says he attended the park between 8.40 am and 10.53 am. The mother and children were at the park, but left at 10.50 am without the children having come into his care.
At paragraph 76 of the mother’s affidavit filed 24 April 2020, she says she arrived at the park at 8.40 am, put the overnight bag down near the swing and said, presumably to the children or one of them, “give it to your father when he comes.” She deposes that the father arrived at 8.50 am. She deposes that the paternal grandmother was already there. The Court notes that, pursuant to the orders, the paternal grandmother was entitled to be there. The mother refers to Y asking to leave at some time before 9 am, and both children becoming more anxious. She deposes to the children becoming more anxious, seemingly, or by implication, because the paternal grandmother moved closer to them. Once again, the Court notes that the mother’s evidence is significant insofar as it does not describe what she did to facilitate the children going into the father’s care. She does not say where the father was in relation to her.
The father was cross-examined about this event. He disagreed when it was suggested that Y had said he did not want to stay and that he was getting agitated. He disagreed that the children started asking the mother not to leave them. He disagreed that they started getting violent with the mother, scratching her, and begging her not to go. Indeed, he insisted that the children came to him, that the mother recalled them and grabbed them back. When it was suggested that he could not control the children, he disagreed.
The mother was cross-examined. She denied holding onto the children physically as they entered the park. She agreed, however, that, during the first two hours in the park, she did not bring the children over to him. She insisted that she did not recall the children ever approaching him.
Consistent with the Court’s findings about 21 September 2019, the Court finds that the mother did not do enough to facilitate the children going into the father’s care. By her own evidence, she did not bring the children, or their overnight bag, to the father. Whether or not she physically held the children back, as he contends, or called the children back when they came over to him, as he contends, on the mother’s own evidence she adopted a passive role which constitutes a failure to comply with s 65N and the orders.
THE ALLEGED CONTRAVENTION OF ORDERS 4(C) AND 11
The father contends that on 4 October 2019, continuing onto 5 and 6 October 2019, the mother failed to provide the children for the purposes of the school holidays, and in accordance with the orders.
The father’s evidence is consistent with his earlier evidence, namely, that the mother, the children, and he were all at the park and that she failed to facilitate the children coming into his care.
The mother deals with this event at paragraph 62 of her affidavit filed 24 April 2020. She explains that she arrived at E Playground at 4 pm and stayed until 6 pm. She asked the children to take the overnight bag to the father. The paternal grandmother took the overnight bag to the car. At 5 pm, the mother tried to leave, but the children followed and clung to her. She said to the father, “I am leaving in 10 minutes. If this doesn’t work, text me and we can try again tomorrow.” She deposes to the father saying to her, “No you have not handed over yet.” She said, “You have 10 minutes to make it work, make it work.” She deposes that the father said, “No, I don’t want to try again. We are going to court.”
Once again, the mother’s evidence is significant for what it does not say. Her evidence does not explain where the father was in relation to her. She does not depose to attempt to walk towards the father with the children. By her evidence she acknowledges the father’s case which was, in effect, that she had not facilitated changeover. Her own evidence suggests that the onus was on the father to “make it work”.
When the father was cross-examined about this event, it was suggested that he could not connect with the children to a sufficient level such that they would come into his care. The father acknowledged this, but explained, “... she’s calling them back.” He denied that the children were physically clinging to her.
The mother was cross-examined about this event. When the father asked her whether she said goodbye to the children and left shortly after arriving, she said, “No.” She did not agree, however, that she kept the children physically back.
Once again, the Court concludes, consistent with the previous two alleged contraventions, that the mother did not do enough to facilitate changeover and has thus contravened the order in question.
THE ALLEGED CONTRAVENTION OF ORDERS 4(D) AND 11
The father alleges that the mother contravened Order 4(d) during the period 24‑27 January 2020. Order 4(d) required that, at the conclusion of Term 4 2019, the father was to have the children for three block periods of three nights over a specified period.
In his affidavits, the father deposes to waiting in the park from 4.45 pm to 6.10 pm. The mother and the children were there. He deposes that the children each separately on a number of occasions told him that they were happy to spend the weekend with him and also said it was fair that they go with him. However, he deposes that each child was called over by the mother on a number of occasions, and, finally, the children were not allowed to go with him, by the mother.
The mother’s evidence about this event is found at paragraph 83 of her affidavit filed 24 April 2020. She deposes that she and the children went to the park and the children played. The children refused to go with the father. The mother and the children left. The mother makes no reference in her affidavit to the overnight bag. She says nothing about where she was in relation to the father, or whether she approached him, or sent the children over. She makes no attempt to respond to the father’s affidavits insofar as they assert that the children went over to him, and that she called them back.
In cross-examination the father agreed that the mother took the children to the park, and that the children would not come over to him. He agreed that the children were aware of the parental conflict. He disagreed with the proposition that his relationship with the children was at a low point, and insisted that, in fact, the children were talking with him on the day. It was suggested that he still could not engage with them sufficiently for them to leave the park with him. The father agreed, but added that this was because “they would constantly go back to their mother.” When it was suggested that the children were agitated, he responded that they have arrived in an agitated state.
The mother was cross-examined. She agreed that the children had, in fact, spent some time with both the father and paternal grandmother on this occasion. She denied, however, that the children came back to her and told her that they wanted to spend time with him and were happy to go with the father. She denied, once again, that she held onto the children to prevent them going to the father. The mother agreed that there were photographs indicating that the children were with the father and the paternal grandmother on the day in question. When it was suggested to her that the photographs indicated that there were no signs of distress in the children, the mother insisted that she could not tell from the photo.
The Court finds it hard to understand why the mother’s evidence in her affidavit filed 24 April 2020 about the events of 24 January 2020 is so minimalist. She deposes to the father filming and taking photos. She agreed in cross-examination that the children actually spent time with the father and paternal grandmother. Yet, she does not refer to this fact in her affidavit. The Court prefers the father’s evidence over that of the mother’s on this occasion. The absence of any reference to an overnight bag is indicative of a lack of intention to facilitate the children spending the overnight time with the father that was required by the orders. It is likely that she did hold the children back. What is clear to the Court is that, consistent with the previous alleged contraventions, there is much more that the mother could have done to facilitate the children going into the father’s care. The Court finds that the mother contravened Orders 4(d) and 11 on 24 January 2020.
THE ALLEGED CONTRAVENTION OF ORDERS 6(A) AND 11
The effect of Order 6(a) was that the children were to spend time with the father from 9 am to 5 pm on St Nicholas Day as celebrated by the Orthodox Church on 19 December. The father alleges that the mother failed to facilitate the children spending time with him on 19 December 2019 in accordance with this order.
The father’s evidence is once again similar to his earlier evidence. He waited at the park from 8.40 am to 11.15 am. He was there with the children’s cousins, W & Z. The children played together with their cousins. The mother was there. He alleges that the mother did not facilitate the children coming into his care.
The mother’s evidence in this regard is found at paragraph 78 of her affidavit filed 24 April 2020. Once again, with respect to her, her evidence is minimalistic. She agrees that the children’s cousins were at the park, and that they spoke to their cousins. She seems to concede that the children gave the father a hug, but then asserts that the children came over five minutes later and asked to be taken home. She concedes that they left the park after 11 am.
The father was cross-examined. It was suggested to the father that it took the children about half an hour to interact with their cousins, which the father denied. It was suggested that, even with the excitement of the presence of the cousins, he could not convince the children to leave the park with him. He responded that that was because they were not allowed to. He was invited to explain what he expected the mother to do. He answered, “To leave the children, hand them over, and then go.” When it was suggested to him that it was unrealistic to expect the mother to scoop them up and deliver them to him, the father accepted that.
The mother was cross-examined about this event. The mother agreed that the children’s cousins were there at the time that they arrived at the park. When it was suggested to her that she could have encouraged the children to play together with their cousins before the 30 minutes that it took them, the mother explained that she told the children to go and play but they were not ready. When it was suggested that the children showed no distress whatsoever, the mother acknowledged that she could not see any. She accepted that the children interacted with their cousins. She explained that the children, however, did not want to go and were certainly uncomfortable before the event. She tried to reassure them. She insisted that she encouraged them to spend time with the father.
From the Court’s perspective, 19 December 2019 was Court-ordered time for the children to spend time with the father. The presence of the paternal cousins was meant to facilitate this, rather than hinder it. The Court prefers the father’s evidence that the children did, in fact, interact with their cousins. There is insufficient evidence, however, to be able to make findings about what the mother and father each did, or did not do. The Court is thus unable to make any finding in relation to this alleged contravention.
ALLEGED CONTRAVENTION OF ORDERS 4(E) AND 11
Order 4(e) provides for the father to spend time with the children from after school on Friday to before school on Monday on each alternate weekend, from the commencement of Term 1 2020. The father alleges that this did not take place during the weekend commencing 7 February 2020.
The father’s evidence in his affidavits is that, consistent with Order 11(d), he went to the school at about 3 pm and waited near their classroom. He asserts the mother arrived at the school playground at about 3.05 pm. He noticed that she did not have an overnight bag with her for the children’s clothes that would have been needed for the weekend. At about 3.15 pm, the children left the classroom. The father helped X put on his raincoat, whilst the teacher’s aide similarly assisted Y. Both children ran down the nearby stairs and the mother left with the children. The father followed them for a short distance and then returned to the classroom area where he waited until 3.30 pm. The children were not handed over.
The mother’s evidence about this is found at paragraphs 84 and 85 of her affidavit filed 24 April 2020. She deposes that she went to school with the children as they were refusing to go to school unless she was there. She deposes, “I was there in case they refused to go with [the father].” She agrees that the father was standing near the classroom door with the paternal grandmother. The children came out, put their raincoats on, went past the father and the paternal grandmother and came straight to her. She said, “Hello, [X]. Are you going with your Dad?” He said, “No,” and ran off. She also asked the same question of Y, and he said, “No.” She deposes that both she and Y walked quickly to catch up with X with the father following them, shouting across the playground. They left at about 3.20 pm.
The father was cross-examined. For all practical purposes, there was no serious challenge to his evidence.
The mother was cross-examined. She agreed that the orders provided for changeover to occur at the school and she did not have an overnight bag. When asked to explain why, she explained that, if she had brought the overnight bag, the children would not have gone to school, as they would have refused to go home with the father. She accepted that, if the children had gone with the father, they would not have had an overnight bag. She denied that she had asked the school for permission to take the children out early that day. She accepted that she had done that on another occasion.
When asked whether the children were distressed at that particular time at school, the mother said words to the effect of, “It looked like anxiety was starting.” She denied, however, calling them over to her, holding them close and then moving quickly out of sight. When asked whether she supported the changeover at the school, she explained that she did, and that she was there in case they did not go with the father. She explained that she got them to school, which was a huge effort. She conceded, however, that they went home with her.
This is a clear example of the mother’s contravention of the orders in question. This finding was open on the mother’s own evidence. The absence of the overnight bag indicates that it was calculated. This is corroborated by the fact that the mother was there. The Court does not accept the proposition that the mother could not have got the children to school that day otherwise. There is no evidence before the Court, for example, of the children’s attendance at school being unsatisfactory. This contravention is established on the evidence.
HAS A REASONABLE EXCUSE BEEN ESTABLISHED?
As the contraventions have been established as indicated above, the Court must then determine whether the mother has demonstrated that she had a reasonable excuse for failing to comply with the orders.
The mother’s case based on reasonable excuse was poorly articulated, and was largely left to inference.
As referred to above, reasonable excuse is defined in s 70NAE of the Act. There is no suggestion that the mother did not understand the obligations imposed on her by the orders. The Court infers from the mother’s evidence that she believed on reasonable grounds that not allowing the children to spend time with their father was necessary to protect their health or safety. Moreover, that the period during which the time was suspended, was no longer than necessary to protect the health and safety of the children.
The mother’s evidence in this regard seems to be found in paragraphs 14, 15, 19–23, and possibly subsequent paragraphs of the mother’s affidavit filed 24 April 2020, as well as the reports of Ms H, a psychologist providing therapy to the children.
The Court accepts that in 2018 the children were diagnosed with ASD, a fact known to Judge Boyle when she made the orders on 31 August 2018. There was nothing new, as such, by virtue of the diagnosis, and this is something that Judge Boyle clearly took into account.
At paragraph 19 of the mother’s affidavit filed 24 April 2020 the mother concedes that the children had not had time with the father in accordance with the orders made by Judge Boyle, since early September 2019. She states: “I have formed the view that they are scared of [the father].” She goes on to make generalised assertions to the following effect: that the father and paternal grandmother do not appreciate the difficulties the children experience as a result of their ASD; that the father and paternal grandmother physically discipline the children; and that the children are aware of the animosity between the parents.
A reading of the reasons for judgment of Judge Boyle make it clear that her Honour was well aware of all of these asserted matters and nonetheless made the orders she did, believing them to be in the best interests of the children.

At paragraphs 20–23 of the mother’s affidavit filed 24 April 2020 she makes a series of concessions and further assertions particularly in relation to the children’s alleged fear of the father, and their distress in seeing the father, and refusal to see him between September 2019 and January 2020.
The mother seems to rely heavily on the evidence of Ms H. Ms H swore an affidavit filed 3 September 2020. Thereto she annexes a series of reports relating to the children’s treatment dated 8 February 2019, 4 February 2020, 27 February 2020 and two emails dated 6 March 2020 and 3 July 2020. The mother tendered Ms H’s report dated 19 October 2021 which became exhibit R11. Any notes made by Ms H for any period of time relevant to these proceedings, but for the report dated 4 February 2020, were not before the Court.
The utility of this evidence is twofold. The Court infers that its primary purpose was to support the mother’s case as to reasonable excuse. A secondary purpose was assisting the Court should it decide, whatever the outcome of the contravention proceedings, that a further order should be made in relation to the children.
Insofar as the primary purpose of this evidence was to support the mother’s case as to reasonable excuse, the evidence is of limited utility. The first alleged contravention was 21 September 2019, and the last was on 7 February 2020. The only report of Ms H that occurs during this chronological period is dated 4 February 2020. It does not assist the mother’s case in relation to reasonable excuse. It acknowledges that the mother has reported to Ms H that the children have experienced distress during changeovers and that Ms H’s sessions with the children “have seen an increase in emotional expression in which they have expressed feeling safe with Mum but not with Dad.” Ms H recommends a gradual six-step approach to changeovers and the children’s spend time arrangements with the father. Notably, Ms H recommends that should the children become anxious during changeovers, they are to remain on the step they are at. There is no recommendation that the mother should leave with the children upon their expression of anxiety.
Some further understanding of the potential significance of Ms H to the mother’s reasonable excuse defence became apparent after the Court granted the mother’s counsel leave to adduce evidence in chief before Ms H was cross-examined. Counsel was clearly aware of the limitations of the one report of Ms H that pertained to the relevant period. The evidence in chief was intended to reveal the oral advice that was given to the mother, presumably to establish that she had a reasonable excuse.
In evidence in chief Ms H referred to the concept of “park play” which she described as strategies “to support the boys’ emotional regulation and social interactions with their father”. At no stage, however, did Ms H give evidence about what exactly she advised the mother to do. Indeed, what she meant by “park play” only came out in questioning by myself and cross-examination by the father. Even this evidence did not establish to the Court that the mother’s actions and behaviour at the changeover venue discussed earlier in these reasons was as a consequence of advice that she had been given by Ms H.
In short, there was no evidence to support the mother’s contention that she had a reasonable excuse for not complying with the orders. There was probably ample evidence in Ms H’s reports for the period after the alleged contraventions, but that is irrelevant.
The Court finds, therefore, that the mother contravened the orders on the occasions identified in these reasons without reasonable excuse.
CONSEQUENCES OF FAILURE TO COMPLY WITH ORDERS
This is the second time that the mother has been found to have contravened parenting orders without reasonable excuse. The Court is satisfied that the provisions of s 70NFA apply, and that this is a contravention without reasonable excuse (more serious contravention). The powers of the Court are set out in s 70NFB.
All the father asks the Court to do is to require the mother to enter into a bond in accordance with s 70NFE. The father did not seek costs, or compensatory time.
It is clear from the father’s case that all he wants to do is to spend time with the children, and for the mother to facilitate this. It is also clear that he has concerns that the mother’s own anxieties are part of the problem which is preventing him from enjoying a resumed meaningful relationship with his children.
Section 70NFE provides that a bond may be for a specified period up to two years. The mother’s non-compliance with the orders is of concern to the Court. Her cross-examination revealed little insight into the importance of a relationship between the father and the children. The mother seemed quite selective in interpreting the advice provided by Ms H. The mother seems to be struggling to accept the findings made by Judge Boyle about the absence of risk of harm issues. The mother presents as externalising to the father all responsibility for the problem of the children not spending time with him, with very little insight into her own role in this predicament for the children. This is not the first time the mother has failed to comply with Court orders. In the circumstances the bond will be for the maximum period of two years.
There is no reason for the bond to be with either surety or security. This was not sought by the father, and is not considered necessary by the Court.
Conditions may be imposed on a person by a bond. Subsection 4 contains a non-exclusive list of such conditions. The most obvious condition is that the mother comply with orders in place from time to time. It was surprising to the Court that even though the mother was as well-represented as she was, she took no action to either vary or suspend the orders on an urgent interim basis. She simply declined to comply, and placed the onus on the father to do something by way of a contravention application. There was a sense in which the mother presented to the Court as being an anxious mother who would choose whether or not she complies with Court orders. That is unacceptable.
The mother must address her anxiety about the children spending time with their father. Having reviewed the evidence of Ms H, it is clear that she is not getting this assistance from this source, nor would it be appropriate in the circumstances where Ms H’s primary role is to support the children. A condition of the bond, will, therefore, be that the mother attend upon a family counsellor for the purposes of family counselling as defined in s 10B of the Act to deal with her anxiety about the children spending time with their father.
The Court asks the mother to understand that this is now the second time that she has been found by the Court to have contravened parenting orders without reasonable excuse. If she fails to enter into the bond on the conditions set out above it could have a number of implications that are adverse to her. The purpose of this bond is to facilitate her compliance with the orders. If she fails to enter into or to comply with the bond, her contraventions may be dealt with afresh. Fines may be imposed. Indeed, the cumulative impact of her contraventions may well point to much more serious penalties.
VARIATION OF PARENTING ORDERS UNDER S 70NBA
Perhaps the most complex part of this case was considering whether, and if so how, to vary the existing orders. The Court is empowered to do this under this section. This of course will be a further interim order only as the parents’ substantive applications remain to be decided. Any order must be based on the best interests of the children and in this regard s 60CC of the Act sets out a number of relevant matters.
The father proposed orders in accordance with the document that became exhibit A5. In summarising this document the Court makes the preliminary observation that the father had at least some insight into the formidable difficulties inherent in seeking to re-establish his time with his children. He proposed that for a period of two months there be supervised one hour contact through a supervised contact centre, each fortnight. Then for a period of two months the father have unsupervised time with the children for three hours, presumably each alternative weekend, at a public place such as E Playground. As an alternative he proposed that he spend time with the children at his home at Suburb Q. Another alternative was that the supervised contact centre be used to facilitate changeover only. By reference to the description of the resumption of contact referred to in his document, he seemed to propose that after four months, his time increase to eight hours, and after a further four months, move overnight from 9 am Saturday to 3 pm Sunday, each alternate weekend. It would progress thereafter and would include time on special days including children’s birthdays, Easter, St Nicholas Day, school holidays etc. He also proposed orders for communication by way of video calls three times weekly, and a number of specific orders relating to the mother.
The mother is clearly opposed to the father’s proposal. Doing the best the Court can, it seems from her counsel’s closing submissions, that she preferred that the parents and the children continue their engagement with Ms H with the therapeutic goal of supporting the children’s relationship with their father. Whilst this took place, the twice weekly Zoom communication between the children and the father would continue, and would increase to three times weekly during school holidays. A further report from Ms H would then precipitate a review of these arrangements.
The Court is very conscious of a number of matters. Firstly, that its delay in adjudicating on the contravention application has not assisted. Secondly, this is clearly a complex matter. It is a long-running case involving parents who have a very low level of trust of each other and children who have special needs. Thirdly, the mother is palpably anxious, and her anxiety is considered by this Court to be part of the reason why the children are not spending time with their father, but is unaddressed in any professional sense. Fourthly, both parents have palpable limitations of insight into how their own behaviour, actions and omissions are adversely affecting the children. Fifthly, a considerable amount of time in this litigation has been spent attempting family therapy without apparent success. Another approach is necessary, even if it is parallel to family therapy. Lastly, it is important to recognise that before the mother ceased the father’s time with the children in 2019, they were spending regular time with him including overnight time.
For all of these reasons, to make interim orders for more than a short period of time is problematic, particularly in the absence of the Independent Children’s Lawyer. However, equally problematic is not making any order at all. The Court therefore does propose to make interim orders based on the evidence before it, but on the basis that the Independent Children’s Lawyer, who was excused from participation in the contravention proceedings, becomes re-involved. This is clearly a matter that needs to be expedited to final hearing and consideration will need to be given to the most appropriate form of expert evidence.
In opposing the orders sought by the father, the mother relied heavily on the evidence of various experts adduced in her case.
Ms H’s evidence has already been referred to, in part. Her reports which post-date the alleged contraventions are nevertheless useful to the Court. A survey and summary of the reports is instructive. A number of preliminary observations can be made. There is no doubt that Ms H was acting in a therapeutic, as opposed to a forensic, capacity. The primary sources of the material which form the basis of her reports were either the children or the mother. She did not question, or seek corroboration, of any of the assertions made to her, nor was it her role. She does not appear to consider the mother’s anxiety in her assessment. She has therefore made assumptions as to matters that have not been established to any reasonable standard. This is not criticism, as the most important role that Ms H plays is as a therapist to the children.
The report dated 4 February 2020 explains that it was provided with the intention of supporting the children with their contact in their relationship with their father. She refers to recent sessions with the children which have seen an increase in emotional expression in which they have expressed feeling safe with their mother, but not their father. No details are provided in this regard. She makes detailed recommendations using what she describes as a “gradual exposure approach to visits”, that will help the boys to feel confident and in control. It is interesting to compare the detailed recommendations to what the mother actually did during the period covered by the contravention application. With respect to the mother, there is little resemblance, an observation that is only relevant insofar as the mother’s case sought to characterise her behaviour as being consistent with the advice given by Ms H.
In the report dated 27 February 2020, described as an updated version of the recommendations made on 4 February 2020, Ms H reports that she had met with both parents on 19 February 2020. She makes the observation that the children appeared to be manifesting separation anxiety from the mother. She restates a plan for the children based on what is described as a “gradual exposure system”. On the second page of the report Ms H makes the following comment in relation to the father’s time commencing from school: “This is a useful strategy to reduce the impact of separation anxiety, as there will be less emotional strain if [the mother] is not physically present.” The link between the children’s separation anxiety, and the mother’s presence, is specifically articulated. The Court has already found, of course, that the mother in effect thwarted the one and only attempt for the changeover to happen at school. The anxiety of the children is duly noted, but not that of the mother.
The email of 6 March 2020 from Ms H to the parents is based on the mother telling her that the children have not coped well with the previous recommendations that Ms H made. With great respect to Ms H she seems not to have considered the possibility that the mother was contributing to this failure. In any event, it is clear that the mother had reported increased anxiety levels which Ms H described as escalating to “emotional flooding”. In effect, Ms H was recommending that notwithstanding the Court orders, it was in the best interests of the children to cease contact until an agreed plan could be developed which did not cause emotional distress to the children. She states in the penultimate paragraph of her email: “I believe at this stage the only option is to look towards supervised contact for [the father] in which [the children] can have access to [the father] in an emotionally and physically safe space.” As will be seen, the mother was opposed to this.
There was a further email dated 3 July 2020. This one appears to have been addressed to the Independent Children’s Lawyer, as well as to the mother. She expresses her view that it was unethical for her to support the children having contact with their father when they are communicating to her that they do not feel comfortable within his presence. She refers to the children’s separation anxiety. She states: “it is noted the contact centres have been utilised in the past and this process appears to have contributed to the traumatic experiences and subsequent separation anxiety that the boys experience.” The only possible source of this information is the mother. She makes a number of recommendations for ongoing therapy and further the children’s gradual exposure to separation from their mother, and gradual exposure towards the “concept” of their father.
Ms H’s final report is dated 19 October 2021. She reports on the progress of the gradual exposure of the children to their father through video calls. This took place during the COVID-19 lockdown in 2021. The video calls initially started with the psychologist present whilst they spoke and interacted with their father. It clearly went well, as she proposed moving to video calls between the children and their father without her being present. She was of the view, however, that because of the high levels of anxiety in the children when they consider physical contact with their father, they are not ready to progress to this. She warned that premature unexpected contact is likely to trigger a trauma response of heightened anxiety and panic with the risk of absconding and physical aggression. In her closing summary she notes that recommendations of contact or supervision of face-to-face contact is beyond the scope of her report. Nonetheless she states:
Should the court deem supervised contact to be required, supervision of contact is to be provided by a qualified facilitator through an organisation such as [C Services] or [R Services]. It should be noted that the children have displayed trauma responses when exposed to the physical location of [C Services] in the past. If [C Services] is chosen as the point of contact, gradual exposure for the physical location may also be required.
She then refers to the potential benefits to the children of a support worker.
Once again, it is apparent that Ms H accepted what must only have come from the mother in relation to past difficulties associated with supervised contact at C Services. The father contends that there were no such problems but this can only reasonably mean that he was unaware of any problems.
When the parties were given the opportunity to provide evidence in relation to the difficulties experienced by the children at C Services, both parties provided further documents. The mother relied on paragraphs 90 and 108 of her affidavit filed 29 August 2016 as evidence of the children’s trauma response when having supervised contact at C Services. This affidavit describes experiences of the children in 2014, when the children were two years old and, indeed in nappies. The Court observes that the children were in a completely different developmental stage to where they are now.
The father relies on correspondence from the mother, and her solicitors in 2019 in which C Services is suggested by the mother as the changeover venue. This was suggested in correspondence dated 27 February, 7 October and 31 October 2019. Putting aside the obvious question of why the father did not take up the mother’s invitation in 2019 as a way of avoiding unsuccessful contact as has been found in these reasons for judgment, it is hard to reconcile the mother’s stated concerns with her willingness to use the centre. If her correspondence is taken literally, and her contentions accepted at face value, she was quite prepared to re-traumatise the boys in 2019, but now says that in 2022 it is not appropriate to do so. In any event, all of this material was before Judge Boyle, who made the orders she did.
There is no evidence to support the mother’s concerns about the inappropriateness of the use of a supervised contact centre. This issue reflects her anxiety. It also points to some of the shortcomings in Ms H’s evidence as she has unquestioningly accepted the mother’s contention. From the Court’s perspective, the use of C Services, or some other form of professional supervised contact service is a viable option for the children.
The mother also relied on the evidence of Dr M, the children’s paediatrician who provided an affidavit filed 29 April 2021. This evidence merely confirms the common understanding in this case. Both children suffer from ASD and require support. There is no accompanying intellectual disability. The children are noted to suffer from issues including separation anxiety which is noted as “improving”. There is also reference to family psycho-social risk factors which are not explained. The major concerns relate to ongoing behavioural and concentration difficulties at school and anxiety. The affidavit annexes a range of supporting reports, including from Ms H. She acknowledges what both parties and the Court already acknowledge, and that is that particular complexity is created by the confluence of the neurodevelopmental disorders experienced by the children, their past trauma, and anxiety regarding time with their father. Again, the Court observes, what is unacknowledged is the potential impact of the mother’s own anxiety.
INTERIM ORDERS IN THE BEST INTERESTS OF THE CHILDREN

Neither the proposal advanced by the father nor the mother is considered by the Court to be in the best interests of the children. The father asks for too much, too quickly, and the mother in effect proposes no change to an arrangement which the Court considers to be inadequate. The polarity in the positions adopted by each parent provides an insight into the world in which the children live and what it must be like for them to move from the physical and psychological space of the mother’s home, to the physical and psychological space of the father’s care.
Ms H, despite the limitations of her reports, is nonetheless best placed to provide some insight into what is best for the children in terms of their relationship with the father. She suggests supervised time at a professional centre, or using a professional provider. The Court is satisfied that this adequately balances the need for the children to have a meaningful relationship with the father, whilst protecting them from any risk of physical or emotional harm whilst being in his care as well as being an arrangement that can cater to the special needs of the children. The Court is satisfied that it will have objective, professional reporting of what occurs, particularly in terms of the interaction between the father and the children. There are still risks, of course, the foremost of which is that as a result of the mother transmitting her anxiety to the children, and failing to adequately prepare them, the transition from her care, to the care of the professional supervisors will be difficult if not traumatic for the children. The mother already has clear guidance from Ms H about what she should do, albeit given in the slightly different context. For example, Ms H states that all visits are to be planned and explained to the children in a positive manner. A clear expectation for when the visit starts and finishes must be established and communicated. The Court adds that the mother must not only be herself committed to compliance with the orders, but communicate to the children both through her words and actions that she unhesitatingly expects them to go. The Court suspects that the more the mother addresses her own underlying anxieties, the easier it will be for her, and the children.
The order the Court will make, pending further order, is that the parents forthwith do all things necessary to arrange for the children to spend supervised time with the father at C Services in Suburb D. Pending the availability of spaces for the children, the parents are to forthwith do all things necessary to arrange for the children to spend supervised time with their father on a fully paid basis at C Services in Suburb D, or using the services of any professional supervised contact service that has experience in supervising children with ASD. The cost of supervised contact is to be shared equally between the parents. To the extent necessary, the orders made by Judge Boyle for the father to spend time with the children are suspended in order to give effect to the present orders. The parents and the Independent Children’s Lawyer will have leave to relist the matter before me on seven days’ notice in relation to any issues about implementation of these orders. The matter will come back before me in three months’ time for the purposes of reviewing the orders made, and to facilitate the involvement of the Independent Children’s Lawyer as well as to consider progressing this matter to an expedited final hearing.

I certify that the preceding one hundred and twenty-five (125) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli.
Associate:
Dated:       27 May 2022
SCHEDULE A
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT COURT OF  FILE NO: (P)SYC7594/2013
AUSTRALIA
BETWEEN:
  Mr McDonald and Ms B McDonald      (Applicant)
AND:
  Ms McDonald  (Respondent)
BEFORE:  JUDGE BOYLE

DATE: 31 August 2018
MADE AT: SYDNEY
UPON APPLICATION MADE TO THE COURT
THE COURT ORDERS ON A FINAL BASIS THAT:
Parental responsibility
(1)That the mother have sole parental responsibility for X born in 2012 and Y also born in 2012 (“the children”).
(2)That in the event that the mother intends to make a major decision relating to parental responsibility:
(a)she shall consult with the father with regard to any such issue in writing and the father shall reply in writing within 14 days;
(b)each party shall make a genuine effort to come to an agreement about any such issue; and
(c)if no agreement is reached between the parties, the mother may make a decision.

Time
(3)That the children live with the mother.
(4)That the children spend time with the father during school terms as agreed between the parties in writing and failing agreement:
(a)From the date of these Orders to the conclusion of Term 4 2018:
(i)               Each alternate Saturday from 8:45am to 4:45pm;
(ii)              Each alternate Sunday from 8:45am to 4:45pm;
(b)At the conclusion Term 4 2018 from 8.45am on 25 December to 2.00pm on 26 December 2018 and each alternate weekend thereafter.
(c)During the school holiday periods at the conclusion of Term 1, Term 2 and Term 3 2019:
(i)               From after school on Friday to 4.45pm Sunday, on the second weekend of each of the Term 1, 2 and 3 school holiday periods.
(d)At the conclusion of Term 4, 2019:
(i)For three block periods of three nights as agreed in writing, and failing agreement from the third and fifth weeks from 4.45pm Friday to 4.45pm Monday and from 8.45am 24 December 2019 to 2.00pm on 25 December 2019.
(e)From the commencement of Term 1, 2020:
(i)               From after school on Friday to before school on Monday on each alternate weekend.
(f)During the school holiday periods at the conclusion of Term 1, Term 2, and Term 3 2020;
(i)               For a block period of four nights as agreed in writing, and failing agreement from after school on the last day of Term and concluding at 4.45pm on the fourth day of the school holidays.
(a)During the school holiday period at the conclusion Term 4 2020 and thereafter:
(i)               For two block periods of five nights as agreed in writing, and failing agreement and failing agreement the third and fifth weeks from 4.45pm Friday to 4.45pm Wednesday;
(i)               In even numbered years from 2.00pm 25 December to 30 December 2020 at 4.45pm;
(ii)              In odd numbered years from 2.00pm 20 December to 25 December at 4.45pm.
(b)During the school holiday periods at the conclusion of Term 1, Term 2, and Term 3 2021 and each school holiday period thereafter;
(i)               For a block period of five nights as agreed in writing, and failing agreement from after school on the last day of Term and concluding at 4.45pm on the sixth day of the school holidays.

(5)That for the purpose of these orders school holidays are in accordance with the gazetted school calendar for the school the children attend, and shall commence on the last day of school term and conclude on the last day of holidays, not including any pupil free day at the end of the holidays.
(6)That the children spend time with the parties on occasions of special significance as agreed between the parties in writing and failing agreement:
(a)In the event that the children are not otherwise with the father pursuant to these Orders, the children shall spend time with the father:
(i)               From 9.00am to 5.00pm on Father’s Day;
(ii)              From 9.00am to 5.00pm on Orthodox Easter Sunday and St Nicholas’s Day as celebrated by the Orthodox Church;
(iii)            On the children’s and father’s birthdays, from after school until 6.30pm if the birthday falls on a school day;
(iv)             On the children’s and father’s birthdays, from 8.45am until 11.45am if the birthday falls on a weekend or non-school day when the children are not already spending time with the father.
(b)In the event that the children are not otherwise with the mother pursuant to these Orders, the children shall spend time with the mother:
(i)From 9.00am to 5.00pm on Mother’s day;
(ii)On the children’s and mother’s birthdays, from 8.45am until 11.45am if the birthday falls on a weekend or non-school day when the children are otherwise with the father.

(7)That the paternal grandmother may be present on any occasion the father spends time as agreed between father and paternal grandmother.
(8)That the father and paternal grandmother may attend any school events to which family are ordinarily invited.
(9)That within 14 days of the date of these Orders the father shall do all acts and things as may be necessary to engage Ms P, Occupational Therapist (“OT”), and in the event that Ms P is not available, such other OT as recommended by the children’s treating OT, namely N Clinic (“the children’s treating OT”).
(10)For the purposes of Order 9, Ms P, or such other OT as recommended by the children’s treating OT, shall be present for a minimum of one hour at the father’s home on not less than 5 occasions, pursuant to Order 4(a) herein and the father shall be responsible for the costs of the OT.

Changeover
(11)To facilitate the father’s time with the children as provided for in these Orders:
(a)The parties shall do all things necessary to arrange with C Services Suburb D (“C Services”) for changeover to occur at their contact centre;
(b)The mother shall deliver the children to C Services at the commencement of the father’s time and the father shall return the children to C Services at the conclusion of his time;
(c)In the event that C Services is not available changeover shall take place at E Playground.
(d)That should time between the father and children commence or conclude before or after school, the father shall collect or return the children from school.

(12)Each party is to pay for half of the costs of the changeover service at C Services Suburb D, as and when the costs fall due.

Non-denigration
(13)Neither party shall speak critically or in a derogatory manner about the other parent or members of the other parent’s family in the children’s presence, or within their hearing, or permit any other person to do so.

Restraint on physical discipline
(14)Neither parent shall use physical means to discipline the children or permit any other person to do so.

Communication
(15)Each parent shall keep the other informed of his/her current residential address, and telephone number and email address and give the other parent 14 days written notice of an intended change of any of those details.
(16)The mother shall authorise all treating therapists, medical and/or allied health professionals to communicate directly with the father about the children’s treatment, health and progress.
(17)The mother advise the father by email of any significant medical difficulties for the children or treatment required and the names and addresses of treating therapists for the children.
(18)That each parent notify the other as soon as practicable in the event that either of the children suffers a major illness or accident, or is hospitalised, whilst in that parent’s care.
(19)That both parents shall do all acts and things as required to authorise each other to obtain from the children’s school information in relation to their schooling, including a copy of their school reports, general school newsletters, information regarding school functions and events, and school photograph order forms.

Courses
(20)That the parties each enrol in and complete a parenting course through Triple P Parenting Programs, or ASPECT. Such course to be completed within twelve months and they shall each provide the other with a certificate of completion at the successful conclusion of the course.

Costs of Dr F’s report
(21)That within two calendar months of the date of these Orders, the father pay to the mother the sum of $3,025 being half of the costs of Dr F’s supplementary report dated 23 July 2015.

Obligations
(22)Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

File number(s):	SYC 7594 of 2013
Judgment of:	ALTOBELLI J
Date of judgment:	27 May 2022
Catchwords:	FAMILY LAW – CONTRAVENTION – Application by the father alleging six contraventions – Where complexity arises from the children being diagnosed with Autism Spectrum Disorder – Where Court is satisfied on the balance of probabilities that five of the contraventions are established – Finding that the mother hindered and prevented the operation of the orders pursuant to s 65N of the Family Law Act 1975 (Cth) – Where the mother failed to establish reasonable excuse – Where the mother is sanctioned under Subdivision F of Division 13A Part VII because the mother has previously been sanctioned – Where a bond of two years is imposed upon the mother – Where the bond requires the mother to address her anxiety concerning spend time arrangements with the father – Where parties seek variation of the operative orders pursuant to s 70NBA – Where Court varies the operative interim orders for supervised time to facilitate the spend time arrangements between the father and the children.
Legislation:	Family Law Act 1975 (Cth) ss 10B, 60CC, 65N, 70NAC, 70NAE, 70NAF, 70NBA, 70NFA, 70NFB, 70NFE Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth)
Cases cited:	Childers & Lee (2008) FLC 93–356; [2008] FamCAFC 5 Mitty & Mitty [2012] FamCA 329 Seaward & MacDuff [2011] FamCA 1041 Stevenson v Hughes (1993) FLC 92–363; [1993] FamCA 14 Taikato v the Queen (1996) 186 CLR 454; [1996] HCA 28
Division:	Division 1 First Instance
Number of paragraphs:	125
Date of last submission/s:	3 December 2021
Date of hearing:	6, 24 May 2021, 12, 22, 26 November 2021
Place:	Sydney
The Applicant:	Litigant in person
Counsel for the Respondent:	Ms Kennedy
Solicitor for the Respondent:	Broun Abrahams Burreket

SYC 7594 of 2013
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS MCDONALD Applicant
AND:	MR MCDONALD Respondent

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	27 MAY 2022