Midal & Duncan
[2025] FedCFamC2F 302
•10 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Midal & Duncan [2025] FedCFamC2F 302
File number(s): PAC 6682 of 2020 Judgment of: JUDGE OBRADOVIC Date of judgment: 10 March 2025 Catchwords: FAMILY LAW – CONTRAVENTION –Whether baptism is an exercise of parental responsibility – Enrolment of child into daycare and school – Unilateral decision making – Contraventions straddle 2023 amendments – Contraventions established – No reasonable excuse Legislation: Family Law Act 1975 (Cth) Pt VII Div 13A, ss 70NAC, 70NAD, 70NADA, 70NAE
Family Law Amendment Act 2023 (Cth)
Cases cited: Childers & Leslie [2008] FamCAFC 5
English & English [1986] FamCA 69
Fauna Holdings v Mitchell [2000] FamCA 313
Hatfield & Rivas [2024] FedCFamC1A 202
Hay & Hay [1998] FamCA 95
Lindsey & Lindsey [1995] FamCA 117
Nieuwstraten & Nieuwstraten [1987] FamCA 11
Reilly & Reilly [1995] FamCA 152
Division: Division 2 Family Law Number of paragraphs: 123 Date of hearing: 18 November 2024 & 3 December 2024 Place: Parramatta Counsel for the Applicant: Ms Lawson Solicitor for the Applicant: Cheryl Orr Family Law Counsel for the Respondent: Mr Livingstone Solicitor for the Respondent: Blanchfield Nicholls ORDERS
PAC 6682 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MIDAL
Applicant
AND: MS DUNCAN
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
10 MARCH 2025
THE COURT DECLARES THAT:
1.The Respondent, without reasonable excuse, contravened the orders of the Federal Circuit and Family Court of Australia (Division 2) made on 7 October 2021 in that:
(a)The Respondent refused to inform the Applicant about the decision to unenroll the child from B Daycare and to enrol the child at C Daycare on 23 January 2024 in contravention of Order 3.1 of the Orders made on 7 October 2021.
(b)The respondent refused to consult with the Applicant regarding the decision to unenroll the child from B Daycare and to enrol the child at C Daycare on 23 January 2024 in contravention of Order 3.2 of the Orders made on 7 October 2021.
(c)The respondent refused to make a genuine effort to come to a joint decision to unenroll the child from B Daycare and to enrol the child at C Daycare on 23 January 2024 in contravention of Order 3.3 of the Orders made on 7 October 2021.
(d)The Respondent enrolled the child at D School on 4 July 2024 in contravention of Order 2.1 of the Orders made on 7 October 2021.
(e)The Respondent refused to inform the Applicant about the decision to be made regarding the child’s enrolment at D School on 4 July 2024 in contravention of Order 3.1 of the Orders made on 7 October 2021.
(f)The Respondent refused to consult with the Applicant regarding the child’s enrolment at D School on 4 July 2024 in contravention of Order 3.2 of the Orders made on 7 October 2021.
(g)The respondent refused to make a genuine effort to come to a joint decision regarding the child’s enrolment at D School on 4 July 2024 in contravention of Order 3.3 of the Orders made on 7 October 2021.
(h)The Respondent baptised the child at E Church in Suburb F in late 2022 in contravention of Order 2.2 of the Orders made on 7 October 2021.
(i)The Respondent refused to inform the Applicant about the decision to be made regarding the child’s baptism at E Church in Suburb F in late 2022 in contravention of Order 3.1 of the Orders made on 7 October 2021.
(j)The Respondent refused to consult with the Applicant regarding the child’s baptism at E Church in Suburb F in late 2022 in contravention of Order 3.2 of the Orders made on 7 October 2021.
(k)The Respondent refused to make a genuine effort to come to a joint decision regarding the child’s baptism at E Church in Suburb F in late 2022 in contravention of Order 3.3 of the Orders made on 7 October 2021.
THE COURT ORDERS THAT:
1.The proceedings are listed for directions at 9:30am on 18 March 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These are the Reasons for Judgment in respect of the Application – Contravention filed on 17 October 2024. The applicant, Mr Midal (‘applicant’), alleged that the respondent, Ms Duncan (‘respondent’), contravened the final orders dated 7 October 2021 (‘Final Orders’) in respect of the child, X (‘X’), born in 2019, who is now 5 years old.
The Application – Contravention contains 11 counts. Counts 8, 9, 10 and 11 allege a contravention on 20 November 2022, Counts 1, 2 and 3 allege a contravention on 23 January 2024, and Counts 4, 5, 6 and 7 allege a contravention on 4 July 2024. The respondent has entered a plea of not guilty in respect of each of the alleged contraventions.
In a nutshell, the Application – Contravention alleges that the respondent has contravened the orders for parental responsibility and the orders for consultation in respect of exercising parental responsibility, by unenrolling and enrolling X into daycare, by having her baptised, and by enrolling her in a particular primary school.
The Family Law Amendment Act 2023 (Cth) commenced 6 May 2024. The amending act included amendments to Div 13A which governs proceedings relating to contraventions of child-related matters.
Absent express legislative intention for the new provisions of Pt VII, Div 13A of the Family Law Act 1975 (Cth) to apply to contraventions alleged to have occurred whilst the old Pt VII, Div 13A was operable, the old provisions must still apply to such historic contraventions.[1]
[1] Hatfield & Rivas [2024] FedCFamC1A 202 at [72].
As such, the Court must apply both the provisions relating to orders in proceedings for contraventions of child-related matters as they existed prior to the 2023 amendments and the provisions of the Act as they are now.
The Court is presently only dealing with the issue of liability.
DOCUMENTS RELIED UPON
The applicant relied on the following documents in support of his application:
(a)Application – Contravention filed 17 October 2024; and
(b)Affidavit of the applicant filed 17 October 2024.
The respondent initially exercised her right to silence, but then did give evidence.
Exhibits
The exhibits tendered in the proceedings were:
·Exhibit 1 being Annexures A through to M inclusive of the applicant’s affidavit filed 17 October 2024.
·Exhibit 2 being a Statement of Evidence of the respondent.
·Exhibit 3 being a Letter of Offer for D School dated 7 June 2024.
·Exhibit 4 being an Offer of Enrolment - Acceptance Form signed 4 July 2024.
·Exhibit 5 being an email from the applicant to Ms G being a forward message from H School to the respondent dated 21 October 2024.
THE ALLEGATIONS AND FINDINGS
The applicant alleges contraventions of Order 2.2, Order 3.1, Order 3.2 and Order 3.3 of the Final Orders across all three topics: the baptism, daycare unenrolment and enrolment, and primary school enrolment.
The alleged contraventions will be dealt with by being grouped together in relation to their respective topics. This will have the added benefit of ensuring that the events are dealt with in chronological order.
The Final Orders
So as to be able to determine whether the alleged contravention is proven, regard must first be had to the order which is said to have been contravened. It is therefore useful to set out in full the relevant orders which the applicant alleges the respondent has contravened.
Order 2.2 of the Final Orders reads:
The Applicant Father, [MR MIDAL] (“the Father”), and the Respondent Mother, [MS DUNCAN] (“the Mother”) (collectively referred to as “the parents”) have equal shared parental responsibility for the major long term issues with respect to the child, namely [X] born [in] 2019 (hereinafter referred to as “the child”) including but not limited to:
2.1 the child’s education (both current and future);
2.2the child’s religion and cultural upbringing;
…
Order 3 of the Final orders reads:
That the Mother and the Father shall consult with each other about decisions to be made in the exercise of their equal shared parental responsibility, as follows:
3.2they shall inform the other parent about the decision to be made;
3.2 they shall consult with each other on terms that they agree; and
3.3 they shall make a genuine effort to come to a joint decision.
Overall
The Final Orders were made by consent on 7 October 2021.
The respondent carefully read and understood the proposed Final Orders before they were made.[2]
[2] T:66.34-38.
The respondent understood that the Final Orders required the parents to consult with each other before making decisions for major long-term issues with respect to X.
The respondent understood that having a child baptised was an exercise in parental responsibility.
The respondent understood that she had an obligation to consult with the applicant in respect of X’s education, including her enrolment at daycare.
The Baptism
Counts 8, 9, 10, and 11 concern X’s baptism. It is useful to set out the alleged contraventions in full.
Count 8
That the respondent, without reasonable excuse, baptised the child at [E Church] in [Suburb F] [in late] 2022 in contravention of Order 2.2 of the Orders of Judge Dunkley dated 7 October 2021.
Count 9
That the respondent, without reasonable excuse, refused to inform the applicant about the decision to be made regarding the child’s baptism at [E Church] in [Suburb F] [in late] 2022 in contravention of Order 3.1 of the Orders of Judge Dunkley dated 7 October 2021.
Count 10
That the respondent, without reasonable excuse, refused to consult with the applicant regarding the child’s baptism at [E Church] in [Suburb F] [in late] 2022 in contravention of Order 3.2 of the Orders of Judge Dunkley dated 7 October 2021.
Count 11
That the respondent, without reasonable excuse, refused to make a genuine effort to come to a joint decision regarding the child baptism at [E Church] in [Suburb F] [in late] 2022 in contravention of Order 3.3 of the Orders of Judge Dunkley dated 7 October 2021.
In late 2022, after making enquiries about a possible place for X at D School, the respondent understood that X was required to be baptised for enrolment at that school. X was thereafter baptised at E Church, Suburb F. This occurred in late 2022.
On the enrolment application the applicant lodged with D School in March 2023, X’s religion is noted as ‘Catholic-Western (Roman)’. The application form was completed by the respondent.
The respondent organised the baptism, she decided who to invite, and she chose X’s godparents.[3]
[3] T:67.
The respondent did not send out any invitations, she did not tell the applicant either before or after the baptism that the baptism was planned and had occurred. The only people in attendance were the respondent, the maternal grandfather, X, and her godparents. Presumably though, so was the priest who carried out the sacrament.
The respondent did not tell the applicant about the baptism at all, either pre or post the fact. This is despite the parties at the relevant time having each other’s contact details, and indeed communicating in respect of other matters.
In September 2024, after being told by X that she would be attending D School, the applicant contacted the school and requested information in respect of X’s enrolment. He was provided with a copy of the enrolment form from the school. He read on that form that X had been baptised in late 2022, at E Church, Suburb F. This was how he learnt that X had been baptised almost 2 years prior.
The applicant refers to himself as ‘Christian Orthodox’ in his affidavit and as a Christian in his oral evidence. The evidence refers to the respondent as ‘Catholic-Western (Roman)’, and as a Catholic in her oral evidence.
The parents are both Christian. They belong to the same religion,[4] but different denominations of it.
[4] These are matters the Court takes judicial notice of. Currently, the world has three major religions, all in the monotheist tradition, namely Judaism, Christianity and Islam. The Court corrects what was said at T:56.36, in reference to the words ‘religion’ and ‘faith’.
The decision about X’s baptism is a decision about her religion, it is a decision made in the exercise of parental responsibility.
The applicant’s background is Country J, while the respondent’s background is Country K. Both the applicant and the respondent are Australian. These matters form part of the child’s cultural upbringing.
Furthermore, the respondent in carefully considering the proposed Final Orders before they were made, came to the understanding that whether or not a child is baptised is considered to be a part of a child’s religion. She thought it was a religious milestone. She understood that this was an exercise in parental responsibility.
Notwithstanding such understanding, namely that in having X baptised, the respondent was exercising parental responsibility, she made the intentional decision not to consult with the applicant, not to inform him of the baptism, and she made the decision, to have X baptised, unilaterally, rather than jointly with the applicant.
Daycare Unenrolment and Enrolment
Counts 1, 2, and 3 concern X’s unenrolment and enrolment into daycare. It is useful to set out the alleged contraventions in full.
Count 1
That the respondent, without reasonable excuse, refused to inform the applicant about the decision to unenroll the child from [B] Daycare and to enrol the child at [C Daycare] on 23 January 2024 in contravention of Order 3.1 of the Orders of Judge Dunkley dated 7 October 2021.
Count 2
That the respondent, without reasonable excuse, refused to consult with the applicant regarding the decision to unenroll the child from [B] Daycare and to enrol the child at [C Daycare] on 23 January 2024 in contravention of Order 3.2 of the Orders of Judge Dunkley dated 7 October 2021.
Count 3
That the respondent, without reasonable excuse, refused to make a genuine effort to come to a joint decision to unenroll the child from [B] Daycare and to enrol the child at [C Daycare] on 23 January 2024 in contravention of Order 3.3 of the Orders of Judge Dunkley dated 7 October 2021.
Following an accident resulting in burns to both of her hands that X suffered at a daycare centre she had been attending in late 2020, X was enrolled into B Daycare at Suburb L.
During 2021, 2022, and 2023, the applicant had raised with the respondent some concerns about aspects of care that B Daycare provided to X. The parents had a number of conversations about these matters.
In late 2023, X suffered a laceration to her temple while at daycare. The cut was close to her eye, and the respondent who was notified by the centre of the accident, took X to Emergency at M Hospital, and the wound was treated and the cut was glued. The respondent called the applicant that afternoon to notify him.
The following day, the director from the daycare centre telephone the respondent and told her that the applicant had called, and that he expressed his unhappiness that an ambulance was not called and reiterated that both he and the respondent were extremely protective of X given the incident at her previous daycare.
The applicant asked the centre for CCTV footage following X’s injury. The applicant was of the view that the centre had on occasion been negligent and dishonest.
The respondent did not speak to the applicant after the phone call with the director from the daycare.
The respondent’s evidence, however, was that she ‘felt pressured’ by the applicant ‘given his constant criticism of the centre and asking … [her] whether … [she] had spoken to the centre and done anything about their lack of care’. She says that she understood from her discussions with the applicant that he did not think the centre was suitable. However, there is no evidence that she ever spoke to the applicant about such understanding, to confirm whether or not it was appropriately held.
In late 2023, the respondent spoke to a parent of another child who recommended a different daycare centre. The respondent then went onto that daycare’s website to research the centre, and spoke with the director. She then formed the view that it was an appropriate daycare centre for X to attend. She did not inform the applicant at all about the recommendation she received, her research, or her decision. She did not ask the applicant for his input nor seek to make a decision jointly with him about X’s enrolment into a daycare different to B Daycare.
On 18 January 2024, the respondent sent the applicant a message advising that she had enrolled X at C Daycare. By this stage, the respondent had already made the decision and acted upon it to have X enrolled into the new daycare. Her message was not an invitation to discuss whether X should be enrolled in the new daycare.
The applicant replied that same day, inter alia¸ that ‘it was not right or appropriate to make decisions without consultation of the other parent and this has happened in this instance’.
There is no evidence of any further discussions or communications between the parents about the issue after 18 January 2024, albeit there is evidence in the respondent’s case about a FaceTime call on 18 January 2024, following the earlier message.
The respondent does not put before the Court any evidence of notifying the applicant of her intention or decision to take X out of B Daycare, prior to withdrawing X from that daycare. Indeed, there is no evidence before the Court as to how and when B Daycare was notified that X would no longer be attending.
The respondent conceded that she did not send the applicant any text or email about the fact that X was no longer enrolled at B Daycare.
The respondent’s oral evidence, at its highest, is that she notified the applicant on 18 January 2024 on a FaceTime call that X was taken out of B Daycare. Her evidence is otherwise that she told the applicant during that FaceTime call that X’s first day at C Daycare would be 24 January 2024.
The FaceTime call (the contents of which the applicant disputes) was after the respondent had enrolled X into C Daycare, as she already had a start date, and after the respondent had taken X out of B Daycare. Even accepting that the conversation occurred, it was at best a notification of the decisions made. This is despite the parties at the relevant time having each other’s contact details, and indeed communicating in respect of other matters.
The respondent conceded, and rightly so, that her message to the applicant on 18 January 2024 did not notify him of X’s start date at the new centre.
The respondent did not include the applicant’s details in the enrolment form she lodged for X with C Daycare.
X’s first day at C Daycare was on 24 January 2024.
On 6 March 2024, the applicant telephoned B Daycare to query why he had not received any updates. He spoke to the director, and was advised that X no longer attended the centre. Later that day, the applicant received an email from the daycare confirming that X’s last day was 23 January 2024. It is unlikely that the applicant would have sought such information had he been told by the respondent of the details of the start date at C Daycare as asserted by the respondent as having occurred during the FaceTime call on 18 January 2024.
The applicant then emailed C Daycare on 15 April 2024 and 3 October 2024 to request a copy of X’s enrolment documents, which was refused.
Primary School Enrolment
Counts 4, 5, 6, and 7 concern X’s enrolment into primary school. It is useful to set out the alleged contraventions in full.
Count 4
That the respondent, without reasonable excuse, enrolled the child at [D School] on 4 July 2024 in contravention of Order 2.1 of the Orders of Judge Dunkley dated 7 October 2021.
Count 5
That the respondent, without reasonable excuse, refused to inform the applicant about the decision to be made regarding the child’s enrolment at [D School] on 4 July 2024 in contravention of Order 3.1 of the Orders of Judge Dunkley dated 7 October 2021.
Count 6
That the respondent, without reasonable excuse, refused to consult with the applicant regarding the child’s enrolment at [D School] on 4 July 2024 in contravention of Order 3.2 of the Orders of Judge Dunkley dated 7 October 2021.
Count 7
That the respondent, without reasonable excuse, refused to make a genuine effort to come to a joint decision regarding the child’s enrolment at [D School] on 4 July 2024 in contravention of Order 3.3 of the Orders of Judge Dunkley dated 7 October 2021.
In October 2021, the respondent was doing some research about potential primary schools for X.
The respondent says that she mentioned to the applicant in a phone conversation on 1 October 2021, that she was researching D School in Suburb N. She further says that the applicant ‘ignored [her]… proposal’. The applicant does not agree to having such a conversation with the respondent.
Even if such a conversation had occurred on 1 October 2021, it pre-dated the Final Orders. At most, it was a notification by the respondent of what she was considering at the time. No discussion progressed.
In late 2022, the respondent made an enquiry with D School about possibly enrolling X into the school. As noted at [22], the applicant came to an understanding, following these enquiries, that X was ‘required to be baptised for the enrolment’. The respondent then had X baptised in late 2022.
Following the making of the Final Orders, the respondent did not have a single conversation or communication with the applicant about her proposal to enrol X into D School.
On 7 March 2023, the respondent attended a tour of the school. She had a conversation with a teacher, and she informed the principal of the incidents at X’s daycare.
In March 2023, the respondent submitted an application for enrolment at D School.
The respondent did not send to the applicant a copy of the enrolment form. She did not think that it was important for the applicant to have it. She did not inform the applicant that she had made the application for enrolment.
The respondent did not note the applicant’s details on the enrolment form at all, not under the part headed ‘Family and relationships’, nor under the part headed ‘Emergency Contact’, albeit a copy of the Final Orders was attached. The application form noted that X ‘see’s [sic] her Father every second weekend. [X’s] Father is not to collect [X] from school grounds, all change overs occur at our respective residences’. The respondent also noted on the application form that the preferred name for X was ‘Duncan-Midal’ which is not her legal name, nor a name that she is known as.
On 9 February 2024, X and the respondent attended an interview at D School. The respondent spoke to the principal, and X was assessed for school readiness. The respondent did not tell the applicant about the interview or the assessment.
On 7 June 2024, the respondent received an email offering X a place at D School and which attached a letter of offer. The respondent read the offer on or around the day she received it. She did not tell the applicant about the letter of offer.
On 12 June 2024, the applicant sent a message to the respondent asking for her thoughts on the arrangements for X commencing kindergarten the following year. In his message, the applicant specifically made reference to the Final Orders, and sought to discuss with the respondent X’s education, school selection, and the commencement of her education.
On 17 June 2024, the respondent replied saying that ‘it would be most appropriate to address this matter through mediation’. Once again, despite the perfect opportunity to do so, the respondent did not mention to the applicant her proposal for X to attend D School and the steps she had taken to date to secure her a spot at the school.
On 4 July 2024, the respondent signed the Offer of Enrolment – Acceptance Form for X to attend D School. On the form the respondent amended the declaration such that ‘I/we’ became ‘I/
we’, and ‘my/our’ became ‘my/our’.On 13 September 2024, X told the applicant that that she would be attending D School in 2025.
The parties had a mediation on 20 September 2024.
On 20 September 2024, the respondent telephoned D School to request information and was told X had enrolled and been accepted on 4 July 2024.
There is no evidence that the respondent, at any point in time, disclosed to the applicant that she had X baptised so that she could attend a Catholic school, that she had sent an application for enrolment to D School, that the respondent had attended a tour of the school, that X had attended an interview and been assessed, or that the respondent had accepted the offer of enrolment. This is despite the parties at the relevant time having each other’s contact details, and indeed communicating in respect of other matters.
On 8 October 2024, the applicant submitted an online enrolment application for X to attend H School and sent the respondent a text message and email in respect of this. The applicant did this after submitting the enrolment application.
On 21 October 2024, the applicant received an email from H School notifying him that the school could not proceed with X’s enrolment as they did not have consent from the respondent.
The fact of the applicant submitting an enrolment application for X at H School is not a relevant matter in terms of the respondent’s culpability of the relevant counts.
It was conceded on behalf of the respondent that an application to D School had been made and that X had been accepted by the school.[5]
[5] T:62.12-15.
It was also conceded on behalf of the respondent, that if the parents are unable to agree to a position in respect of X’s enrolment into primary school, the default position is that she would attend the local public school.[6] X must commence school year she turns 6, which is in 2025.
DETERMINATION
[6] T:63.42-43.
Relevant Legal Principles Pre-2023 Amendments
The alleged contraventions in respect of the baptism and the unenrolment and enrolment at daycare, namely Counts 1, 2, 3, 8, 9, 10 and 11, all pre-date the 2023 legislative amendments. Therefore, the Court’s determination of those counts is subject to the legislative provisions as they existed at that time.
The relevant legislative provisions dealing with contraventions of parenting orders are found in Pt VII Div 13A of the Act, as it stood prior to the 2023 amendments. At the relevant time, Div 13A was organised in a progression from lesser to greater seriousness, as explained in s 70NAA. In summary it deals in turn with:
(a)Preliminary matters, including definitions and a provision relating to the standard of proof (s 70NAF): subdivision A;
(b)Varying parenting orders, which can be regarded as the least punitive response to the problem: subdivision B;
(c)Contravention alleged but not established - provision for costs orders against the person bringing the proceedings: subdivision C;
(d)Contravention established, but a reasonable excuse - the court can make orders for compensation for time lost, and costs orders: subdivision D;
(e)Less serious contraventions, and no reasonable excuse - the court has various powers, for example orders for compensation for time lost, orders for post-separation parenting programs, bonds, and costs: subdivision E; and
(f)More serious contraventions, and no reasonable excuse - the court has more punitive powers, including fines and imprisonment: subdivision F.
The meaning of ‘contravened an order’ was set out in s 70NAC of the Act:
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;
…
The meaning of ‘reasonable excuse’ was found in s 70NAE of the Act. Relevantly s 70NAE(2) provided as follows:
(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.
This is an objective test, albeit one that might include subjective aspects.[7] However, the clear meaning of s 70NAE(1) was that the various sub-sections mentioned therein are not the only circumstances in which a reasonable excuse may be found.
[7] Childers & Leslie [2008] FamCAFC 5 at [23].
The obligation of both parties is to make reasonable efforts to comply with the orders.
The onus of proof was on the applicant and the standard of proof was on the balance of probabilities, having regard to the gravity of the allegation.[8] The contravention must be shown to be intentional, that is, deliberate as distinct from inadvertent, but it does not require proof of contumacious behavior.[9]
[8] Evidence Act1995 (Cth) s.140. See also Reilly & Reilly [1995] FamCA 152; Lindsey & Lindsey [1995] FamCA 117.
[9]Fauna Holdings v Mitchell [2000] FamCA 313; Hay & Hay [1998] FamCA 95; English & English [1986] FamCA 69; Nieuwstraten & Nieuwstraten [1987] FamCA 11.
The Baptism: Counts 8, 9, 10 and 11
The applicant objects not only to the fact that X was baptised in the Roman Catholic church, but that the respondent did so without any consultation with, or agreement from, the applicant.
The respondent takes issue with the wording of Count 8, and submits that it is ‘a fiction’ as the respondent ‘did not baptise anybody’. The alleged contravention is read having regard to the plain meaning of the words used. It is not an allegation that the respondent personally performed the sacrament. It is an allegation that the respondent had X baptised, which she did.
The respondent deliberately engaged in the conduct of having X baptised.
The respondent did not inform the applicant about the decision either prior to or after she had made it, she did not consult with him at all and there was no agreement, and there was no genuine effort, indeed even an attempt, to come to a joint decision. So much is established on the evidence. The respondent squarely conceded these matters.[10]
[10] Exhibit 2 at [40].
The evidence establishes that the decision to baptise X was a unilateral decision made by the respondent.
The Court has determined that, a decision concerning a baptism is an exercise in parental responsibility. The respondent was also of the understanding that this was so.
The respondent understood at all relevant times her obligations under the Final Orders.
The respondent has not established any reasonable excuse.
Counts 8, 9, 10, and 11 are established.
Daycare Unenrolment and Enrolment: Counts 1, 2 and 3
While there is evidence of the parties discussing, prior to 21 December 2023, their dissatisfaction with B Daycare, the evidence does not support a finding that the parties had discussed and agreed upon X being taken out of the centre, and enrolled somewhere else.
The fact that the respondent took the view that the applicant was unhappy with B Daycare may have been open to her, but it did not leave open to her to make a unilateral decision to change X’s daycare from B Daycare to C Daycare.
The respondent did not inform the applicant about the decision to change X’s daycare, which necessarily involved a withdraw from B Daycare (or ‘unenrolment’ as the applicant pleads) and an enrolment into C Daycare, either prior to or after she had made that decision (or those decisions). She did not consult with him at all and there was no agreement, and there was no genuine effort, indeed even an attempt, to come to a joint decision about changes to X’s daycare. So much is established on the evidence.
The respondent deliberately engaged in such conduct. The decision by the respondent was unilateral. This was conduct in contravention of the Final Orders.
The respondent understood at all relevant times her obligations under the Final Orders.
The respondent has not established any reasonable excuse.
Counts 1, 2, and 3 are established.
Relevant Legal Principles Post-2023 Amendments
The alleged contraventions in respect of the enrolment at D School, namely Counts 4, 5, 6, and 7, all post-date the 2023 legislative amendments. Therefore, the Court’s determination of those counts is subject to the legislative provisions as they currently exist.
From 6 May 2024, the 2023 amendments came into effect and simplified the pathway for contraventions. The law dealing with what a contravention is and how it is proven, while undergoing some structural changes, has remained consistent. A simplified outline is found in s 70NAA of the Act which sets out the orders the Court may make depending on whether a contravention is found, and the seriousness of the contravention. The outline provides:
The court may, at any stage of proceedings (and without having to make a finding about the contravention), make any of the following orders:
(a) a make‑up time parenting order;
(b) an order varying or suspending a parenting order;
(c)an order requiring the respondent and any other party to the proceedings to attend a post‑separation parenting program.
If the court finds on the balance of probabilities that the respondent contravened the child‑related order without having a reasonable excuse, the court may make any of the following orders (having regard to the seriousness of the contravention):
(a) an order requiring the respondent to enter into a bond;
(b)an order imposing a fine on the respondent for failing to enter into a bond.
If the court is satisfied beyond reasonable doubt that the respondent contravened the child‑related order without having a reasonable excuse, the court may also make any of the following orders (having regard to the seriousness of the contravention):
(a) an order imposing a fine on the respondent;
(b) an order imposing a sentence of imprisonment on the respondent.
…
The meaning of ‘contravene a child-related order’ is set out at s 70NAC of the Act, relevantly:
(1) A person contravenes a child‑related order only if:
(a)the person is a person (other than a child) to whom the order applies and:
(i) the person intentionally fails to comply with the order; or
(ii)the person makes no reasonable attempt to comply with the order; or
…
The meaning of ‘reasonable excuse for contravening a child-related order’ is in s 70NAD of the Act and, without limiting the circumstances for reasonable excuse, relevantly provides:
Where person did not understand obligations
(1) A person has a reasonable excuse for contravening a child‑related order if:
(a)the person contravened the order because at the time of the contravention the person did not understand the obligations imposed by the order; and
(b)the court considers that the person ought to be excused in respect of the contravention.
…
Protection of health or safety of a person
(3) A person has a reasonable excuse for contravening a child‑related order if:
(a)the person contravened the order because the person reasonably believed that the person’s actions constituting the contravention were necessary to protect the health or safety of the person, a child or any other person; and
(b)the period of the contravention was not longer than necessary to protect the health or safety of the person, child or other person.
(4)This section does not limit the circumstances in which a person may have a reasonable excuse for contravening a child - related order.
The burden is on the applicant to prove the contravention and on the respondent to prove the excuse,[11] with the standard being on the balance of probabilities.[12] The contravention must still be shown to be intentional.
[11] Act s 70NADA.
[12] Act s 70NAE, noting the exception to this being in respect of orders made under s70NBF(1)(d) where the burden is beyond reasonable doubt.
Primary School Enrolment: Counts 4, 5, 6 and 7
The respondent applied for X to be enrolled and then accepted the offer of enrolment. The respondent enrolled X into D School. This occurred on 4 July 2024.
Without being enrolled, X would not be eligible to attend D School. Being enrolled in a school is a preliminary administrative step after which a student is eligible to attend the school for classes.
The Court does not accept the respondent’s submission that a student is not enrolled in a school until such time as the student commences attending that school.
The enrolment of a child in a school is an exercise of parental responsibility.
The Final Orders further clarify and specify that the parents have equal shared parental responsibility in respect of X’s education.
The respondent deliberately engaged in conduct to have X enrolled into D School.
The respondent understood that applying for and accepting a school enrolment was an exercise in parental responsibility. The evidence establishes that such a decision was a unilateral decision made by the respondent.
The respondent did not consult with the applicant in respect of the decision to have X enrolled into D School. She did not inform the applicant about the decision to apply for enrolment either prior to or after she had made it, or about the decision to accept the offer of enrolment, she did not consult with him at all, there was no agreement, and there was no genuine effort, indeed even an attempt, to come to a joint decision about X’s enrolment into that particular school. The applicant was completely cut out of the process. So much is established on the evidence.
The respondent understood at all relevant times her obligations under the Final Orders.
The respondent did not lead any evidence nor make any submissions that the reason for her contravention was because of reasons concerned with X’s health or safety.
The respondent has not established any reasonable excuse for contravening the orders.
Counts 4, 5, 6, and 7 are established.
CONCLUSION
Contravention proceedings, while very serious in nature, are not criminal proceedings. The Court accepts that precision is required in drafting the ‘charge’, however, this is in part due to the way that the forms are required to be filled in by before they are accepted by filing. One of the difficulties is that the forms require not only a particular date to be pleaded, but also a time of the alleged contravention.
Notwithstanding that the applicant has not established that the alleged contraventions occurred at precisely the time which it is alleged they occurred, given the nature of the orders which have been contravened, that is the exercise of parental responsibility and failure to inform, consult and make a genuine effort to come to a joint decision, it would be an overly pedantic and unnecessarily strict requirement to impose upon the applicant to require proof in the manner submitted by the respondent.
The Court is satisfied, on the balance of probabilities, that the respondent has contravened the orders as referred to earlier in these reasons.
The contraventions have all been established.
The next step is to determine what orders, if any, are to be made as a consequence of the finding of the respondent’s contraventions of the Final Orders.
I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 10 March 2025
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