Najar & Bata (No 3)
[2025] FedCFamC2F 1016
•21 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Najar & Bata (No 3) [2025] FedCFamC2F 1016
File number(s): PAC 2262 of 2022 Judgment of: JUDGE STREET Date of judgment: 21 July 2025 Catchwords: FAMILY LAW - CONTRAVENTION - sentenced to twelve concurrent nine-month bonds – no basis for pecuniary penalty or imprisonment Legislation: Family Law Act 1975 (Cth) Cases cited: Adelstein & Byron [2024] FedCFamC2F 1253
Galvis & Galvis [2024] FedCFamC1A 123
Langer & Griffin [2013] FamCAFC 170
Division: Division 2 Family Law Number of paragraphs: 34 Date of hearing: 21 July 2025 Place: Sydney For the Applicant: The Applicant appeared via visual/audio link Solicitor for the Respondent: Ms K Ziayee of Supreme Justice Lawyers ORDERS
PAC 2262 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR NAJAR
Applicant
AND: MS BATA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
21 JULY 2025
THE COURT ORDERS THAT:
1. By close of business, on or before 28 July 2025, the respondent father shall enter into the following twelve concurrent bonds:
1.1 - In respect of the contravention 1, that occurred on 29 October 2024, for a period of 9 months upon the condition that the respondent father comply with the current parenting orders (being Orders made on 27 September 2024).
1.2 - In respect of contravention 2, that occurred on 30 October 2024, for a period of 9 months upon the condition that the respondent father comply with the current parenting orders (being Orders made on 27 September 2024).
1.3 - In respect of contravention 3, that occurred on 23 November 2024, for a period of 9 months upon the condition that the respondent father comply with the current parenting orders (being Orders made on 27 September 2024).
1.4 - In respect of contravention 4, that occurred on 23 November 2024, for a period of 9 months upon the condition that the respondent father comply with the current parenting orders (being Orders made on 27 September 2024). 3
1.5 - In respect of contravention 5, that occurred on 23 November 2024, for a period of 9 months upon the condition that the respondent father comply with the current parenting orders (being Orders made on 27 September 2024).
1.6 - In respect of contravention 6, that occurred on 1 December 2024, for a period of 9 months upon the condition that the respondent father comply with the current parenting orders (being Orders made on 27 September 2024).
1.7 - In respect of contravention 7, that occurred on 24 December 2024, for a period of 9 months upon the condition that the respondent father comply with the current parenting orders (being Orders made on 27 September 2024).
1.8 - In respect of contravention 8 that occurred on 30 December 2024, for a period of 9 months upon the condition that the respondent father comply with the current parenting orders (being Orders made on 27 September 2024).
1.9 - In respect of contravention 9 that occurred on 10 February 2025, for a period of 9 months upon the condition that the respondent father comply with the current parenting orders (being Orders made on 27 September 2024).
2.0 - In respect of contravention 10 that occurred on 11 March 2025, for a period of 9 months upon the condition that the respondent father comply with the current parenting orders (being Orders made on 27 September 2024).
2.1 - In respect of contravention 11 that occurred on 11 March 2025, for a period of 9 months upon the condition that the respondent father comply with the current parenting orders (being Orders made on 27 September 2024).
2.2 – In respect of contravention 12 that occurred on 11 March 2025, for a period of 9 months upon the condition that the respondent father comply with the current parenting orders (being Orders made on 27 September 2024).
THE COURT ORDERS THAT:
2. For the respondent father to attend the appointment with Senior Judicial Registrar Neilson at 12pm, Thursday, 24 July 2025, at the Parramatta registry, to sign the bonds pursuant to order 1.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
The Court has before it today the determination of sentences to impose in relation to twelve convictions that were the subject of a judgment published on 2 May 2025 in respect of the applicant father (“the father”). The Court made directions to facilitate the filing of evidence in relation to sentencing.
The Court has treated as having before it the material that was before it for the purpose of determination of the contraventions. There was a further affidavit filed by the father dated the 29 of May 2025, which was admitted into evidence without objection. There was also filed an affidavit by the respondent mother (“the mother”) on 20 June 2025, that sought to repeat material in her earlier affidavit and then added other paragraphs. The Court was of the view that the additional content of that further affidavit was one where its prejudicial value outweighed its probative value and declined to receive the same into evidence. The father’s affidavit relevantly identified a level of insight in relation to the contraventions that occurred. The father identified his limited financial means and, relevantly, apologised in relation to the conduct that had been identified in some of the contraventions. The father also identified having a better understanding of the Court orders and said that he will now make sure no breaches take place in the future.
In the course of submissions, the father was reminded of the terms of the orders made by Judge Newbrun in the final parenting orders pronounced on 27 September 2024. In particular, the Court took the father to order (4), which states the following:
The children spend time with and communicate with the father in accordance with their wishes, and only with the written consent of the mother.
There is a provision, which the Court understands has been complied with, where the father has provided his email address to the mother and, relevantly, order (6) provides the following:
Should the children express a wish to spend time or communicate with the father, and should the mother consent to such time and communication, the mother shall contact the father by email to arrange for such time or communication to occur.
There was attached to the father’s affidavit, a text upon which he wished to place some weight. It is apparent that the text was not on email, and it is only if the father is sent an email by the mother to his email address, that he can respond. It is important that the father not send communications in breach of those orders. That means, while the father may communicate through legal practitioners to the mother's practitioners, or, indeed, if acting for himself, send a communication to the legal practitioner acting on behalf of the mother, it cannot be copied to the mother as that would be a clear contravention of the order. The father must, in the future, strictly comply with the terms of the orders made by Judge Newbrun.
In submissions, the father maintained that he would do so and identified that he had a lack of clarity in his understanding - being self-represented - of those orders. The Court explained that the orders are ones that must be complied with in the future, and the father identified that he intended to do so.
The father’s submissions and evidence identified limited means to meet any penalty, if a penalty were to be imposed, and identified that he is struggling to pay child support, given his limited financial means. The submissions on behalf of the mother included written submissions that sought originally, a level of bond beyond the power that the Court has in terms of period and sought substantial penalty. The submissions were the subject of helpful oral refinement by the solicitor for the mother, recognising that the maximum period that a bond could be imposed identified in s 70NFB(1)(b) and (2) of the Family Law Act 1975 (Cth) (“the Act”) is two years, and recognising that the maximum penalty units in terms of dollars for the purpose of punishment that can be imposed in respect of each contravention reflects 10 penalty units, amounting in dollar terms to $3,300.
The submissions on behalf of the mother did not identify any comparable sentencing cases, albeit the Court referred to one by Judge Stewart where, although the facts were different, the learned judge in Adelstein & Byron [2024] FedCFamC2F 1253 imposed on each conviction a concurrent bond of six months with a condition for compliance in that case with current and future parenting orders. The mother’s representative, Ms K Ziayee, did identify that the number of contraventions were a relevant factor to take into account in determining the period for which the bond should be imposed in the present case.
The very nature of the contravention of a parenting order is one likely for the person, the subject of that contravention, to be intimidatory and likely to cause a level of apprehension or fear. The father in the present case engaged in a number of contraventions in terms of the orders made for no communication, some of which were committed by using pay phones, and some of which were providing purported benefits in terms of money or sweets to the children or leaving a document, all of which were capable of instilling apprehension and fear in the mother and/or two daughters. The Court turns to the law in relation to sentencing and, firstly, takes into account the objects in section 70NAB of the Act and in particular, the importance of deterring non-compliance with child-related orders and upholding the authority of the Court by enforcing compliance with child-related orders, where the Court considers this necessary and appropriate.
The Court has also taken into account the terms of s 70NBF and s 70NCA of the Act. As earlier identified, the maximum financial penalty that can be imposed for each contravention is 10 penalty units, currently amounting to $3,300. The maximum period for the bond that could be imposed is two years. This is not a case where imprisonment was within the contemplation of the Court and is not relevant as a possible punishment in the present case. The Court has also taken into account the general principles in relation to sentencing, helpfully identified by the learned Austin J in Galvis & Galvis [2024] FedCFamC1A 123, relevantly at [43] to [49]. In that regard, the Court has also taken into account, as referred to in that decision, the principles identified in [55] of Langer & Griffin [2013] FamCAFC 170 concerning sentencing.
THE EFFECT OF MAKING THE ORDER ON ANY CHILD OR ANY OTHER PERSON
Turning now to the appropriate sentence to impose in the circumstances of the present case, the Court first takes into account the likely effect of making the order on any child or any other person. In that regard, the imposition of a punishment will have an immediate effect on the father if the Court makes orders. Additionally, the nature of those orders, in terms of upholding the existing parenting order regime, will have an impact on the mother and two daughters, who are currently 12 and 14 years old.
SERIOUSNESS OF THE CONTRAVENTIONS
In relation to the seriousness of the contraventions, the contraventions were identified specifically in paragraph 14 of the Court's judgment delivered on 2 May 2025. It was accepted by Ms Ziayee that the contraventions were not at the most serious end of the spectrum but Ms Ziayee did emphasize, in relation to the process that the Court must undertake in sentencing, that the number of contraventions was material and relevant in weighing what would be the appropriate punishment to impose. The Court accepts that submission.
Each contravention is capable of instilling a level of fear and apprehension in the mother because of the non-compliance with the parenting orders. They were also capable of having an impact adverse to the children. Contravening parenting orders is a matter that must be taken seriously, and has a significance, as identified in the objects of Division 13A of the Act, to which the Court has already referred.
That said, in the present case, the Court does regard the contraventions as not being at the most serious end of the spectrum. They are not insignificant and have given rise to a declaration of contravention prior to this sentence hearing. They were not trivial contraventions, and they are not contraventions that warrant no punishment being imposed.
The Court must approach the sentencing task consistent with what was identified by the learned Austin J in dealing with each contravention separately in respect of the punishment to be imposed. The Court has taken into account that the father, as respondent to the contraventions, has not previously been found to have contravened orders prior to the determination on 2 May 2025. Whilst the Court has had regard to the number of contraventions, the Court does not find that the father behaved in a way that showed a serious disregard of his obligations under the child-related orders.
The Court does accept that the father behaved, in relation to his obligations, in a way that was in contravention of those orders and that, of itself, shows a degree of disregard by the father. However, the Court does not find, in this case, notwithstanding the combination of contraventions, that the Court should find it was a serious disregard within s 70NBF(3)(b) of the Act. This is not a case where there was any behaviour by the father within s 70NBF(3)(c) of the Act that is relevant to the punishment to be imposed, and as the Court has already identified, these are not contraventions in respect of which any sentence of imprisonment could be imposed.
The Court finds that the father is genuinely contrite and apologetic for the contraventions. The Court finds that the father has a level of insight in relation to his past conduct, that provides a level of confidence to the Court, that he will not engage in future contraventions. The Court accepts that the father's financial circumstances are such, that imposing any financial penalty upon him would impose a burden that he is unable and unlikely to meet and would not be appropriate or proportionate to any of the contraventions in the present case. The Court is however of the view that this is a matter where, irrespective of each contravention, a bond under s 70NCA is a punishment within contemplation. Turning to the ordinary principles.
DETERRING NON-COMPLIANCE WITH CHILDREN-RELATED ORDERS
The Court has already identified that while serious in respect of each contravention, none of the contraventions are at the most serious end of the spectrum as to the contravening conduct. Turning to general deterrence, consistent with s 70NAB of the Act, it is important to deter others from failing to comply with parenting orders. In the context of this case, the Court regards the requirement of general deterrence as warranting the imposition of a bond of a kind identified as falling within s 70NCA of the Act, and that this will advance the objective of general deterrence. In relation to specific deterrence, the Court is satisfied that the father's level of insight, contrition, and apology, lessens the need for specific deterrence.
The combination of contraventions do, however, weigh in favour of a slightly greater period of bond than might otherwise have been imposed, as it does reflect a period of disregard and contravening conduct that is not insignificant. So far as rehabilitation is concerned, the Court is satisfied that imposing a bond will assist the father, if the condition is for compliance with parenting orders, to continue to comply with those parenting orders, and will assist him in doing so in the future. In relation to mitigating factors, the Court has taken into account the contrition and apology identified earlier in the evidence. The Court does regard the number and combination of contraventions as an aggravating factor, but there are no other aggravating factors in the present case.
In relation to contravention 1, that occurred on 29 October 2024, the Court is satisfied that the appropriate punishment and sentence to impose, taking into account all the facts to which the Court has referred, is that the father should enter into a bond in respect of that contravention for a period of nine months upon the condition that the father shall comply with the current parenting orders.
In relation to the contravention 2, that occurred on 30 October 2024, taking into account the factors to which the Court has referred, the Court is satisfied that a concurrent punishment of a bond should be imposed on the same conditions as earlier identified.
In relation to the contravention 3, that occurred on 23 November 2024, taking into account the relevant factors to which the Court has referred, the Court is satisfied that a concurrent punishment of a bond should be imposed on the same conditions as earlier identified.
In relation to contravention 4, that occurred on 23 November 2024, the Court is satisfied that a concurrent punishment of a bond should be imposed on the same conditions as earlier identified.
In relation to contravention 5, that occurred on 23 November 2024, the Court takes into account the matters referred to and is satisfied that a concurrent punishment of a bond should be imposed on the same conditions as earlier identified.
In relation to contravention 6, that occurred on 1 December 2024, the Court is satisfied, taking into account the matters referred to, that a concurrent punishment of a bond should be imposed on the same conditions as earlier identified.
In relation to contravention 7, that occurred on 24 December 2024, the Court is satisfied, taking into account the matters referred to, that a concurrent punishment of a bond should be imposed on the same conditions as earlier identified.
In relation to contravention 8, that occurred on 30 December 2024, the Court takes into account that the considerations referred to above and is satisfied that a concurrent punishment of a bond should be imposed on the same conditions as earlier identified.
In relation to contravention 9, that occurred on 10 February 2025, the Court takes into account the considerations referred to earlier and is satisfied that a concurrent punishment of a bond should be imposed on the same conditions as earlier identified.
In relation to contravention 10, that occurred on 11 March 2025, the Court takes into account the earlier considerations identified and is satisfied that a concurrent punishment of a bond should be imposed on the same conditions as earlier identified.
In relation to the contravention 11, that occurred on 11 March 2025, the Court takes into account the considerations referred to and is satisfied that a concurrent punishment of a bond should be imposed on the same conditions as earlier identified.
In relation to contravention 12, that occurred on 11 March 2025, the Court takes into account the considerations earlier referred to and is satisfied that a concurrent punishment of a bond should be imposed on the same conditions as earlier identified.
The Court now engages in the task of explaining the importance to the father of entering into those bonds and the consequences if he fails.
In respect of each of the contraventions, the Court is imposing upon the father a punishment that he enter into a bond for nine months with a condition that he comply with the current parenting orders. If the father fails to comply with that condition that is imposed on each of the contraventions, may give rise to, for each of the bonds, a penalty in the sum of $3,300, being 10 penalty units. That means, collectively, there would be a potential penalty for each of the 12 contraventions of $3,300, that amounts to $39,600. The father must attend upon the registrar to sign the bonds within the next seven (7) days. If the father fails to enter into the bond, then the Court may impose punishments upon the father consistent with the contravention punishments that were open to the Court. That means the father would be exposed to the potential of a greater period in respect of the bond and/or a financial penalty in respect of each contravention.
It is for these reasons the Court makes the above orders.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of Judge Street. Associate:
Dated: 28 July 2025
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