Ongal and Materns (No 3) - [2013] FamCA 946

FAMILY COURT OF AUSTRALIA

ONGAL & MATERNS (NO. 3)

[2013] FamCA 946

FAMILY LAW – ORDERS – contravention – where the mother’s first application for contravention orders alleged two counts of contravention – where the father admitted both counts of contravention – where the father was found not to have a reasonable excuse for the two admitted counts of contravention – consideration of what orders to make arising out of these findings – consideration of whether to apply Subdivision E or Subdivision F of Division 13A of Part VII of the Family Law Act 1975 (Cth) – consideration of what orders to make under s 70NEB of the Family Law Act 1975 (Cth) – orders made requiring the father to enter into a bond in accordance with s 70NEC of the Family Law Act 1975 (Cth).

FAMILY LAW – ORDERS – contravention – where the mother’s second application for contravention orders alleged two counts of contravention – where the application was dismissed at an earlier hearing – consideration of what orders to make arising out of these findings – no orders made.

FAMILY LAW – ORDERS – contravention – where the father’s application for contravention orders alleged four counts of contravention – where the mother admitted all counts of contravention – where the mother was found to have a reasonable excuse for the four admitted counts of contravention – consideration of what orders to make arising out of these findings – no orders made.

FAMILY LAW – ORDERS – contravention – consideration of s 70NBA of the Family Law Act 1975 (Cth) – best interests – orders made.

Family Law Act 1975 (Cth) ss 70NAA; 70NAE; 70NBA; 70NCB; 70NDB; 70NDC; 70NEA; 70NEB; 70NEC; 70NECA; 70NFA; 70NFB; 102QB; 102QC;117
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth)

Rice & Asplund (1979) FLC 90-275
B & P [2000] FamCA 392
Sandler & Kerrington [2007] FamCA 479
Irvin & Carr [2007] FamCA 492
Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655
Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 1072
Dobbs & Brayson [2007] FamCA 1261
Oscar & Traynor [2008] FamCAFC 158
Tasman & Tisdall [2008] FamCA 458
Brown & Crawford [2009] FamCA 96
Gervasis & Purdy [2009] FamCA 255
Yates & Turner [2009[ FamCA 887
Pearce & Cole (No. 4) [2009] FamCA 1221
McClintock & Levier (2009) 233 FLR 179
Gravis & Major [2010] FamCAFC 239
McLory & McLory [2010] FamCA 305
Pickering & Pickering (No. 4) [2010] FamCA 981
Abud & Abud [2010] FamCA 1132
Skinner & Cluny [2011] FamCA 429
Spencer & Verity [2012] FamCAFC 210
Ongal & Materns [2012] FamCA 1144
Gillman & Taggart [2012] FMCAfam 1226
Ongal &Materns [2013] FamCA 283

APPLICANT:

Mr Ongal

RESPONDENT:

Ms Materns

FILE NUMBER:

ADC

2107

2007

DATE DELIVERED:

4 December 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

22 May 2013,
4 September 2013,
10 October 2013, and
24 October 2013.

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

In person

Orders

Pursuant to s 70NBA of the Family Law Act 1975 (Cth) (“the Act”):

The following parenting orders are either continued or are now made and all other orders relating to the children are discharged:

The parties do have equal shared parental responsibility for the children L born … 2001 and M born … 2004.
The said children do live with the mother.
The said children spend time with the father as follows:-
(a)from 3.25 pm Thursday 5 December 2013 until 8.25 am Friday 6 December 2013 and in each alternate week thereafter PROVIDED THAT always that if on any such Thursday the said children shall have a “pupil free day” then the children do spend time with the father on that day from 9.00 am;
(b)from 3.25 pm Thursday 30 January 2014 until 8.25 am Monday 3 February 2014 and in each alternate week thereafter PROVIDED THAT always that firstly if on any such Thursday the said children shall have a “pupil free day” then the children shall spend time with the father on that day from 9.00 am and secondly if any such Monday shall fall on a public holiday then the father shall return the children to school at 8.50 am on the following Tuesday;
(c)for the first half of the end of Term 1, end of Term 2 and end of Term 3 school holidays in each year from 2.25pm on the last day of the school term until 5.00pm on the second Saturday of each such period UPON NOTING that:-
(i)paragraph 3(a) and 3(b) hereof shall be suspended during such school holiday periods and Christmas school holiday periods (referred to hereunder); and
(ii)paragraph 3(c) as it relates to the end of Term 1 school holidays is suspended during the periods of time that the children are to be with the mother at Easter pursuant to paragraph 3(f) below;
(d)for the first half of the Christmas school holiday period in 2014/2015, and in each alternate year thereafter, commencing from the conclusion of school on the last day of term until 5.00pm on the Saturday closest to the midpoint of said Christmas school holiday period (to the intent that each party shall have equal time with the said children during such Christmas school holiday period);
(e)for the second half of the Christmas school holiday period in 2013/2014, and in each alternate year thereafter, commencing 5.00pm on the Saturday closest to the midpoint of said Christmas school holiday period until 8.50am on the first day of term in the New Year (to the intent that each party shall have equal time with the said children during such Christmas school holiday period);
(f)from 3.25pm on Maundy Thursday 2015 until 5.00pm on the following Easter Monday and each alternate Easter thereafter UPON CONDITION that the children are to spend time with the mother from 3.25pm on Maundy Thursday 2014 until 5.00pm on the following Monday and each alternate Easter thereafter;
(g)on the weekend including Father’s Day from 3.25 pm on the preceding Friday until 8.50 am on the succeeding Monday, reserving for the mother the weekend including Mother’s Day from 3.25 pm on the preceding Friday until 8.50am on the succeeding Monday.
All handovers on days when one or both of the children are attending school shall occur at the children’s school in relation to that child or children but that otherwise all handovers that do not take place at the children’s school take place inside the Town W Police Station with the father to leave the police station and its vicinity immediately upon handing over or collecting the said children and the mother to remain inside the Town W Police Station for 5 minutes after handover.
No member of the mother’s family be present at handover, either inside or outside the Town W Police Station nor within 100 metres of the Town W Police Station, save and except in the case of illness, accident or emergency when either party may nominate another person to attend handovers.
Each party is at liberty to attend all school fixtures and events to which parents are ordinarily invited.
Each party do keep the other informed as to the names and contact details of the children’s medical and health professionals noting that the father will ensure that the said children attend the same general practitioner as nominated by the mother.
The father and the mother are each restrained and an injunction is hereby granted restraining each of them from:
(a)videotaping the other at school or at handovers or sporting fixtures;
(b)discussing proceedings under the Act in the presence of or in the hearing of the children or permitting any other person to do so;
(c)abusing or denigrating the other parent to the children or in the presence of the children and from permitting any other person to do so;
(d)abusing or denigrating the partner of the other parent or any children of the other parent’s partner and from permitting any other person to do so;
(e)causing or permitting the children to be known by any surname other than “Materns-Ongal”;
(f)seeking to alienate the children from the other parent;
(g)telephoning the other UPON NOTING that any communication between the parties is to be confined to issues concerning the children and is to be restricted to email and SMS communication.
The father do ensure that the children attend Friday evening sports training during school terms UPON CONDITION that the mother do inform the father on the giving of seven [7] days’ notice in writing of any change or any expressed desire for change by the said children.
The parties are restrained from filing any further Applications, Affidavits or other material in the Family Court of Australia without first obtaining leave of a Judge of this Court in the following manner:
(a)any such application for leave to file such material will, in the first instance, be listed for hearing before a Judge in chambers;
(b)any such application for leave is to be facilitated by the applicant party annexing to the material for which leave is sought to be filed a written application specifying with particularity the orders sought together with an affidavit setting out the basis for such orders and a written argument in support of the Court granting permission to allow such material to be filed;
(c)unless otherwise ordered by the court, any such application for leave shall not be served on the other party to the proceedings;
(d)the Court shall thereafter deliver written reasons for its decision with respect to permission being granted or denied to file the relevant material.
In circumstances where either of the parties makes application for parenting orders to the Federal Circuit Court of Australia, the applicant party shall attach to such application a copy of these orders.

IT IS FURTHER ORDERED THAT:

Within seven [7] days from today the father MR ONGAL enter into a bond for a period of TWO YEARS without surety but with ONE THOUSAND DOLLARS [$1,000.00] as security upon the following conditions:
(a) Be of good behaviour during the period of the bond; and
(b) Comply with all current and future parenting orders.
The mother’s Application for Contravention Orders filed on 13 July 2012 is otherwise dismissed.
The father’s Application for Contravention Orders filed on 16 July 2012 is dismissed without further order.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ongal & Materns (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2107 of 2007

Mr Ongal

Applicant

And

Ms Materns

Respondent

REASONS FOR JUDGMENT

Introduction

On 1 May 2013, I handed down a judgment (See generally Ongal & Materns [2013] FamCA 283, hereafter referred to as “the 1 May 2013 judgment”) which considered two applications for contravention orders filed by Ms Materns, (“the mother”) on 13 July 2012 and one application for contravention orders filed by Mr Ongal, (“the father”) on 16 July 2012.
Those applications for contravention orders asserted various breaches of parenting orders concerning the two children of the marriage L (born on in 2001, now aged 12) and M (born in 2004, now aged 9), (“the children”).
After the initial hearing date of 22 May 2013 the matter was adjourned upon the request of the father. The parties appeared before me on 4 September 2013 to make submissions as to the orders I should make consequent upon my findings in the 1 May 2013 judgment. Both parties were unrepresented. I reserved judgment in relation to the matter after hearing submissions from the parties. Complications resulted in the matter being reopened and submissions being heard on 1 October 2013 and 24 October 2013 before I once again reserved my decision.

The 1 May 2013 Judgment

The 1 May 2013 judgment considered three applications for contravention orders.

The mother’s first application for contravention orders

The mother’s first application for contravention orders filed on 13 July 2012 alleged two counts of contraventions.
The first count allegedly occurred at 5.00 pm on Saturday 14 April 2012 at the Town W Police Station. The alleged contravention is said to be in breach of order 5(i)(d) of the Consent Orders certified by Justice Strickland on 27 February 2007. The statement of the alleged contravention is “Respondent without reasonable excuse did not return the child [L] inside the [Town W] police station for School holidays.”
Order 5(i)(d) of the Consent Orders certified by Justice Strickland on 27 February 2007 provides:
5.That the said children do spend time with the father as follows:
(i)as to the child [L]
(d) for the first half of the April, June/July, and September/October school holidays in each year from the conclusion of school on the Friday until 5.00pm on the second Saturday of each such period to the intent that the time spent by the child with the father referred to in sub-paragraphs b) and c) above shall be suspended during such school holiday periods and Christmas school holiday periods.
The second count also allegedly occurred at 5.00 pm on Saturday 14 April 2012 at the Town W Police Station. The alleged contravention is said to be in breach of orders 5(ii)(l) of the Consent Orders certified by Justice Strickland on 27 February 2007 and Order 7 of the Consent Orders certified by Justice Burr on 4 June 2008. The statement of the alleged contravention is “Respondent without reasonable excuse did not return the child [M] inside [Town W] police station for April School Holidays.”
Order 5(ii)(l) of the Consent Orders certified by Justice Strickland on 27 February 2007 provides:
5.That the said children do spend time with the father as follows:
(ii) as to the child [M]
(l) thereafter for all school holiday periods and Easter and Christmas and Father’s day and on his birthday at the same times as ordered for the child [L];
Order 7 of the Consent Orders certified by Justice Burr on 4 June 2008 provides:
7.That paragraph 5ii)(l) of the Orders made herein on 27 February 2007 be amended as follows:-
Thereafter for all school holiday periods, Monday Public Holidays, Easter, Christmas and Father’s Day at the same times as ordered for the child [L] provided that the father shall return [M] to the mother between the hours of 8.50am until 5.00pm on Mother’s Day in each year.
The father admitted both counts of contravention contained in this application. I found the father had failed to establish a reasonable excuse on the balance of probabilities for both counts (See generally [2013] FamCA 283, [40]-[48]).

The mother’s second application for contravention orders

The mother’s second application for contravention orders also filed on 13 July 2012 alleged two counts of contraventions.
The first count allegedly occurred at 4.00 pm on Friday 23 December 2011 at the Town W Police Station. The alleged contravention is said to be in breach of order 5(i)(h) of the Consent Orders certified by Justice Strickland on 27 February 2007. The statement of the alleged contravention is “Respondent without reasonable excuse did not return the child [L] inside the [Town W] police station for Christmas.”
Order 5(i)(h) of the Consent Orders certified by Justice Strickland on 27 February 2007 provides:
5.That the said children do spend time with the father as follows:
(i)as to the child [L]
(h) from 4.00pm on 25/12/07 until 4.00pm on 27/12/07 and each alternate year thereafter (reserving to the mother from 4.00pm on 23/12/07 to 4.00pm on 27/12/08.
The second count also allegedly occurred at 4.00 pm on Friday 23 December 2011 at the Town W Police Station. The alleged contravention is said to be in breach of orders 5(ii)(l) of the Consent Orders certified by Justice Strickland on 27 February 2007. The statement of the alleged contravention is “Respondent without reasonable excuse did not return the child [M] inside [Town W] police station for Christmas.”
Order 5(ii)(l) of the Consent Orders certified by Justice Strickland on 27 February 2007 provides:
5.That the said children do spend time with the father as follows:
(ii)as to the child [M]
(l) thereafter for all school holiday periods and Easter and Christmas and Father’s day and on his birthday at the same times as ordered for the child [L];
As noted above concerning the mother’s first application for contravention orders, Order 5(ii)(l) of the Consent Orders certified by Justice Strickland on 27 February 2007 was amended by Order 7 of the Consent Orders certified by Justice Burr on 04 June 2008. The amendment is not relevant to this application for contravention orders.
I dismissed this application for contravention orders at the hearing on 20 December 2012. My reasons for doing so are contained in the decision of Ongal & Materns [2012] FamCA 1144.
Following the dismissal of this application for contravention orders, I exercised the discretionary power in s 70NBA of the Act to vary certain existing orders to clarify the arrangement for the December 2012 and January 2013 school holidays. Those amendments were made with the consent of the parties as set out in Ongal & Materns [2012] FamCA 1144.

The father’s application for contravention orders

The father’s application for contravention orders filed on 16 July 2012 alleges four counts of contraventions.
The first count allegedly occurred at 3.25 pm on 1 April 2010 at the Town W Police Station. The alleged contravention is said to be in breach of Order 5(i)(b) and 5(ii)(l) of the Consent Orders certified by Justice Strickland on 27 February 2007. The statement of the alleged contravention is “The mother, without reasonable excuse, did not attend at the [Town W] police station for handover of the children, thereby preventing the children [L] and [M] from spending time with the father for the period of Thursday afternoon until Friday morning.”
Order 5(ii)(l) has already been stated above in relation to the mother’s application for contravention orders. Order 5(i)(b) of the Consent Orders certified by Justice Strickland on 27 February 2007 provides:
5.That the said children do spend time with the father as follows:
(i)as to the child [L]
(b) from the conclusion of school Thursday 8/3/07 until the commencement of school on Friday 9/3/07 and in each alternate week thereafter (provided always that if on any such Thursday the said child shall have a “pupil free day” then the child do spend time with the father on that day from 9.00am);
The second count allegedly occurred at 3.25 pm on 1 April 2010 and 4 April 2010 at the Town W Police Station. The alleged contravention is said to be in breach of order 5(i)(d) and 5(ii)(l) of the Consent Orders certified by Justice Strickland on 27 February 2007. The statement of the alleged contravention is “The mother, without reasonable excuse, did not attend at the [Town W] Police station for handover of the children, thereby preventing the children [L] and [M] from spending time with the father for the period of the first week of the April 2010 school holidays.”
Orders 5(i)(d) and 5(ii)(l) have already been stated above in relation to the mother’s applications for contravention orders.
The third count allegedly occurred at 3.25 pm on 5 April 2012 at the Town W Police Station. The alleged contravention is said to be in breach of order 5(i)(c) and 5(ii)(l) of the Consent Orders certified by Justice Strickland on 27 February 2007. The statement of the alleged contravention is “The mother, without reasonable excuse, did not attend at the [Town W] police station for handover of the children, thereby preventing the children [L] and [M] from spending time with the father for the period of Thursday afternoon until Tuesday morning.”

Order 5(ii)(l) has been already been stated above in relation to the mother’s application for contravention orders. Order 5(i)(c) of the Consent Orders certified by Justice Strickland on 27 February 2007 provides:
5.That the said children do spend time with the father as follows:
(i)as to the child [L]
(c) from the conclusion of school on Thursday 15/3/07 until the commencement of school on Monday 19/3/07 and in each alternate week thereafter (provided always that firstly if on any such Thursday the said child shall have a “pupil free day” then the said child shall spend time with the father on that day from 9.00am and secondly if any such Monday shall fall on a Public Holiday then the father shall return the child to school on the following Tuesday at the appointed commencement time);
The fourth count allegedly occurred at 3.25 pm on 5 April 2012 and 6 April 2012 at the Town W Police Station. The alleged contravention is said to be in breach of order 5(i)(d) and 5(ii)(l) of the Consent Orders certified by Justice Strickland on 27 February 2007. The statement of the alleged contravention is:
The mother, without reasonable excuse, did not attend at the [Town W] police station for handover of the children, thereby preventing the children [L] and [M] from spending time with the father for the period of the April 2012 school holidays.
Orders 5(i)(d) and 5(ii)(l) have already been stated above in relation to the mother’s applications for contravention orders.
The mother admitted all four counts of contravention contained in this application. I found the mother had succeeded in establishing a reasonable excuse on the balance of probabilities for all four counts (See generally [2013] FamCA 283, [70]-[76]).

The Law

The sections of the Family Law Act 1975 (Cth) (“the Act”) concerning applications for contravention orders are contained at Division 13A of Part VII of the Act.
Subdivisions C to F of Division 13A of Part VII of the Act provide the orders available to the Court that can be made in instances where:
a)the contravention has been alleged but not established (Subdivision C);
b)the contravention is established but reasonable excuse for the contravention is found (Subdivision D);
c)the contravention is found to have occurred without reasonable excuse and the contravention is “less serious” (Subdivision E); and
d)the contravention is found to have occurred without reasonable excuse and the contravention is “more serious” (Subdivision F).
There is a live issue as to whether Subdivision F or Subdivision E applies for the counts contained within the mother’s first application for contravention orders. The mother argues that Subdivision F is applicable. The father argues that Subdivision E is applicable.
The provisions relevant to the application of Subdivision E and the orders available under that subdivision are as follows:

SECT 70NEA

Application of Subdivision
(1)Subject to subsection (4), this Subdivision applies if:
(a)a primary order has been made, whether before or after the commencement of this Division; and
(b)a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention ) of the primary order; and
(c)the person does not prove that he or she had a reasonable excuse for the current contravention; and
(d)either subsection (2) or (3) applies;

and, if the primary order is an order for the maintenance of a child, this Subdivision applies irrespective of the period since the current contravention occurred.
(2)For the purposes of paragraph (1)(d), this subsection applies if no court has previously:
(a)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(b)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.

(3)For the purposes of paragraph (1)(d), this subsection applies if:
(a)a court has previously:
(i) made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(ii) under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and
(b)the court, in dealing with the current contravention, is satisfied that it is more appropriate for that contravention to be dealt with under this Subdivision.

(4)This Subdivision does not apply if, in circumstances mentioned in subsection (2), the court dealing with the current contravention is satisfied that the person who contravened the primary order has behaved in a way that showed a serious disregard for his or her obligations under the primary order.

SECT 70NEB

Powers of court
(1)If this Subdivision applies, the court may do any or all of the following:
(a)     make an order directing:
(i)     the person who committed the current contravention; or
(ii)    that person and another specified person;

to attend a post-separation parenting program;
(b)if the current contravention is a contravention of a parenting order in relation to a child--make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;
(c)adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;
(d)make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;
(da)if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d)--impose a fine not exceeding 10 penalty units on the person;
(e)if:
(i)     the current contravention is a contravention of a parenting order in relation to a child; and
(ii)    the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii)   the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;

make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);
(f)make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and
(g)if the court makes no other orders in relation to the current contravention--order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.

Note 1: The court may also vary the primary order under Subdivision B.
Note 2: Paragraph (1)(a)--before making an order under this paragraph, the court must consider seeking the advice of a family consultant about the services appropriate to the person's needs (see section 11E).
(2)The court must not make an order under paragraph (1)(a) directed to a person other than the person who committed the current contravention unless:
(a)the person brought the proceedings before the court in relation to the current contravention or is otherwise a party to those proceedings; and
(b)the court is satisfied that it is appropriate to direct the order to the person because of the connection between the current contravention and the carrying out by the person of his or her parental responsibilities in relation to the child or children to whom the primary order relates.

(3)If the court makes an order under paragraph (1)(a), the principal executive officer of the court must ensure that the provider of the program concerned is notified of the making of the order.
(4)If:
(a)the current contravention is a contravention of a parenting order in relation to a child; and
(b)the contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period);

the court must consider making an order under paragraph (1)(b) to compensate the person for the time the person did not spend with the child (or the time the child did not live with the person) as a result of the contravention.
(5)The court must not make an order under paragraph (1)(b) if it would not be in the best interests of the child for the court to do so.
(6)In deciding whether to adjourn the proceedings as mentioned in paragraph (1)(c), the court must have regard to the following:
(a)whether the primary order was made by consent;
(b)whether either or both of the parties to the proceedings in which the primary order was made were represented in those proceedings by a legal practitioner;
(c)the length of the period between the making of the primary order and the occurrence of the current contravention;
(d)any other matters that the court thinks relevant.

(7)The court must consider making an order under paragraph (1)(g) if:
(a)the person (the applicant ) who brought the proceedings in relation to the current contravention has previously brought proceedings in relation to the primary order or another primary order in which the applicant alleged that the person (the respondent ) who committed the current contravention committed a contravention of the primary order or that other primary order; and
(b)on the most recent occasion on which the applicant brought proceedings of the kind referred to in paragraph (a), the court before which the proceedings were brought:
(i) was not satisfied that the respondent had committed a contravention of the primary order or that other primary order; or
(ii) was satisfied that the respondent had committed a contravention of the primary order or that other primary order but did not make an order under section 70NDB, 70NDC, 70NEB, 70NFB or 70NBA in relation to the contravention.

Sections 70NEC–70NEG are also contained within Subdivision E of Division 13A of Part VII of the Act. These sections generally expand upon the orders that are available in s 70NEB of the Act.
The provisions relevant to the application of Subdivision F and the orders available under that subdivision are as follows:

SECTION 70NFA

Application of Subdivision
(1)Subject to subsection (2), this Subdivision applies if:
(a)a primary order has been made, whether before or after the commencement of this Division; and
(b)a Court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention ) of the primary order; and
(c)the person does not prove that he or she had a reasonable excuse for the current contravention; and
(d)either subsection (2) or (3) applies.

Note:     For the standard of proof to be applied in determining whether a contravention of the primary order has been committed, see section 70NAF.
(2)For the purposes of paragraph (1)(d), this subsection applies if:
(a)no Court has previously:
(i)     made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(ii)    under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and
(b)the Court dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order.

(3)For the purposes of paragraph (1)(d), this subsection applies if a Court has previously:
(a)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(b)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.

(4)This Subdivision does not apply if the Court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under Subdivision E.
(5)This Subdivision applies whether the primary order was made, and whether the current contravention occurred, before or after the commencement of this Division.

SECTION 70NFB
Powers of court
(1)If this Subdivision applies, the court must, in relation to the person who committed the current contravention:
(a)make an order under paragraph (2)(g), unless the court is satisfied that it would not be in the best interests of the child concerned to make that order; and
(b)if the court makes an order under paragraph (2)(g)--consider making another order (or other orders) under subsection (2) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances; and
(c)if the court does not make an order under paragraph (2)(g)--make at least one order under subsection (2), being the order (or orders) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances.

(2)The orders that are available to be made by the court are:
(a)if the court is empowered under section 70NFC to make a community service order--to make such an order; or
(b)to make an order requiring the person to enter into a bond in accordance with section 70NFE; or
(c)if the current contravention is a contravention of a parenting order in relation to a child--to make a further parenting order that compensates a person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention, unless it would not be in the best interests of the child concerned to make that order; or
(d)to fine the person not more than 60 penalty units; or
(e)subject to subsection (7), to impose a sentence of imprisonment on the person in accordance with section 70NFG; or
(f)if:
(i)     the current contravention is a contravention of a parenting order in relation to a child; and
(ii)    the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii)   the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;

to make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii); or
(g)to make an order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under this Division; or
(h)to make an order that the person who committed the current contravention pay some of the costs of another party, or other parties, to the proceedings under this Division.

Note: The court may also vary the primary order under Subdivision B.
(3)If a court varies or discharges under section 70NFD a community service order made under paragraph (2)(a), the court may give any directions as to the effect of the variation or discharge that the court considers appropriate.
(4)The court must not make an order imposing a sentence of imprisonment on a person under this section in respect of a contravention of a child maintenance order made under this Act unless the court is satisfied that the contravention was intentional or fraudulent.
(5)The court must not make an order imposing a sentence of imprisonment on a person under this section in respect of:
(a)a contravention of an administrative assessment of child support made under the Child Support (Assessment) Act 1989 ; or
(b)a breach of a child support agreement made under that Act; or
(c)a contravention of an order made by a court under Division 4 of Part 7 of that Act for a departure from such an assessment (including such an order that contains matters mentioned in section 141 of that Act).

(6)An order under this section may be expressed to take effect immediately, at the end of a specified period or on the occurrence of a specified event.
(7)When a court makes an order under this section, the court may make any other orders that the court considers necessary to ensure compliance with the order that was contravened.

Sections 70NFC–70NFJ are also contained within Subdivision F of Division 13A of Part VII of the Act. These sections generally expand upon the orders that are available in s 70NFB of the Act.
Subdivision C is applicable to the mother’s second application for contravention orders as the application was dismissed (See generally s 70NCA of the Act and my reasons for decision in Ongal & Materns [2012] FamCA 1144). The only orders available in Subdivision C are contained in s 70NCB of the Act. That section provides:

SECTION 70NCB

Costs
(1)The court may make an order that the person who brought the proceedings (the applicant ) pay some or all of the costs of another party, or other parties, to the proceedings.
(2)The court must consider making an order under subsection (1) if:
(a)the applicant has previously brought proceedings in relation to the primary order or another primary order in which the applicant alleged that the respondent committed a contravention of the primary order or that other primary order; and
(b)on the most recent occasion on which the applicant brought proceedings of the kind referred to in paragraph (a), the court before which the proceedings were brought:
(i) was not satisfied that the respondent had committed a contravention of the primary order or that other primary order; or
(ii) was satisfied that the respondent had committed a contravention of the primary order or that other primary order but did not make an order under section 70NBA, 70NDB, 70NDC, 70NEB or 70NFB in relation to the contravention.

Subdivision D is applicable to the father’s application for contravention orders as the mother was found to have a reasonable excuse for the four counts of admitted contravention (See generally s 70NDA of the Act). The orders available in Subdivision D are contained in s 70NDB and s 70NDC of the Act. Those section provide:

SECT 70NDB

Order compensating person for time lost
(1)If:
(a)the primary order is a parenting order in relation to a child; and
(b)the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period);

the court:
(c)may make a further parenting order that compensates the person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention; and
(d)must consider making that kind of order.
Note:If the person does not have a reasonable excuse for a contravention, the court has the power to make an order compensating a person for time lost under paragraph 70NEB(1)(b) or 70NFB(2)(c).

(2)The court must not make an order under paragraph (1)(c) if it would not be in the best interests of the child for the court to do so.

SECTION 70NDC

Costs
(1)If the court does not make an order under section 70NDB in relation to the current contravention, the court may make an order that the person who brought the proceedings (the applicant ) pay some or all of the costs of another party, or other parties, to the proceedings.

(2)The court must consider making an order under subsection (1) if:
(a)the applicant has previously brought proceedings in relation to the primary order or another primary order in which the applicant alleged that the respondent committed a contravention of the primary order or that other primary order; and
(b)on the most recent occasion on which the applicant brought proceedings of the kind referred to in paragraph (a), the court before which the proceedings were brought:
(i) was not satisfied that the respondent had committed a contravention of the primary order or that other primary order; or
(ii) was satisfied that the respondent had committed a contravention of the primary order or that other primary order but did not make an order under section 70NBA, 70NDB, 70NEB or 70NFB in relation to the contravention.

Section 70NBA of the Act is relevant to any application for contravention orders. This section is contained within Subdivision B of Division 13A of Part VII of the Act, which is titled “Court’s power to vary parenting order”. Section 70NBA states:
SECTION 70NBA
Variation of parenting order
(1)A Court having jurisdiction under this Act may make an order varying a primary order if:
(a)    proceedings in relation to the primary order are brought before a Court having jurisdiction under this Act; and
(b)    it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i)the Court does not find that the person committed a contravention of the primary order; or
(ii)    the Court finds that the person committed a contravention of the primary order.
(2)    If Subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the Court, in addition to regarding, under section 60CA, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account:
(a)the person who contravened the primary order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post‑separation parenting program or a part of such a program;
(b)there was no post‑separation parenting program that the person who contravened the primary order could attend;
(c)because of the behaviour of the person who contravened the primary order, it was not appropriate, in the Court’s opinion, for the person to attend a post‑separation parenting program, or a part of such a program;
(d)the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the person had contravened a previous order under this Act affecting children.
(3)    This section does not limit the circumstances in which a Court having jurisdiction under this Act may vary a primary order.

Consideration of the mother’s first application for contravention orders

The father admitted both counts of contravention contained in this application. I found the father had failed to establish a reasonable excuse on the balance of probabilities for both counts.

Consideration of whether to apply Subdivision E or Subdivision F of Division 13A of Part VII of the Act

The first issue that arises for my consideration is whether I should deal with these contraventions under Subdivision E of Division 13A of Part VII of the Act as “less serious contraventions” or under Subdivision F as “more serious contraventions.”
Subdivision F will only apply if the conditions in either s 70NFA(2) or s 70NFA(3) of the Act are satisfied.
Subsection 70NFA(3) is applicable, at least for count one. This is not the first occasion on which a Court has “made an order imposing a sanction or taking an action in respect of a contravention” by the father of order 5(i)(d) of the consent orders certified by Justice Strickland on 27 February 2007.
Namely, the mother’s application for contravention orders (excluding the application filed on 12 July 2010) contained five allegations of contravention. The application was determined on 17 March 2011 by FM Brown (as he then was). His Honour’s orders of that day note:
The father admits count one in the contravention of previous orders contained in the mother’s contravention application filed 12 July 2010 and that the parties agree that a bond to be of good behaviour be imposed by the court in respect thereof and that the father will provide make up time as fixed by these orders to the mother in the October school holidays and upon the basis of the same the parties agree that the mother’s contravention application do otherwise stand dismissed.
The father notes in his written submissions that this admitted contravention was a contravention of order 5(i)(d) of the consent orders certified by Justice Strickland on 27 February 2007.
It is less clear whether s 70NFA(3) is applicable to the count two in this application for contravention orders. That count is a contravention of order 5(ii)(l) consent orders certified by Justice Strickland on 27 February 2007.
Subsection 70NFA(3)(a) of the Act speaks of the Court previously making an order imposing a sanction or taking an action in respect of a contravention by the respondent of “the primary order”.
The phrase “the primary order” is not defined in the Act. As such, it is unclear whether this refers to the entirety of a set of orders made by a certain judicial officer on a given date (eg, with reference to this matter, the entire set of consent orders certified by Justice Strickland on 27 February 2007) or if it refers more specifically to a specified order in a set of orders made by a certain judicial officer on a given date (eg, with reference to this matter, order 5(ii)(l) of the consent orders certified by Justice Strickland on 27 February 2007).
Regardless of which interpretation is the correct interpretation, I retain a discretion to apply the provisions of Subdivision E if I am satisfied that “it is more appropriate for [the] contravention to be dealt with under Subdivision E” (s 70NFA(4)).
The judgment of Cronin J in the Full Court of the Family Court of Australia decision of McClintock & Levier (2009) 233 FLR 179 at 219 confirms that I am “required by s 70NFA(4) to consider whether the matter should be more appropriately dealt with under Subdiv E.”
The mother submitted that I should apply Subdivision F. Her written and oral submissions variously describe the father’s contraventions as a “serious breach” that were “the second breach of the same Order.”
The Full Court of the Family Court of Australia (composed of Faulks DCJ, Kay and Penny JJ) in Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655 (5 July 2007) asserted at [50] that:
Given the consequences that potentially flow from treating the matter under subdivision F rather than subdivision E, we think it was incumbent upon the trial judge to spell out clearly what considerations enlivened the extra powers available under that section.
In that case, the Court was specifically dealing with the discretion provided in s 70NFA(2) of the Act. Subsection 70NFA(2) of the Act does not require the respondent to a contravention application to have previously been convicted of contravening an order of this Court without reasonable excuse. Rather, it requires the judicial officer to be satisfied that the respondent has “behaved in a way that showed a serious disregard of his or her obligations under the primary order.”
It is unclear if the Full Court in Elspeth & Peter; Mark & Peter; and John & Peter (Supra) also intended to assert that a judicial officer must provide reasons for not electing to exercise the discretion in s 70NFA(4) of the Act when there is a history of contraventions such that s 70NFA(3) of the Act applies, as is the case in this matter.
The Family Court of Australia (composed of Boland, Thackray and O’Ryan JJ) in Gravis & Major [2010] FamCAFC 239 (1 December 2010) discouraged engaging with the issue of whether a respondent to an application for contravention orders has shown the requisite “serious disregard” spoken of in s 70NFA(2)(b) of the Act by examining the contraventions in a “global manner” (see generally Boland, Thackray and O’Ryan JJ in Gravis & Major (Supra) at [161] citing Finn J in McClintock & Levier (2009) 223 FLR 179 at 192).
This reasoning is equally applicable to the consideration of whether or not to exercise the discretion available in s 70NFA(4) of the Act. The preferable approach is to individually examine each of the contraventions that have been found to have occurred without reasonable excuse and determine whether I am satisfied that it is more appropriate for that contravention to be dealt with under Subdivision E as opposed to Subdivision F.
Subsection 70NFA(4) is silent on what the relevant considerations are that would make it “more appropriate” to deal with a given contravention under Subdivision E as opposed to Subdivision F.
The subsection has also thus far evaded any extensive judicial treatment. In Gervasis & Purdy [2009] FamCA 255 (25 March 2009) at [27]–[29], I exercised the discretion in s 70NFA(4) to apply Subdivision E despite the applicability of s 70NFA(2) of the Act. However, my reasons for doing so were largely specific to the circumstances of that case.
Elsewhere, in Abud & Abud [2010] FamCA 1132 (15 November 2010), Cronin J commented at [67]:
67.Section 70NFA(4) provides that subdivision F does not apply if the Court is satisfied that the subdivision E provisions could more appropriately deal with the matter. Subdivision E, however, has very limited enforcement powers in terms of someone who has an ambivalent or obstructive view about compliance with orders. None of those provisions would seem likely to give any impetus to the husband complying with the existing orders.
It could not be said that the father has an “ambivalent or obstructive view about compliance with orders.” I am not satisfied that the broader armoury of orders available in Subdivision F, such as imprisonment or community service orders, are needed to deal with each of the counts of contravention under that subdivision as opposed to those available in Subdivision E.
Accordingly, I am satisfied that it is more appropriate to deal with both of the counts of admitted contravention under Subdivision E as opposed to Subdivision F.
I therefore will proceed to apply the provisions of Subdivision E. However, I draw the father’s attention to the comments of Faulks DCJ, Kay and Penny JJ in Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 1072 (13 September 2007) at [11] concerning Subdivision E of Division 13A of Part VII of the Act:
The singularly most significant result of an imposition of a penalty in this case is that any subsequent proven contraventions of the orders may attract the more serious penalties under Subdivision F of Division 13A of Part VII of the Act including the imposition of a fine or a sentence of imprisonment (see s 70NFA(3)(a)).

Consideration of what orders to make, if any, under Subdivision E of Division 13A of Part VII of the Act

At the outset of this exercise, it is helpful to refer to the comments of Cronin J in McClintock & Levier (Supra) at 216 that “[t]he focus of a Court therefore in dealing with a contravention application under Div 13A must be in making orders which will enforce future compliance with its orders” (to similar effect see Coleman J at 203, cf Finn J at 189). This conclusion is reinforced upon consideration of s 70NAA of the Act, which states:
70NAASimplified outline of Division
(1)This division deals with the powers that a Court with jurisdiction under this Act has to make orders to enforce compliance with orders under this act affecting children.
The father’s written submission on the appropriate orders to make arising out of this application for contravention orders is as follows:
… A bond is appropriate under subsection 70NEB(d) and I have previously consented to and complied with such a bond.
Under 70NBA(2), as regards penalties under Subsection E or F, the court is to have regard to the best interests of the children. I submit that it is not in the interests of the children to make punitive orders as the dispute was genuine, contraventions incurred by both parties and those contraventions are not likely to reoccur once the mothers obligations regarding the orders in 5(i)(b), 5(i)(c), 5(i)(d) and 5(i)(g) are once again explained under 70NAE(3), because my actions were triggered only by the contraventions.
Under 70NEB(1b), the mother may be granted compensation time. I submit that given that the mother has also been found guilty on 4 counts of contravening orders (but granted a reasonable excuse) and that my own contraventions were triggered by those contraventions, and her Honour has determined on the balance of probabilities as opposed to beyond reasonable doubt as regards my actions, that orders under 70NEB(1)(da), 70NECA(3)(a), 70NFB(2)(a)/(d)/(e), 70NFF(3)(a) are not appropriate.
The mother submits, with reference to the orders available in Subdivision F as opposed to Subdivision E, that orders for a bond, a fine, a sentence of imprisonment, the repayment of expenses incurred by the mother, a community service order and compensatory time are appropriate. I note that some of these orders are not available under Subdivision E.
I turn first to the issue of whether an order requiring the father to enter into a bond is appropriate given that both parties submit that it is. Subsection 70NEB(1)(d) empowers me to require the father to enter into a bond in accordance with s 70NEC of the Act. The following sections expand upon the power afforded to me by s 70NEB of the Act:

SECT 70NEC

Bonds
(1)This section provides for bonds that a court may require a person to enter into under paragraph 70NEB(1)(d).
(2)A bond is to be for a specified period of up to 2 years.
(3)A bond may be:
(a)with or without surety; and
(b)with or without security.

(4)The conditions that may be imposed on a person by a bond include (without limitation) conditions that require the person:
(a)to attend an appointment (or a series of appointments) with a family consultant; or
(b)to attend family counselling; or
(c)to attend family dispute resolution; or
(d)to be of good behaviour.

(5)If a court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person, in language likely to be readily understood by the person:
(a)the purpose and effect of the proposed requirement; and
(b)the consequences that may follow if the person:
(i) fails to enter into the bond; or
(ii) having entered into the bond--fails to act in accordance with the bond.

SECT 70NECA

Procedure for enforcing bonds
(1)If a court has made an order under paragraph 70NEB(1)(d) requiring a person to enter into a bond in accordance with section 70NEC, the following provisions have effect.
(2)If the court (whether or not constituted by the judge or magistrate who required the bond to be entered into in accordance with section 70NEC) is satisfied that the person has, without reasonable excuse, failed to comply with the bond, the court may take action under subsection (3).
(3)The court may:
(a)without prejudice to the continuance of the bond entered into in accordance with section 70NEC, impose a fine not exceeding 10 penalty units on the person; or
(b)revoke the bond entered into in accordance with section 70NEC and, subject to subsection (4), deal with the person, for the contravention in respect of which the bond was entered into, in any manner in which the person could have been dealt with for the contravention if:
(i) the bond had not been entered into; and
(ii) the person was before the court under section 70NEB in respect of the contravention.

(4)In dealing with the person as mentioned in paragraph (3)(b), the court must, in addition to any other matters that it considers should be taken into account, take into account:
(a)the fact that the bond was entered into; and
(b)anything done pursuant to the bond; and
(c)any fine imposed, and any other order made, for or in respect of the contravention.

I consider that it is appropriate to make an order requiring the father to enter into a bond. I have reached this conclusion by considering each of the two counts of contravention individually as opposed to globally (see Finn J in McClintock & Levier (Supra) at 192). Whilst counts of contravention are to be considered individually, I note that it is acceptable for an order in response to more than one count of contravention to be “encapsulated” within one overarching order as opposed to making a separate order for each contravention (see Cronin J in McClintock & Levier (Supra) at 220).
The father has not been found guilty of contravening any orders since these two counts of contravention occurred. Once again, I note that that “[t]he focus of a Court therefore in dealing with a contravention application under Div 13A must be in making orders which will enforce future compliance with its orders” (of Cronin J in McClintock & Levier (Supra) at 216, to similar effect see Coleman J at 203, cf Finn J at 189).
I am satisfied that the potential of facing a fine or various other serious consequences should he breach the bond I will require him to enter into will ensure that the father continues to comply with orders of this Court. Any future contraventions by the father may attract Subdivision F as opposed to Subdivision E of the Division 13A of Part VII of the Act.
The order I will make under s 70NEB(d) is that the father is required to enter into a bond in accordance with s 70NEC of the Act. The bond is to be for a period of two years (s 70NEC(2) of the Act). The bond is to be imposed without surety (s 70NEC(3)(a) of the Act). The bond is to be imposed with security of $1,000.00 (s 70NEC(3)(b) of the Act). The sole condition that will be imposed on the father by the bond is that he is to be of good behaviour during the period of the bond (s 70NEC(4)(d) of the Act). Being of good behaviour requires the father to comply with all current and future orders of this Court.
Pursuant to s 70NEC(5) of the Act, I am required to explain to the father, “in language that is likely to be readily understood” by him, “the purpose and effect of the proposed requirement” and “the consequences that may follow” if the father “fails to enter into the bond” or “fails to act in accordance with the bond.” That explanation will be undertaken at the hearing when I hand down this judgment.
I now turn to consider whether any other order under Subdivision E is necessary to ensure the father’s future compliance with orders of this Court. In addition to requesting that the father be required to enter into a bond, the mother also sought orders for a fine, a sentence of imprisonment, the repayment of expenses incurred by the mother, a community service order, and compensatory.
Community service orders and sentences of imprisonment are orders that are available in Subdivision F of Division 13A of Part VII of the Act (see respectively s 70NFB(1)(a) and s 70NFB(1)(f) of the Act). However, they are not available in Subdivision E of the same.
The orders that are available in Subdivision E of Division 13A of Part VII of the Act are as follows:
(a)Orders requiring a person to attend a post-separation parenting program (s 70NEB(1)(a));
(b)Orders for compensatory time spent for the applicant and a child or children (s 70NEB(1)(b));
(c)Orders adjourning the proceedings to allow either or both of the parties to apply for a parenting order that discharges, varies or suspends the existing primary order that was contravened or that revives an earlier parenting order (s 70NEB(1)(c));
(d)Orders requiring the respondent to enter into a bond (s 70NEB(1)(d));
(e)Orders requiring a respondent who fails to enter into a bond without reasonable excuse to pay a fine (s 70NEB(1)(da));
(f)Orders requiring the respondent to compensate the applicant for expenses reasonably incurred as a result of the contravention (s 70NEB(1)(e)); and
(g)Orders for costs (s 70NEB(1)(f) and (g)).

Section 70NEB includes a note that states that “the court may also vary the primary order under subdivision B.” Section 70NBA is the relevant section of that subdivision. I will consider potential variations to the existing parenting orders later in this judgment.
I do not consider that any other order under Subdivision E is necessary or appropriate with regards to the two counts contained in this application for contravention orders.
The mother did not seek an order requiring the father to attend a post-separation parenting program and I do not believe such an order would be beneficial to either of the parties.
The inappropriateness of an order for compensatory time is considered below in regards to the father’s application for contravention orders. In summary, the difficult and tense relationship between these parties leads me to conclude that any orders for compensatory time would not be in the best interests of the children.
Orders adjourning the proceedings to allow either or both of the parties to apply for a parenting order that discharges, varies or suspends the existing primary order that was contravened or that revives an earlier parenting order will not be necessary given the variations that I will be making to the parenting orders pursuant to s 70NBA of the act. Those changes will be discussed later in this judgment.
The mother asks that the father be fined, yet she does not specify why this should happen with reference to the goal of Division 13A of the Act, that being to ensure compliance with the orders of this Court. As I have already stated, I believe requiring the father to enter into a bond will adequately fulfil the purpose of Division 13A.
The mother seeks “all of [her] costs incurred including but not limited to hotel accommodation, lost time, care expenses and costs of preparing and attending court.” It is unlikely that these expenses would be compensable under s 70NEB(1)(f) and s 117 of the Act as “costs” as the mother was unrepresented throughout the currency of this application (see my reasons below regarding the mother’s second application for contravention orders).
It is possible that the expenses she claims would be recoverable under s 70NEB(1)(e) of the Act as expenses reasonably incurred as a result of the father’s contravention. Yet the expenses the mother claims are in no way quantified or proven with reference to any receipts or other documentation. Any order I make for the payment of these expenses by the father would necessarily be open-ended and cause further litigation between the parties. I do not consider such an order would be necessary to ensure future compliance with orders by the father.
As such, the only order I will make with regards to this application is the order requiring the father to enter into a bond as outlined above in this judgment.

Consideration of the mother’s second application for contravention orders

This application was dismissed. I made orders pursuant to s 70NBA of the Act consequent upon that dismissal. Those orders settled the children’s living arrangements for the 2012/2013 Christmas school holidays. The arrangements for future Christmas school holidays periods remain unsolved. Those will be dealt with later in this judgment.
As Subdivision C of Division 13A of the Act is applicable, the only other orders available to me in respect of this application are orders for costs pursuant to s 70NCB. As outlined in the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), the purpose of this section is “to defer people from making repeated contravention applications which aim to harass or inconvenience the other party.”
I do not believe that s 70NCB(2) of the Act requires me to consider making an order under s 70NCB(1) of the Act. The mother’s most recent application for contravention orders (excluding the application filed contemporaneously with this application) was that filed on 12 July 2010. That application contained five allegations of contravention. The application was determined on 17 March 2011 by FM Brown (as he then was). His Honour’s orders of that day note:
The father admits count one in the contravention of previous orders contained in the mother’s contravention application filed 12 July 2010 and that the parties agree that a bond to be of good behaviour be imposed by the court in respect thereof and that the father will provide make up time as fixed by these orders to the mother in the October school holidays and upon the basis of the same the parties agree that the mother’s contravention application do otherwise stand dismissed.
That outcome, in my opinion, takes the 12 July 2010 application for contravention orders outside the circumstances spoken of in either 70NCB(2)(b)(i) or (ii). As such, I find that I am not compelled to consider making an order under s 70NCB(1).
Section 70NCB does not derogate from the power to award costs contained in s 117 of the Act (see generally my judgments in Tasman & Tisdall [2008] FamCA 458 (20 June 2008); Yates & Turner [2009[ FamCA 887 (2 September 2009); and Pickering & Pickering (No. 4) [2010] FamCA 981 (29 October 2010) and the judgment of Young J in Skinner & Cluny [2011] FamCA 429 (10 June 2011)).
The general rule in proceedings under the Act is that each party is to bear their own costs (s 117(1) of the Act).
Subsections 117(2)–(2A) of the Act provide an exception to that general rule. Those subsections provide:
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.”
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer;
(g)such other matters as the court considers relevant.
Subsection 117(4) and (5) concern the costs of Independent Children’s Lawyers and interveners and as such are inapplicable to the matter at hand.
The husband did not make any submissions on the applicability of any costs arising out of this application for contravention orders. It is unlikely that he would have accrued any compensable costs given the fact that he has been unrepresented throughout the currency of this application. As such, I decline to make any order for costs under s 117 of the Act.
The only further order I will make in regards to this application for contravention orders is that the application is dismissed.

Consideration of the father’s application for contravention orders

The mother admitted all four counts of contravention contained in this application. I subsequently found that the mother had succeeded in establishing a reasonable excuse on the balance of probabilities for all four counts (See generally [2013] FamCA 283, [70]-[76]). Subdivision D of Division 13A of the Act is therefore applicable.
The mother submits that I should not make any orders pursuant to Subdivision D. The father’s written submissions regarding this application for contravention orders contains the following paragraph:
Subdivision D still applies as regards the mother’s contraventions given a reasonable excuses have been granted. Under s 70NDB(1c) [sic], I ask that the children be compensated for lost time with me and that I be compensated for the costs incurred by the mothers actions as detailed in paragraphs 4, 5, 6, 7, 8 of my affidavit filed 16^th July 2012. These penalties are necessary to prevent further contraventions by the mother on the basis of her apparent repeated and unaddressed inability to understand court orders.
The father also seeks that order 5(i)(d) of the Consent Orders certified by Justice Strickland on 27 February 2007 be amended, presumably pursuant to s 70NBA of the Act. Potential changes to the orders that were the subject of this application for contravention orders pursuant to s 70NBA of the Act are considered later in this judgment.
I turn first to consider whether an order for compensatory time is appropriate. I am required to consider making an order compensating the father for the time lost as a result of the mother’s admitted contraventions (s 70NDB(1) of the Act). However, I must not make such an order if it would not be in the best interests of the children to do so (s 70NDB(2) of the Act).
In paragraph [6] and [7] of the father’s affidavit filed 16 July 2012, the father states that he seeks “compensation in the form of the mothers next two Easters with the children, commencing after school on Maundy Thursday until 8.50am on the following Tuesday” and “an additional 5 nights with the children.”
The father somewhat confusingly conceded in his written and oral submissions that “the net effect of the 6 related contraventions and penalties already incurred is that the children have had equal time over school holidays in 2010 and 2012, as is the stated intention of the school holiday orders, and we have also had alternate Easters.” The father goes on to “therefore ask that the children not be further affected by contact related penalties and any unintended side effects / resentment.” To similar effect, the father states that “Under s 70NDB(2) and 70NEB(5) (or 70NFB(2c)), further compensatory orders as regards contact time are not necessary because all such compensatory orders should cancel each other out, or would be contrary to the intention of the orders for equal time, and are therefore not in the best interests of the children.”
It is unclear whether the father is arguing that no orders for compensation time are necessary to achieve the intention of the orders, or that only the compensation time orders that he is seeking are necessary to achieve the intention of the orders and that any compensation time orders that the mother may inclined to seek would go against that intention. The following exchange between the father during the hearing clarifies this inconsistency:
HER HONOUR:   Sorry, no, that's in relation to the mother's contraventions. You are not seeking any orders in relation to the mother's contraventions?
MR [ONGAL]:   No, I - as I detailed here, I'm seeking compensation for      the costs that I incurred as a result of her contraventions. I'm seeking compensatory contact. It's right that the mother should be able to seek compensatory contact but what I note at the end is that on the basis of the intention of the order 5(1)(d) that compensatory contact should    cancel out and essentially that no compensatory contact is necessary because the parties have had alternative Easters as a result of these      contraventions and the children and the parties have had contact as appropriately accorded to order 5(1)(d), so there is no need to act.
HER HONOUR:   So in summary though and as far as the compensations are concerned, are you saying they are cancelling each other out?
MR [ONGAL]:   Yes.
I am inclined to agree with the father that any orders for compensatory time arising out of this application for contravention orders would not be in the best interests of the children. Firstly, I find that it would be beyond these parties to cope with any orders for compensatory time in a responsible and adult manner. This parenting dispute is nearly a decade old. I find that any benefit to the parties in spending any compensatory time with the father would be far outweighed by the increased risk of applications for contravention orders or enforcement proceedings arising out of that compensatory time (s 60CC(3)(l)). There would also be practical difficulties in arranging such compensatory time given the distance between the two parties’ households (s 60CC(3)(e)).
As such, I decline to make any orders for compensatory time pursuant to s 70NDB of the Act.
Orders for costs are available against the father pursuant to s 70NDC(1) of the Act as I did not make an order for compensatory time. I do not believe that s 70NDC(2) requires me to consider making such an order. The father’s most recent application for contravention orders was that filed on 25 July 2011. That document contained two allegations of contravention. The application was struck out by Registrar Paxton on 9 August 2011 as the father had not sought leave to file the application in accordance with the order of Justice Burr dated 16 April 2008.
That outcome, in my opinion, takes the 25 July 2011 application for contravention orders outside the circumstances spoken of in either s 70NDC(2)(b)(i) or (ii). As such, I find that I am not compelled to consider making an order under s 70NDC(1).
However, s 70NDC does not derogate from the power to award costs contained in s 117 of the Act (see generally the reasons of Cronin J in Pearce & Cole (No. 4) [2009] FamCA 1221 (9 December 2009)). Section 117 has been relevantly extracted earlier in this judgment.
The mother did not seek the costs of this application in her written or oral submissions. The fact that she was unrepresented throughout the proceedings suggests it is unlikely that she would have any compensable costs. I make no order for costs against the father pursuant to s 117 in regards to this application.
The father was also unrepresented throughout the currency of this application for contravention orders. Yet he seeks costs as outlined in his written and oral submissions and in paragraphs [4]–[8] of his affidavit filed 16 July 2012. The costs spoken of in those paragraphs are as follows:

Item

Alleged cost

“Wasted travel costs of a Rex flight to [Town W]” in April 2010

$156.00

“The cost of petrol … for a drive back to Adelaide” in April 2010

$80.00

“Lost travel costs ... for a cancelled flight on a Thursday to [Town W]” in April 2012

$124.00

“The time and costs … for two 4 hours drives to collect the children in [Town W]”

$160.00

The father’s “wife lost out … work income due to her need to take time off on a Tuesday to look after our two children, whilst [the father] travelled to [Town W]” in April 2012

$225.00

TOTAL

$745.00

A cursory examination of these items reveals that the husband is not seeking costs as they are typically understood in the legal lexicon, that being, the costs incurred in retaining lawyers in preparation for and during the course of legal proceedings.
However, the joint judgment of Holden CJ, Coleman and Chisholm JJ in B & P [2000] FamCA 392 (5 May 2000) at [39] held that orders for costs within s 117 of the Act “can include disbursements, or out of pocket expenses, paid directly by an unrepresented litigation”.
The joint judgment of May, Thackray & Benjamin JJ in Oscar & Traynor [2008] FamCAFC 158 (27 October 2008) noted at [85] that the “expenses which have been found to be properly recoverable” pursuant to s 117 of the Act include “court fees”, “transcript costs”, “expenses for serving documents”, “freedom of information fees”, “fees for searching registers, such as an ASIC search fee”, “appeal book binding”, “disbursements incurred by a litigation guardian” and “incidental expenses in relation to photocopying, postage and telephone and facsimile transmission.”
The joint judgment in Oscar & Traynor (Supra) continued at [87], listing “travelling costs”, “parking costs”, and “meals” as examples of expenses have been held not to be recoverable under s 117 of the Act.
Clearly, the expenses claimed by the husband are not recoverable under s 117 of the Act in light of the comments made in the joint judgment in Oscar & Traynor (Supra). The items the father is seeking are costs caused as a result of the contravention, yet an order for s 117 could only compensate costs caused as a result of the litigation arising out of the contravention.
What the father is really seeking is an order akin to that available in s 70NFB(2)(f) of the Act. That subsection provides for an order requiring the person who committed a contravention without reasonable excuse to compensate the applicant for some or all of the reasonably incurred expenses as a result of the contravention. That order is only available where Subdivision F of Division 13A of Part VII of the Act is applicable. Here, Subdivision D is applicable. There is no comparable power to make such an order in Subdivision D.
Accordingly, I make no order for costs against the mother pursuant to s 117 in regards to this application.
Subsection 70NAE(3) of the Act requires me to explain to the mother, “in language likely to be understood by” her, “the obligations imposed on [the mother] by the order and the consequences that may follow if [the mother] again contravenes the order.” That explanation will be undertaken at the hearing when I hand down this judgment.
As such, the only order I will make in regards to this application for contravention orders is that the application is dismissed.

Consideration of s 70NBA of the Act

I made an order on 10 October 2013 that each of the parties were to file an affidavit annexing the final orders that they were seeking by 22 October 2013. The mother filed her affidavit on that date, as did the father. The father’s affidavit refers back to affidavits filed by him on 16 July 2012 and 9 October 2013. I have also had reference to the case outlines of both parties as tendered on 4 September 2013.
Variations of parenting orders made pursuant to s 70NBA of the Act are approached differently to orders for compensatory time made under Subdivision E or Subdivision F (see generally the distinctions drawn by Murphy J in the decision of McLory & McLory [2010] FamCA 305 (23 March 2010)). The former are to be approached “no differently to any other application for parenting orders” (Warnick J in Sandler & Kerrington [2007] FamCA 479 (24 May 2007) at [48]). Such variations may not be “properly effected in a more summary way than, or upon an enquiry abbreviated more than, is appropriate to an application for variation outside of Division 13A” (Ibid at [41]). This approach was later acknowledged and adopted by the Full Court of the Family Court of Australia (composed of Finn, Warnick and Boland JJ) in Irvin & Carr [2007] FamCA 492 (29 May 2007) at [68].
The considerations outlined in the Full Court of the Family Court of Australia decision of Rice & Asplund (1979) FLC 90-275 will be relevant to this exercise where existing orders are in place (see, eg, the approach of Warnick J in Sandler & Kerrington (Supra) at [49]–[54]). In Rice & Asplund (supra), Evatt CJ (Pawley SJ and Fogarty J concurring) stated at 78,905–78,906:
The principles which, in my view, should apply in such cases are that the Court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for, as Mr. Broun submitted, change is an ever present factor in human affairs. Therefore, the Court would need to be satisfied by the applicant, that, to quote Mr. Justice Barber, there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman, at page 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the Court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the Court in reviewing a custody order will vary from case to case.
Once the Court is satisfied that there is a new factor or change in circumstances, then the issue of custody is to be determined in the ordinary way. The Court must apply the principles of s.64 and weigh up the factors for and against the proposals of each party, having regard to the welfare of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the Court, the reason for that decision. The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors. While the Court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier Court's assessment of the parties or views as to the best interests of the child. These are matters which cannot be determined by any fixed or absolute standard. (Emphasis added)

Consideration must be given to the “sufficiency of any change in circumstance” that justifies the alteration of existing parenting orders (Warnick J in Sandler & Kerrington (Supra) at [49]). In that case, Warnick J acknowledged that the act of contravening the orders themselves may provide the sufficient change in circumstance necessary to justify altering existing parenting orders.
Varying the parenting orders pursuant to s 70NBA of the Act to incorporate definitive changes to the existing parenting orders, as opposed to one-off compensatory changes pursuant to s 70NEB(1)(b) or s 70NFB(1)(c) of the Act, requires a “fulsome consideration of all of the relevant factors” including “all the relevant s 60CC factors and in particular the question of why, an order having been made, it was then appropriate that there be a “final change”” (Finn, Boland and Warnick JJ sitting as the Full Court of the Family Court of Australia in Dobbs & Brayson [2007] FamCA 1261 (25 October 2007) at [130]).
Variations that are “of a minor nature not much more than tinkering” may call for a less meticulous consideration of the s 60CC factors (Coleman J in Spencer & Verity [2012] FamCAFC 210 (14 December 2012) at [85]). Conversely, “there may be cases where a much more comprehensive or even exhaustive consideration of “best interests” would be necessary or appropriate” (Coleman J in Spencer (Supra) at [95]).
Most of the existing parenting orders will be continued and those which are changed will be discharged with new orders made. The intention is to have all current parenting orders clearly set out in one document. Any substantive changes are made taking into account the best interests of the children as the paramount consideration.
There are eight folders of material in this matter. I have examined all of them to ascertain which orders should continue, be discharged or varied.
The reference to “joint parental responsibility” in Order 3 of the Orders of 27 February 2007 has been replaced with a reference to “equal shared parental responsibility.” This change does not in any way vary the content of the initial order. Rather, it is a mere updating of the terminology.
Order 4 of the Order of 27 February 2007 relates to the father spending time with the children. The wording is updated. It is not changed.
Order 5 in its totality was varied by Order 6A and 6B of the Orders of Justice Burr dated 4 June 2008 such that references to “9.00 am” or “commencement of school” were substituted with a reference to “8.25 am” and references to “conclusion of school” were substituted with a reference to “3.25 pm.”
I now turn to the specific sub-orders in Order 5.
The first change I will make to Order 5 is that the Order will now refer to both children. It is no longer necessary that the children should be subject to separate orders concerning the amount of time they are to spend with their father.
Order 5(i)(a) refers to a once-off period of time for the children with the father. It is no longer applicable.
Order 5(i)(b) currently provides for the children to spend time with the father from 3.25 pm on Thursday until 9.00 am on Friday each alternate week. The father would have that time commence at 9.00 am on Thursday. The mother would amalgamate this order and Order 5(i)(c) such that the children spent time with the father from 3.25 pm Friday (or 8.50 am in the event of a public holiday) until 8.00 pm on the following Sunday. I am not persuaded that either of these changes are necessary to further the best interests of the children. As such, the order will remain unchanged.
Order 5(i)(c) currently provides for the children to spend time with the father from 3.25 pm Thursday until 9.00 am Monday each alternate week (ie in the weeks in which 5(i)(c) is inoperative). The time commences at 9.00 am on Thursday if the children are not at school on that day and concludes at 9.00 am on the Tuesday if the children are not at school on the Monday. The father would have that time commence at 9.00 am on Thursdays. The mother would amalgamate this order and Order 5(i)(b) such that the children spent time with the father from 3.25 pm Friday (or 8.50 am in the event of a public holiday) until 8.00 pm on the following Sunday. Once again, I am not persuaded that either of these changes are necessary to further the best interests of the children. As such, the order will remain unchanged.
Order 5(i)(d) currently provides for the children to spend the first half of the April, June/July and September/October school holidays in each year from 3.25 pm on the last Friday of term until 5.00 pm on the second Saturday of each such period. Orders 5(i)(b) and 5(i)(c) are said to be suspended during such school holiday periods.
The father proposes amendments that would see the children spend time with him from 2.00 pm on the last day of school term until 2.00 pm on the second Friday of each such period, reserving for the mother a second part of each such school holiday period from 2.00 pm on the second Friday until 2.00 pm on the third Friday, with the intent that the time spend under the Order 5(i)(b) and 5(i)(c) be suspended from 2.00 pm on the last day of the school term until 2.00 pm on the third Friday.
The mother suggests that the father’s time with the children in the shorter school holiday periods should start from 2.25 pm on the last day of the school term until 5.00 pm on the second Saturday of each such period with the Orders that provide for the fathers regular weekend contact with the children suspended during that period. The time that the children spend with the father during the shorter school holidays periods would also be suspended where it was the mother’s year to have the children for Easter.
I prefer the mother’s suggested order for these time periods as it involves fewer handovers and is thus less likely to cause confusion and potential litigation between the parties.
Order 5(i)(e) was a non-ongoing order relating to the Christmas periods in 2007-2008 and 2008-2009.
Order 5(i)(f) provided for the children to spend the first half of the 2009/10 Christmas school holiday period, and each alternate year thereafter, with their father from 3.25 pm on the last Friday of term until 5.00 pm on the day being the midpoint of such period, with the intent that each party was to have equal time during the Christmas school holiday period. This order was suspended by Order 1 of the Orders of FM Brown (as he then was) on 26 November 2010. For whatever reason, that suspension was never removed. The order was formally discharged by me on 20 December 2012 and replaced with an interim order for the 2012-2013 Christmas school holiday period.
I will make orders for the children to spend the alternating halves of each Christmas school holiday period with the father, with the intention being that the parties shall have equal time with the children during the Christmas school holiday period. Such an order will minimise handovers and generally result in minimal potential for conflict between the parents.
Order 5(i)(g) provides for the children to spend time with the father from 9.00 am on Good Friday on 2007 until 9.00 am on the following Tuesday and each alternate Easter thereafter.
The father provides a long detailed modification to this order in his affidavit filed 13 February 2013. The mother proposes extending the time from 9.00 am on Good Friday back to 3.25 pm Maundy Thursday and otherwise leaving the order as it is (whilst disabling the orders that provide for the father’s regular weekly contact with the children during the Easter weekend).
I prefer the mother’s proposed order for Easter. It is simpler and thereby less likely to cause confusion and potential further litigation.
Orders 5(i)(h) and 5(i)(i) provided a mechanism for the children to spend time with each of their parents in the period immediately before and after Christmas (ie between 23 December and 27 December). Those orders were suspended by Order 1 of the Orders of FM Brown (as he then was) on 26 November 2010. For whatever reason, that suspension was never removed. The orders were formally discharged by me on 20 December 2012 and replaced with an interim order for the 2012-2013 Christmas school holiday period.
The mother suggests carving out of the arrangements for the Christmas school holidays period a block of ten days (20 December – 30 December) which would be split between the parties each year, with changeovers at 4.00 pm on 25 December. The father suggests simply splitting the Christmas school holidays period in half and alternating that half each year without special provision for the Christmas period. The father’s proposal is less likely to cause disruption, confusion and litigation. The parties may wish to make arrangements, in writing, for Christmas celebrations.
Order 5(i)(j) provided a mechanism for the child L to spend time with both of his parents on his birthday. This order was discharged by Order 9 of the Orders of Justice Burr dated 4 June 2008. I do not know why that Order was discharged. Neither of the sets of proposed orders of the parties suggests that it be reactivated in its initial form or in a modified form. It will be in the best interests of both children that they have time with each parent on each birthday if that can be arranged by written agreement without causing further litigation or disruption. However no orders will be made.
Order 5(i)(k) provided for the children to spend Father’s Day with their father from 9.00 am to 5.00 pm and reserves the same time for the mother on Mother’s Day.
The father’s proposed orders set out a regime for Mother’s Day and Father’s Day such that the father’s alternating weekend contact as provided for in the Orders 5(i)(b) and 5(i)(c) would be suspended on the weekends including Father’s Day and Mother’s Day, such that the children would spend the Father’s Day weekend with their father from 3.25 pm on Friday until 8.50 am on the following Monday and the same time on the Mother’s Day weekend with their mother. The mother’s proposed orders do not make any provision for Father’s Day. The proposed orders ask that the children’s time with the father be suspended such that the children are in the care of the mother from 8.50 am until 5.00 pm on Mother’s Day each year.
It is in the children’s best interests that they should spend those days with their respective parent. It would not be practicable to merely refer to 9.00 am to 5.00 pm on Father’s Day and/or Mother’s Day from the other parent’s weekend given the distance between the parties’ residences.
I turn now to Order 5(ii)(a)-(l) of the consent orders certified by Justice Strickland on 27 February 2007. I note that Order 5(ii)(l) was varied by Orders 7 and 10 of the Orders of Justice Burr dated 4 June 2008. Order 5(ii)(e) was varied by Order 8 of the same Orders of Justice Burr.
Order 5(ii)(a)-(l) are no longer necessary.
Order 6 provided that all handovers that do not take place at school are to occur inside the Town W Police Station between the mother and father only save in the case of illness, accident or emergency when either party may nominate another person to attend handovers
This Order was varied by Order 5 of the Orders of Justice Burr dated 4 June 2008. The effect of the variation was that the father was to leave the police station and its vicinity immediately upon handing over or collecting the children and the mother was to remain inside the police station for 5 minutes after handover. The variations also provided that no member of the mother’s family was allowed to be present at handover, either inside or outside the police station or within 100 metres of the police station except in the case of illness, accident or emergency when either party may nominate another person to attend handovers.
The father’s proposed orders do not suggest any changes to this Order. The mother’s proposed orders omit the restriction on the mother’s family being present at handover, either inside or outside the police station or within 100 metres of the police station.
There is no compelling reason that this Order should be changed in the manner suggested by the mother. The order will remain in its form as amended by Justice Burr on 4 June 2008.
Order 7 provided that each party was at liberty to attend all school fixtures and events to which parents are ordinarily invited. Both parties’ sets of proposed orders suggest this order should continue unchanged. I agree.
Order 8 provided that each party was to keep the other informed as to the names and contact details of the children’s medical and health professionals noting that the father will ensure that the said children attend the same general practitioner as nominated by the mother.
The mother suggests this Order should continue unchanged. The father suggests the inclusion of the words “in [TownW]” after the words “the same general practitioner” and before the words “as nominated by the mother.” I see no reason to include this change. The mother lives in Town W. It is entirely likely that any general practitioner she nominates will also live in Town W. The order will remain unchanged.
Order 9(a) restrained the parties from videotaping the other at school or at handovers or school fixtures. Both parties suggest this order should continue unchanged. I agree.
Order 9(b) restrained the parties from denigrating the other party or discussing proceedings pursuant to the Act in the presence of or in the hearing of the children or permitting any other person to do so. Both parties want this order to expand such that the parties are also restrained from denigrating the partner of the other parent or any children of the other parent’s partner and from permitting any other person to do so. That is a sensible extension that is obviously in the best interests of the children. I will make changes in accordance with the wishes of the parties.
Order 9(c) restrained the parties from causing or permitting the children to be known by any surname other than “Materns-Ongal.” Both parties want this order to continue. I agree.
Order 10 provided that the father is to ensure that the child L (and where appropriate the child M) attend Thursday evening football training during school term times and the mother be at liberty to attend.
The father suggests that this order be modified such that the parties and the children are to discuss, and the parties are to support when the children are in their care, the attendance of the children at agreed sports training, sports matches and sports special events in both Town W and Adelaide.
The mother suggests that the order be varied such that the father is to ensure that the children attend Friday evening sports training during school terms upon the condition that the mother do inform the father on the giving of seven days’ notice in writing of any change or any expressed desire for change by the said children.
I prefer the mother’s suggested amendments to this order as it is clearer and requires less discussion and thus less opportunity for disagreement between the parties.
Order 11 discharged the appointment of the Independent Children’s Lawyer. For obvious reasons, it need not be made again.
Order 12 dismissed and removed all applications of the parties from the pending cases list. That order also need not be made again.
I now turn to the Orders of Justice Burr dated 16 April 2008. Orders 9 and 12 were ongoing orders. As such, I will continue them.
Order 9(a) restrained the parties from seeking to alienate the children from the other parent. Both parties want this Order to continue. I agree.
Order 9(b) prevented the parties from abusing or denigrating the other parent to the children or in the presence of the children and from permitting any other person to do so. That order reflects Order 9(b) of the consent orders certified by Justice Strickland on 27 February 2007 and therefore need not be made again.
Order 9(c) prevented the parties from abusing or denigrating the partner of the other party or any children of the other parent’s parent and from permitting any other person to do so. That order reflects the modification I made to Order 9(b) of the consent orders certified by Justice Strickland on 27 February 2007 and therefore need not be made again.
Order 9(d) restrained the parties from telephoning the other, upon noting that communication between the parties was confined to issues concerning the children and is to be restricted to email and SMS communication. This Order was discharged by Justice Burr on 8 March 2012. This suspension was apparently meant to be temporary, yet the order has not been reactivated by any subsequent order. Both parties suggest that this order should be remade. Making this order again would be in the best interests of the children.
Order 9(e) restrained the parties from filing any further Applications, Affidavits or other materials without first obtaining leave of a Judge of this Court to do so. Over 100 documents have been filed since the making of the order. Clearly, it has not served its purpose in stemming the flow of litigation between the parties.
The father wants this order revised as “it is not in the proper form, has and is resulting in significantly higher load on the parties and the Courts as regards proper and necessary applications, as well as unnecessary delay in the filing and progress of matters.” The order is said to have “previously and unfortunately prevented urgent requests for injunctive and recovery orders from the father to prevent and curtail the contraventions by the mother in April 2012”.
He instead seeks “an order that still provides the Family Court with the ability at the first hearing (urgent if necessary) to grant or refuse leave to proceed with any such applications that are filed in Family Court, whilst maintaining the necessary prior leave of the Family Court to then file in the Federal Magistrates Court.”
The mother wants the order to continue.
The order will continue, but in a slightly modified form to prevent any confusion to the parties’ or to court personnel. It is in a similar form as Orders 21 to 24 of the Orders of Justice Murphy made in Brown & Crawford [2009] FamCA 96 (19 February 2009) and Orders 11(a)-(e) of the Orders of FM Baumann (as he then was) made in Gillman & Taggart [2012] FMCAfam 1226 (29 October 2012) and provides a process by which applications for leave to file documents can be assessed quickly and effectively in a hearing in chambers. Importantly, the respondent named in the proposed application will not be aware of the proposed filing of the application unless leave is granted. This will prevent “tit-for-tat” filing of Applications for Contravention Orders and the like.
Order 12 restrained the maternal grandmother and a Mr D Materns from attending at the handovers except in the event of an emergency. This order was discharged with the consent of the parties on 4 June 2008. Neither party wants this Order remade. I agree. The order will not be made again.
I now turn to the Orders of Justice Burr dated 4 June 2008. In particular, I will consider the utility of reactivating order 12, over which some confusion has arisen between the parties.
Order 12 restrained the parties from attending at any weekend sporting or other social commitments of the children during such times as the children are not in their primary care pending the conclusion of a mediation session as arranged by the then Independent Children’s Lawyer.
The mother was of the view that the Order was still operative. The father said it was not. Both parties sets of proposed orders seek to reactivate the order. I do not see that as necessary. By all accounts, these children are extremely talented young boys. I understand that they are in with a chance at being selected to represent the State of South Australia. The parents should be commended for raising such dedicated and talented young boys, and should be able to enjoy and encourage the children during their sporting pursuits.

Other orders exist that restrain the parents from denigrating each other or the other parties’ partner or children, from seeking to alienate the children from the other parent, from videotaping the other party, and even from communicating verbally with each other. I believe these orders are sufficient to protect the best interests of the children whilst also allowing those interests to be furthered by having both parents involved in what is obviously an important activity in the children’s lives.
I have not considered the set of orders that were allegedly (but not actually) made on 27 October 2011. By all accounts, those orders were apparently to be made with the consent of the parties. However, they were not made. Given that both parties’ sets of proposed orders are more recent than that date, I have assumed that any orders or variations to orders that the parties’ are seeking are reflected in those sets of proposed orders.
The parties’ sets of proposed orders also request new orders. I will now consider those in turn.
The mother seeks the following new orders:
a)The father do ensure that he maintains and provides for the children age appropriate, sizing appropriate school clothing, shoes, underwear and any other items in good condition for both children; including, lunch box, water bottle, school bag, school jumper, school t-shirt, socks, underwear and shoes.
b)The father do ensure that the children attend their weekend sporting and social invitations in [Town W], including, providing the necessary sports clothing and equipment.
c)The father do ensure that the children’s school expenses including camp costs, and school excursions is to be paid half of the full fee. The mother is to pay the other half of the full fee.
d)The father is restrained and an injunction preventing the father from communicating with the mother’s family by SMS communications or e-mail communication on issues concerning family law matters, personal matters, health matters, educational matters and living arrangements.
I do not consider it appropriate to make any of these orders. They are overly detailed and may only encourage further litigation between the parties.
The father seeks the following new orders as set out at paragraphs [30]-[32] of the father’s affidavit filed 9 October 2013 and are also mentioned in paragraphs [15]-[17] of his affidavit filed 22 October 2013:
a)A “new order for the children’s passports” that would enable them to visit relatives who live overseas. The specific order sought is expanded upon in paragraph [32] of the father’s affidavit filed 13 February 2013.
b)An “injunction order against the mother and her family members to ensure that she uses the children’s legal surname of [Materns-Ongal] instead of her preference of using [Materns].” The issue is expanded upon, inter alia, in the father’s affidavits filed 13 February 2013 and 19 August 2013.
It is not appropriate to make an order relating to attainment of passports for the children. These parents are not yet capable of working through the issues that can arise out of international travel in a manner that would not be detrimental to the children’s best interests. If the parties’ can demonstrate the ability to co-parent without further intervention of the Court for an extended period of time, then it may be appropriate to consider making orders for the attainment of passports. In any event the father is the subject of a Departure Prohibition Order as a result of an ongoing dispute with the Child Support Agency. I decline to make an order in the terms sought by the father.
There already exists an injunction order preventing the parties’ from allowing the children to be known by any other surname than Materns-Ongal. I am unable to make orders against non-parties such as the mother’s extended family. I decline to make any further orders in relation to the proper use of the children’s surnames.

Part XIB of the Act

I drew the parties’ attention to this Part of the Act on 10 October 2013. In accordance with s 102QC of the Act, I put both parties on notice that I was considering making a vexatious proceedings order against both parties pursuant to s 102QB of the Act and sought submissions from them in that regard. The affidavits filed by each of the parties on 22 October 2013 dealt with the issue.
Taking into account the commencement of these proceedings and the date of the commencement of Schedule 3 of the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth), s 102QC does not apply to these proceedings.
As explained earlier, the parties were already and will in future be required to have leave before filing any documentation because the existing order is continued with slight variations.
In addition, it is my hope that the consolidation of the operative parenting orders that I have undertaken in this judgment will end the litigation.

Conclusion

For the reasons provided in this judgment, I make the orders that commence at page two of this judgment.

I certify that the preceding one hundred and ninety-three (193) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 29 November 2013.

Associate:

Date: 4 December 2013

Item	Alleged cost
“Wasted travel costs of a Rex flight to [Town W]” in April 2010	$156.00
“The cost of petrol … for a drive back to Adelaide” in April 2010	$80.00
“Lost travel costs ... for a cancelled flight on a Thursday to [Town W]” in April 2012	$124.00
“The time and costs … for two 4 hours drives to collect the children in [Town W]”	$160.00
The father’s “wife lost out … work income due to her need to take time off on a Tuesday to look after our two children, whilst [the father] travelled to [Town W]” in April 2012	$225.00
TOTAL	$745.00