Siskas & Diaz (No 2)
[2025] FedCFamC2F 292
•7 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Siskas & Diaz (No 2) [2025] FedCFamC2F 292
File number(s): ADC 1544 of 2020 Judgment of: JUDGE MCGINN Date of judgment: 7 March 2025 Catchwords: FAMILY LAW – CONTRAVENTION – parenting orders – counts prior to and following 6 May 2024 commencement of amendments to Act – contraventions without reasonable excuse – differing sanction regimes – separate and then global consideration of sanctions to be imposed – post-separation parenting course, fines, compensatory/make up time, bond, costs – explanation of bond prior to entry of orders Legislation: Crimes Act 1914 (Cth)
Family Law Act 1975 (Cth)
Family Law Amendment Act 2023 (Cth)
Cases cited: Brown & Brown [2005] FMCAfam 567;
B & W (No 1) [2003] FMCAfam 101
C & J [2001] FamCA 1486
C & R [2003] FamCA 682
Carrington and Gunby [2020] FamCAFC 117
Denny & Denny [2006] FMCAfam 49
Dobbs & Brayson (2007) FLC 93-346
Elspeth & Peter; Mark & Peter; and John and Peter [2007] FamCA 655
Greer v Bedelia [2009] FamCAFC 136
H & V [2005] FMCAfam 519
Siskas & Diaz [2025] FedCFamC2F 202
Markarian v R [2005] HCA 25; (2006) 228 CLR 357
Stevenson & Hughes (1993) FLC 92-363
Winch & Jackson (2015) FLC 93-649
WJP & TP [2002] FMCAfam 315
Division: Division 2 Family Law Number of paragraphs: 124 Date of hearing: 4 March 2025 Place: Adelaide Counsel for the Applicant: Mr Wabnitz Solicitor for the Applicant: Daniel John Lawyers Counsel for the Respondent: Mr Jelbert Solicitor for the Respondent: Gibsons & Associates Family Law ORDERS
ADC 1544 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SISKAS
Applicant
AND: MS DIAZ
Respondent
ORDER MADE BY:
JUDGE MCGINN
DATE OF ORDER:
7 MARCH 2025
THE COURT ORDERS THAT:
1.That there be orders made in terms of paragraph 123 of the reasons published this day upon the respondent receiving an explanation of the bond referred to in that paragraph.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE McGINN:
On the morning of 4 March 2025 the Court received submissions from counsel on behalf of each of the parties in respect to the question of sanctions, if any, that were to be imposed following the delivery of reasons of this Court on 18 February 2025 constituting findings as to whether there had been contraventions without reasonable excuse between 31 December 2023 and 6 September 2024 as alleged in an Application – Contravention filed on behalf of the applicant father on 8 October 2024.
The parties agreed at the conclusion of submissions on 4 March 2025 that each of the parties would be satisfied if the Court were to deliver reasons in short form in respect to the question of sanctions.
The 18 contraventions alleged to have occurred were established on the admission of the respondent mother.[1] It can therefore be taken that the contraventions were established beyond reasonable doubt.
[1] Siskas & Diaz [2025] FedCFamC2F 202 at [18]
All but two of the 18 contraventions were found to have occurred without any reasonable excuse.
Six of the contraventions without reasonable excuse occurred prior to the amendment of Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Eight contraventions without reasonable excuse were found to exist in the period 17 May 2024 to 6 September 2024.
All of the contraventions without reasonable excuse relate to contraventions of the primary order being a parenting order made on 10 November 2023.
The children the subject of the primary orders are V born in 2014, aged 10 years, W born in 2016, aged 8 years, and the triplets X, Y and Z born in 2019, all aged four years.
It was agreed before the Court at the taking of submissions in relation to the question of sanction that the children had not been seeing their father since the date of the last contravention of 6 September 2024 and that the mother had been withholding the children from school on those days when the father would otherwise collect the children so that he could not take them with him to spend time with him.
It was part of the mother’s submissions made through her counsel to the Court that the mother would now comply with parenting orders and that the children would not be kept from school.
On 6 May 2024 Division 13A of the Act was amended.[2] The Court as previously determined that the amendment to Division 13A is not retrospective.[3]
[2] Family Law Amendment Act 2023 (Cth)
[3] Siskas & Diaz [2025] FedCFamC2F 202 at [8] – [9].
The amending of Division 13A changed the regime of sanctions which might be imposed in respect of a contravention of parenting orders. That said, the amendments did maintain in common the ability of a court to impose sanctions such as compensatory time, fines and costs.
The applicant sought that sanctions be imposed as follows: –
(a)in respect of those six contraventions without reasonable excuse that occurred in the period 10 February 2024 to 20 April 2024, that: –
(i)a fine of $300 be imposed in respect of each contravention; and
(ii)an order for costs to be made in favour of the applicant; and
(iii)compensatory time.
(b)in respect of those 10 contraventions made without reasonable excuse that occurred in the period 17 May 2024 to 6 September 2024, that: –
(i)a fine of $300 be imposed in respect of each contravention; and
(ii)an order for costs be made in favour of the applicant; and
(iii)compensatory time.
The applicant also sought a variation of parenting orders such that orders 6 and 13 of the primary orders 10 November 2023 be discharged. Order 6 related to the father’s time with the children being supervised by his sister and/or his mother and order 13 related to the father undertaking cognitive behaviour therapy with a particular practitioner.
The applicant also sought that the mother be released from a bond that she had entered into on 10 March 2023 (that is, prior to the making of the primary orders in these proceedings).
By reference to the Court file (as the bond was not put into evidence but referred to by each party’s counsel in submissions), the bond was for 12 months, without surety or security, to be of good behaviour for the duration of the bond, to comply with interim orders of 27 September 2022 for the duration of the bond or until variation of that interim order and to comply with all other parenting orders made in file number ADC1544/2020 for the duration of the bond. By the time of the hearing of the determination of the Application – Contravention and the making of the present submissions the bond had lapsed.
As noted in the earlier judgment, no separate count was brought forward that the bond had not been complied with without reasonable excuse.[4]
[4] Siskas & Diaz [2025] FedCFamC2F 202 at [61]
The applicant sought that a global penalty be imposed in the sum of the payment of the fine of $4800 payable within 3 to 6 months, costs paid in the sum of $1,877 and that there be compensatory time constituted by there being additional alternative weekend time from the conclusion of school or 3pm on Friday until the commencement of school Monday or 9am if a non-school day on five occasions and during the April 2025 school holidays from 6pm on the last day of school until 6pm on the last day of those holidays.
It was submitted on behalf of the applicant that the sought compensatory time approximated the number of hours that had otherwise been lost on account of contraventions without reasonable excuse. That aspect of the applicant’s submissions was not cavilled with on behalf of the respondent.
The respondent after being informed that the costs sought on behalf of the applicant were on party/ party basis did not cavil with the fact that either an order for costs was sought or the amount of costs.
The respondent also did not cavil with the fact that a fine should be imposed by way of sanction.
The respondent did not cavil with the applicant’s submissions that there should be compensatory time but did submit that compensatory time be structured in a way that would see the applicant resume time in accordance with the primary orders[5] in a way that more quickly routed the applicant to full-weekend overnight time provided in order 5.4 of the primary orders.
[5] Siskas & Diaz [2025] FedCFamC2F 202 at [41 – 45]
Each of the parties were seeking that after consideration of each of the contraventions without reasonable excuse that were found to exist that a global sanction be imposed.
Neither party submitted that any sanction should be imposed, or other action taken in respect of the two contraventions that were admitted to have occurred but for which a reasonable excuse was found to exist.
The imposition of sanctions, if any, remains a matter for the Court[6] and cannot only be the product of the parties’ agreement or common approach as parties may agree too little or too much or something inappropriate. It remains, however, that such agreements and common approaches can be taken into account where there has been contravention of parenting orders.
[6] Winch v Jackson (2015) FLC 93-649 at [50]
The imposition of orders with sanctions must be considered in respect of each count and the circumstances of each count. The circumstances of the contraventions are set out in the judgment of 18 February 2025.
Whilst not disturbing any of the findings in that judgement and which are otherwise taken into account, the Court pauses to add additional comments about those findings that are relevant for the purposes of the consideration of orders and/or sanctions that might now be imposed.
For those six contraventions that occurred in the period of 10 February 2023 to 3 May 2024 the father missed out on time with the children comprising some 60 hours and 6 nights. The children did not see their father when they should have for about 10 weeks.
On the occasion of the contravention of 10 February 2024 the mother failed to place the children’s entitlement to spend time with their father above her concerns about the appropriateness of the primary orders. This led to her not acting to encourage the children to attend with their father and failing to place her “concerns” about the father in a proper context. This was an occasion where “sleep overs were about to occur” and so an important step under the primary orders for the children in spending increasing time with their father.
On the occasion of the contraventions of 24 February 2024 and 20 April 2024 the mother was prepared to adopt a ready but insufficient reason to preclude the children from spending time with the father and discloses that the children spending time with the father was a matter of low priority for her. Further, and as noted in the earlier judgment, the mother’s evidence in relation to count 7 of 20 April 2024 of the father spending time with the children was a “game” disclosed her as not being genuine about her obligations under the orders.
On the occasion of the contravention of 9 March 2024 the mother acted from what appears to be principally on the basis of her mistrust of the father again reflecting an inability to encourage the children spending time with the father and a lack of priority for that time to occur.
On the occasion of the contravention of 23 March 2024 the mother failed to comply with orders as she was prepared to inappropriately withhold the children as the father was not, to her belief, fulfilling another part of the orders. This again reflected that the mother placed inappropriate weight on her views in preference to her obligations under the orders.
The contravention of 6 April 2024 again appears to be a product of the mother attaching inappropriate weight on her views as to how the father is to be viewed and seeking out and amplifying unreasonable reasons for the children not to spend time with their father.
No matters were put in mitigation of these contraventions.
The nature of these contraventions displays a disregard for the importance of the children maintaining a relationship with their father.
The orders that might be made in respect of the contraventions without reasonable excuse that occurred prior to 6 May 2024 fall to be dealt with according to whether they constitute a “less serious contravention” under Subdivision E of the Act (as it then was) or a “more serious contravention” under Subdivision F of the Act (as it then was).
The applicant’s submission was that the contraventions without reasonable excuse in the period 10 February 2024 to 20 April 2024 were all of the “more serious” type.
According to s 70NFA(2)(a) and(b) Subdivision F is to apply if there is no previous court action or action in respect of a contravention of the primary order and a court is satisfied that the contravener has behaved in a way that has shown “serious disregard’ for obligations under the primary order.
Absent a definition in the Act, “serious disregard” has been variously described as being present in the following circumstances:
(c)a persistent disregard of an obligation;[7]
(d)clearly wilful and persistent attempts to resist carrying out an order;[8]
(e)it being evident from the demeanour and conduct during the proceedings;[9]
(f)effects of the contravention upon the children’s relationship with the other parent;[10]
(g)a continuing nature of a breach;[11] and
(h)kidnapping.[12]
[7] Elspeth & Peter; Mark & Peter; and John and Peter [2007] FamCA 655 at [66]
[8] Elspeth & Peter; Mark & Peter; and John and Peter [2007] FamCA 655 at [66]
[9] Denny & Denny [2006] FMCAfam 49 at [21]
[10] Brown & Brown [2005] FMCAfam 567; H & V [2005] FMCAfam 519
[11] B & W (No 1) [2003] FMCAfam 101
[12] C & R [2003] FamCA 682 at [21]
The type of disregard has been held to be something less than a contumacious breach[13] and should relate to the circumstances of the contraventions found to have existed.[14]
[13] C & J [2001] FamCA 1486 at [56]
[14] Carrington and Gunby [2020] FamCAFC 117 at [51] – [52]
If this Court is satisfied of the existence of a “serious disregard”, then the Court can make any or all of the orders as set out in s70NFB (as it was) for community service (provided s70NAF is satisfied), to enter into a bond, compensatory time orders, a fine (provided s70NAF is satisfied), imprisonment (again, provided s70NAF is first satisfied), compensation of expenses and costs.
Section 70NAF requires that certain types of the orders that could be made under s70NFB (community service, fine and imprisonment), can only be made if the court is satisfied beyond a reasonable doubt that “grounds” exist for the making of that type of order. The “grounds” that must so exist relate not only to the finding of the contravention and the lack of reasonable excuse but of all other matters that take the court to the view that the particular order should be made.[15]
[15] Dobbs & Brayson (2007) FLC 93-346 at 81,931, [51 – 54]
The Court did not find beyond a reasonable doubt the various absences of a reasonable excuse in relation to each of the contraventions now under consideration.[16]
[16] Siskas & Diaz [2025] FedCFamC2F 202 at [130], [134], [156], [166], [170] and [178]
The respondent mother’s wilfulness and persistence in not complying with orders and the lack of reasonable excuse in the period of 10 February 2024 to 20 April 2024 and her behaviour in relation to the contravention of 20 April 2024 leads the Court to be of the view that the mother acted with serious disregard of her obligations under the primary order.
The Court has an ability under s70NFA(4) (as it was) not to deal with contraventions as “more serious” if it is satisfied that it is “more appropriate” to deal with contraventions under Subdivision E, that is, as a “less serious contravention”.
The type of orders that the Court can make if it were to treat the contravention as “less serious” under s70NEB of Subdivision E are in some respects broader/different than those found in s70NFB.
For less serious contraventions, a court may order:
(a)attendance at a post-separation parenting program;
(b)compensatory time orders;
(c)adjourn the proceedings to permit other applications to be pursued;
(d)to enter a bond;
(e)impose a fine if the party fails to enter the bond;
(f)compensation for expenses; and/or
(g)costs.
For more serious contraventions a court may order:
(a)community service order;
(b)to enter a bond;
(c)compensatory time orders;
(d)a fine;
(e)imprisonment;
(f)compensation for expenses; and/or
(g)costs.
As noted above, as a consequence of the presence of s70NAF, the imposition of a fine under the “less serious” provisions and the imposition of community service orders, a fine or imprisonment under the more serious provisions requires the grounds for imposing any of them to be established beyond a reasonable doubt.
A fine can be imposed under the “less serious” provisions if it could be shown beyond reasonable doubt that the respondent failed without reasonable excuse to enter a required bond.[17]
[17] S70NEB91)(da) (as it was)
One of the differences between the type of orders to be made under the “less serious” and “more serious” situations is that there can be a stipulation for attendance at a post-separation parenting program.
Such an order should be made in the circumstances of this case where the mother has taken her views about the father to dominate and displace her obligation under the primary order in respect for the children spending time with their father.
Such availability and the need for such an order to be made can constitute, in my view, and in this matter do constitute grounds for dealing with a contravention or contraventions under the “less serious” rather than the “more serious” provisions of the Act (as it was).
The Court is satisfied that each of the contraventions are more appropriate to be dealt with under Subdivision E notwithstanding that the contraventions between 10 February and 20 April 2024 are to be regarded as “more serious”.
The respondent through her counsel indicated that she would undertake such a course if ordered to do so.
The mother is in receipt of government benefits and has caring responsibilities for other children. No further detailed submissions were put forward in respect of her financial circumstances or the extent of her responsibilities for other children.
In relation to each count, I consider that it is appropriate that the respondent complete a post parenting course.
Rather than attend six courses (that is one in respect of each contravention without reasonable excuse) the Court considers that it is appropriate that the respondent undertake just the one course.
The Court is satisfied for the purposes of s 70NEB(2) that the respondent be directed to attend a post-separation parenting program under s70NEB(1).
The course needs to be a post-separation parenting program pursuant to s 70NEB(1)(a). of the Act (as it was). That program must be of a particular type[18], including being provided by an organisation that meets the conditions set out in s 65LB and the principal executive officer of the Court must ensure that the provider of the program is notified of any order that is made.[19]
[18] Section 4 Family Law Act 1975 (Cth)
[19] S70NEB(3) (as the Act was) and Rule 11.72
The course “Circle of Security” satisfies those conditions of s65LB.
The program provider has certain obligations to inform the Court of the respondent’s participation in the program.[20] In the event there is a failure to participate or commence such a program the matter shall be relisted upon the written request of the respondent or of the Court’s own motion.
[20] S70NED
Having considered the long history of litigation in respect of parenting matters between the parties, the Court does not consider that before making an order for the respondent’s attendance at a post separation parenting program that it should seek the advice of the family consultant pursuant to section 11E of the Act.
The Court is of the view that in respect of each of the contraventions without reasonable excuse that occurred between the 10 February and 20 April 2024 that compensatory time should be ordered.
The making of an order for compensatory time is not simply a matter of making up all of the hours or days or nights lost through the contraventions. Considering the other provisions of Part VII of the Act including those that made up and do presently make up s60CC of the Act and in particular that the father’s time with the children has not occurred since about January 2024, the ages of the children and the structure of time between the father and children to have occurred under the primary orders and the conditions that are associated with that time occurring such an order should be made.
The Court also takes into account that the respondent did not concede the contraventions until it came time to commence to present her case and three of the contraventions without reasonable excuse and now under consideration were committed whilst the respondent was still bound by her bond of 10 March 2023.
The Court takes into account the time that should have been spent and the constitution of the days and times when that time should have occurred.
The Court considers that the children should have the benefit of additional time constituted by them spending additional day times with the father initially for half a day and then for a whole day and then overnight building up over a period of 6 weeks. This means that the father will not be fully repaid in terms of time for the time with children that has been lost.
In all the circumstances of the contraventions in the period 31 December 2023 to 20 April 2024 and presently, the Court is satisfied that it is consistent with the children’s bests interests that orders with that effect be made pursuant to s70NEB(1)(b).
It was urged upon the Court that a fine be imposed in respect of each of the contraventions that occurred before 20 April 2024 in an amount of $300 being something less than one penalty unit[21] for each contravention.
[21] See s70NEB(1)(da) and s 70NFB(2)(e) (as it was) and Crimes Act 1914 (Cth), s4AA. A “penalty unit” having been calculated by the Court to be $312.675 as at 5 September 2023.
This submission impliedly carried with it that each of the contraventions without reasonable excuse of this period were deserving of equal censure. This is not so: the successive contraventions were increasingly exacerbating the disservice to the children’s welfare in them continually not seeing their father and should attract an increasing rather than consistent level of censure and sanction.
However, the cumulative effect of such fines if they were imposed (which, for the reasons set out above, they cannot be) would see a fine of $1800 overall imposed. This was an amount with which the respondent did not cavil either as to its amount or compilation.
In the circumstances of this case there is a need for the mother to be motivated to encourage the children to spend time with their father and to go beyond merely delivering the children up to the father at the appointed place.[22]
[22] Stevenson & Hughes (1993) FLC 92-363 at 79,814; WJP & TP [2002] FMCAfam 315 at [12] and [14]
Although not agitated by either party and notwithstanding that the respondent provided through her counsel a commitment to comply with orders in the future and a failure to fulfil the terms of an earlier bond, the Court is of the view that the respondent should enter into a further bond. The bond should be imposed under s70NEB(1)d) and 70NEC of the Act (as it was) and one that that comes with security such that the amount of $1800 is to be forfeited to the Commonwealth in the event that the bond’s terms are not complied with.
The other terms of the bond would be that the respondent would comply with all parenting orders made or to be made under the Act and to complete the post-separation parenting courses.
The bond should be a period of 8 months from the time that it is entered into so as to best ensure the completion of the parenting course and the giving to effect of the orders for compensatory time and otherwise the consolidation of practice of compliance with the primary orders and cover Father’s Day this year.
Before the respondent enters into the bond she is entitled to receive from the Court[23] an explanation in language likely to be understood by the respondent as to the purpose and effect of the proposed requirements of a bond and the consequences that follow if the respondent fails to enter into the bond or having entered into the bond fails to act in accordance with the bond.
[23] Section 70NEC(5); Greer v Bedelia [2009] FamCAFC 136 at 67; Winch v Jackson [2015] FamCAFC 75
That explanation would have to include: –
(a)that a bond is a solemn promise and agreement by the person entering into the bond to the Court to comply with the obligations set out in the bond document that is to be signed by the respondent;
(b)that the bond will operate for a period of 8 months from the date of entering into the bond when it is signed by the respondent;
(c)that the bond requires the respondent to adhere to and to give effect to all existing and further parenting orders made under the Family Law Act 1975 (Cth) for the 8 months that the bond operates;
(d)that the bond requires the respondent to undertake and complete the post-separation parenting course(s) specified in orders to now be made;
(e)that in the event the respondent does not comply with the terms of the bond then:
(f)the sum of $1800 is to be paid to the Commonwealth of Australia; and
(g)the Court can then give consideration to:
(A)allowing the bond to continue and in addition fine the respondent up to 10 penalty units (about $312 per penalty unit so a total of about $3,100); or
(B)revoke the bond and give fresh consideration to imposing sanctions that could otherwise have been imposed upon the respondent instead of or together with the bond at the time that the bond was imposed, being attendance at a post-separation parenting course, provision of compensatory time to the other party, adjournment of proceedings to allow consideration of an application to change an existing parenting order, another bond, the imposition of a fine if without reasonable excuse the respondent did not enter into that new bond, compensation of expenses incurred by the applicant and endeavouring to give effect to a parenting order and legal costs that might be sustained by the other party; and
(C)if the respondent does not enter into the bond as required without reasonable excuse, the Court may impose a fine not exceeding the 10 penalty units being the amount of about $3,100 referred to above.
If the respondent does not enter into the bond without reasonable excuse the Court would then give consideration as to the imposition of a fine pursuant to s70NEB(1)(da). Such a fine might be considered to be, subject to any submissions that are to be received, in the proximity of $1800 in respect of the contraventions without reasonable excuse presently under consideration.
The Court shall return to the matter of these sanctions after consideration is given to the orders, if any are to be made, in respect of the contraventions without reasonable excuse that occurred following 17 May 2024.
Finally, applicant seeks an order for costs.
In addition to the requirements to undertake the post-separation parenting course and to enter the bond an order for costs should be made in favour of the applicant on account of him having to bring the Application and being largely successful in establishing a number of contraventions without reasonable excuse and otherwise having established a contravention. The Court also brings to account that the contraventions were not conceded until the respondent was required to go into evidence as to the existence of claimed reasonable excuses only two of which were found to exist. The Court has regard to the fact that the parties to differing extents have been assisted with the provision of legal aid. However, the Applicant initially had to meet expense from his own resources.
The amount sought of $1887 in respect of all counts is less than that prescribed in Schedule 1 of this Court’s Rules for commencing proceedings.
An order for costs should be made. The amount and timing of costs should be considered in light of any order for costs made in respect of the disposition of the question of orders to be made in relation to the balance of the contraventions that post-date 17 May 2024.
If the matters had ended at this point the Court, having considered all matters altogether to the point of 3 May 2024 as it found them to be, would make orders as discussed above in the exercise of what has been described as the “instinctive synthesis” properly understood[24] that has to be brought to bear in respect of making orders in the nature of sanctions.
[24] Markarian v R [2005] HCA 25; (2006) 228 CLR 357; (2005) 215 ALR 213
However, here further consideration has to be given to the contraventions without reasonable excuse that have been found to exist for the period 17 May 2024 to 6 September 2024.
The consideration of the orders that might be made under present form of Division 13A, Part VII of the Act which applies to the 10 contraventions without reasonable excuse for this period differ from those which governed the first set of contraventions.
In considering the order to be made it is to be noted that the objects of Division 13A have altered giving greater emphasis to supporting compliance with and deterring non-compliance with child related orders and upholding the authority of the court and providing for “sanctions”.
Provisions under the present form of Division 13 introduces the ability to order make-up time (which can be seen to be similar to compensatory time under the Act as it was), and attendance at post-separation programs. Stipulating attendance at “other programs” has now been made available. The demarcation between “less serious” and “more serious” contraventions as to the making of orders has been dispensed with. That said, the seriousness of contraventions remains a matter to be regarded.[25]
[25] Section 70N(2)(b)
Orders that now may be made where there is a contravention without reasonable excuse remain; the requirement to enter into a bond, the imposition of a fine if there is a failure to enter into a bond without reasonable excuse, and compensation of expenses.
Fines and imprisonment also remain available. However, these sanctions are now available where a court is satisfied beyond reasonable doubt there has been a contravention of the child -related order.[26] The requirements for the “grounds” for the making of such orders is no longer present.
[26] Section 70NBF(1)(d)
There is no express provision for costs which now fall to be determined under s117 of the Act.
In making any orders a court must have regard to the likely effects of the making of an order on any child or any other person and the seriousness of the contravention.
The seriousness of the contravention is to be accounted for having regard to whether there has been a previous contravention of a child-related order without reasonable excuse, whether the respondent has shown serious disregard for obligations under the child-related order set out in the Application, and the behaviour of any person with whom the child the subject of the contravened order is living with.
Here the Court regards the contraventions that occurred in the period 17 May to 6 September 2024 to be serious as:
(a)the mother has been previously found to have contravened a child-related order as evidenced by the existence of the earlier bond that expired on 10 March 2024;
(b)that the mother through the persistence and circumstance of the contraventions of this period demonstrated a serious disregard for her obligations under primary orders of November 2023; and
(c)her behaviour during this period on the occasion of each contravention established a ready preparedness to disregard her obligations created by the primary order.
Here, the mother conceded the contraventions alleged to have occurred. The Court can therefore be satisfied beyond a reasonable doubt that there were contraventions of the primary order as required by s70NBF(1)(d) in respect of the 10 contraventions without reasonable excuse that occurred in the period 17 May to 6 September 2024.
Submissions were received that make up time should be granted in respect of these contraventions and that a fine should be imposed and an order for costs should be made.
The submissions of each of the parties about the orders to be made in respect of these 10 contraventions were made as part of and consistently with the submissions about the six earlier contraventions referred to above.
The position of the applicant was that the Court should arrive at an overall position of a fine being imposed of $4800 (being $300 for the 16 counts or alternatively a total amount of $4800 for the 10 counts if no fine was imposed in respect of the 6 earlier counts), make-up time and costs.
The considerations in respect of this second tranche of 10 counts are those which have already been identified as relating to the circumstances of the first six except that the persistence of non-compliance has not attenuated but become more entrenched and in some cases (such as contraventions 9, 10, 12, 15, 16, 17 and 18) exacerbated by the mother withholding the children from school so as to preclude the children from spending time with their father. The withholding of the children from school is a most regrettable development which sees the mother visiting upon the children the consequences of her unreasonable views about their need to spend time with their father.
The extent of these 10 contraventions does call for there to be an order in nature of a sanction that deters the mother’s persistent non-compliance with orders and visits upon her consequences of her actions in disregarding the orders of this Court with little or no regard for her obligations.
In all the circumstances a fine should be imposed in respect of each of these 10 contraventions.
Section 70NBF(1)(d) fixes the amount of a fine as one not to exceed 60 penalty units.
The applicant’s submission was that an amount for each contravention being something less than one penalty unit should be imposed in respect of each contravention of $300, being a total of $3000.
In all of the circumstances particularly given the persistence of contraventions and the respondent’s financial circumstances, the Court considers that a fine in respect of each count at the lower end of the range identified in the legislation is appropriate. Given the minimising of the amount the Court would not further reduce any total amount to be paid.
The Court would fix a fine of $300 in respect of each of the contraventions without reasonable excuse identified as counts numbered 9 to 18 in the Court’s earlier reasons.[27]
[27]Siskas & Diaz [2025] FedCFamC2F 202, [236]
Such a fine would be imposed where there would otherwise be a bond also imposed of the type referred to above.
Also, for the reasons given above, it should be considered appropriate and in the children’s best interests that make-up time should be ordered although not by way of the replacement or making good on a hour for hour basis but consistently with the children’s best interests.
The mother’s conduct in failing to give effect to the parenting orders over the period of 17 May 2024 to 6 September 2024 only underscores, as does her failure of which the Court is told by both parties to give effect to orders since the last contravention of 6 September 2024, including keeping the children home from school, the need for her to undertake a parenting course so as to enable her to educate herself as to her obligations to give effect to orders.
The Court remains of the view that an order for costs should be made in the favour of the applicant. Should a costs order have not been made under the provision of Division 13A (as it was) the Court would otherwise be of the opinion that circumstances of the extent of the respondent’s non-compliance with orders giving rise to the Application that an order for costs be made in favour of the Applicant under s117 and would fix that amount in the sum of the $1887 as sought.
As only one order for costs should be made it will be expressed as being made under s117.
Three months should be allowed for payment.
The Court should give consideration to the question of sanctions overall.
To this point the Court has determined in respect of the contraventions without reasonable excuse that orders should be made for:
(a)compensatory time and make up time;
(b)the mother to undertake a post parenting course;
(c)the mother to enter a bond for eight months risking forfeiture of significant sum if orders are not complied with;
(d)a fine; and
(e)costs.
As to compensatory and make up time it is to be noted that under the primary orders that all other things being equal and if there had been compliance with orders the father would be presently spending time with the children on an alternate weekend basis with provision for school holidays and special occasions.
PARENTING
The applicant sought a variation of the parenting orders to the effect that the requirement for him to undertake CBT at all would be dispensed with and that supervision of his time with the children be dispensed with.
The Court is not satisfied on the evidence before it that either of those orders should now be made. Firstly, the fact that the respondent has not complied with orders is not a sufficient change in circumstances to justify the consideration of such changes of the orders and, secondly, the basis upon which those orders as to undertaking CBT and for supervision have not been articulated and examined in any meaningful way in the course of these proceedings. The fact that the particular practitioner cannot provide the applicant with CBT does not mean he cannot undertake it at all and the Court is not satisfied reading the primary order that the identification of the practitioner in order 13 of the primary order is anything more than a machinery type provision. On reading the primary orders as a whole, the requirement of supervision and its modification was to be further considered by the parties and, if necessary a court, after a period of time under which the applicant’s time with children could be regarded as consolidated. No submissions of weight were made that satisfied the Court that the requirements to reconsider parenting orders should be considered satisfied.
The Court does not consider that it is in the best interest of the children at this time to vary the primary orders and certainly not in the context of the present Application other than to clarify that the father should complete the CBT with another practitioner if the nominated practitioner in the orders is unwilling or unable to undertake that therapy and to schedule the father’s time that is otherwise to occur under the primary orders. The need to make these orders arises out of the contravening of the primary orders by the respondent.
Compensatory time in the children’s best interest should comprise of the children spending time with their father at the following additional times to those already provided for at paragraph 5, 9 and 11 of the primary orders.
The children are under the primary orders due to spend the weekend of Friday 7 March to Monday 10 March in with their father.
School holidays are to occur from 12 April 2025 to 27 April 2025 for term 1 and from 5 July to 20 July 2025 for term 2.
Even if the Court is wrong in determining that different legislative provisions apply to each of the 6 contraventions and 10 contraventions discussed in these reasons, then the Court would still impose orders providing for make-up time, attendance at a post-separation parenting course, the entering into a bond of the type described above, a fine of the type described under the present provisions and an order for costs.
Considering matters overall the Court determines that orders should be made that;
(a)pursuant to s117 of the Family Law Act 1975 that the respondent do pay the applicant’s costs of and incidental to the Application - Contravention filed 8 October 2024 fixed in the sum of $1887 (inclusive of GST) within three months;
(b)subject to the respondent being given an explanation pursuant to s 70NEC(5) of the Family Law Act 1975 (as it stood prior to 6 May 2024) and the applicant agreeing to enter a bond, the applicant enter into a bond pursuant to s70NEC of the Family Law Act 1975 (as it stood prior to 6 May 2024) upon the following terms:
(i)to be for a period of 8 months;
(ii)to forfeit the sum of $1800 to the Commonwealth of Australia should the respondent fail to comply with any term of the bond;
(iii)to comply with all parenting orders made under the Family Law Act 1975;
(iv)to forthwith commence and complete a post separation parenting course being “Circle of Security”;
(c)That pursuant to s70NBF of the Family Law Act 1975 the respondent pay within 6 months a fine fixed in the sum of $3000;
(d)That pursuant to s 70NEB of the Family Law Act 1975 (as it was prior to 6 May 2024) the respondent undertake a post-parenting program “Circle of Security”
(e)That pursuant to s70NEB(1)(b) of the Family Law Act 1975 (prior to 6 May 2024) and s70NBB of the Family Law Act 1975 that the father do spend time with the children in addition to that time provided in the orders of 18 November 2024 as follows:
(i)that alternate weekends pursuant to order 5.4 of the primary orders resume on as from and continue from Friday 14 March 2025;
(ii)that the children spend time with their father on the same terms and conditions as set out in the orders of 10 November 2023 (including but not limited to orders 6 and 8 of the primary orders):
(iii)on each Saturday 8 March 2025 and 22 March 2025 from 10 am to 4.30 pm, such time not to be the subject of supervision; and
(iv)on the weekend of 5 April 2025 from 10 am Saturday 5 April 2025 to 4.30 pm Sunday 6 April 2025, such time to be supervised in accordance with orders 6 and 8 of the primary orders;
(v)During the April 2025 (Term 1) school holidays:
(A)from 10 am Wednesday 18 April 2025 to 4.30 pm Thursday 19 April 2025, such time to be supervised in accordance with orders 6 and 8 of the primary orders; and
(B)from 10 am Wednesday 23 April 2025 to 4.30 pm Thursday 24 April 2025, such time to be supervised in accordance with orders 6 and 8 of the primary orders.
(vi)During the July 2025 (Term 2) school holidays:
(A)from 10 am Tuesday 8 July 2025 to 12 noon Thursday 10 July 2025, such time to be supervised in accordance with orders 6 and 8 of the primary orders; and
(B)from 10am Tuesday 15 July 2025 to 12 noon 17 Thursday 2025, such time to be supervised in accordance with orders 6 and 8 of the primary orders.
(f)That for the purposes of clarity, that in the event that the applicant father is not able to undertake Cognitive Behavioural Therapy with Ms E of C Centre as provided in orders 13 to 17 of the primary orders, then he shall undertake such therapy with such other similarly qualified practitioner as he can reasonably obtain and provide the respondent mother of that practitioner’s name.
(g)That the applicant father’s application for variation of parenting orders of 18 November 2024 pursuant to s70NAB of the Family Law Act 1975 (as it was before 6 May 2024) and/or s70NBC of the Family Law Act 1975 do stand dismissed;
(h)That the Application - Contravention filed 8 October 2024 do otherwise stand dismissed.
Orders will be formally pronounced following the provision of the explanation to the respondent as to the terms of the bond to be entered into as required pursuant to 70NEC(5) (of the Act as it was) and/or s70NCA(5) of the Act (as it is now).
I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McGinn. Associate:
Dated: 7 March 2025
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