Bellanger & Wemble (No 8) [2025] FedCFamC2F 1568 (7 November 2025)

(a) Ms Paige be imprisoned for a period commencing 42 days from this day; and

(b) On Friday 19 December 2025 at 9.00 am, Ms Paige, attend at courtroom 2K at the Federal Circuit and Family Court of Australia (Div 2) at 305 William Street Melbourne for the purpose of commencing that sentence of imprisonment.

1. For the purposes of Order 3 herein, a Warrant of Commitment be issued in the usual form.
2. That Ms Paige be and is restrained from leaving the Commonwealth of Australia until 2031 (the day before the 18th Birthday of the child Y) ('the restraint on the Grandmother leaving Australia').
3. The Court requests that the Australian Federal Police give effect to this order by placing the name of the Grandmother, MS PAIGE born in 1967, on the Family Law Watch List in force at all points of international arrival and departure in the Commonwealth of Australia and maintain the Grandmother's name on the Family Law Watch List for the said period, or until the Court orders its removal.
4. The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders.
5. In the event the children, X born in 2011 and Y born in 2013 ('the children'), are returned to the care of their mother, Ms Bellanger, in the Commonwealth of Australia, the parties do all acts and things to cause the Court to be notified and these proceedings to be listed at short notice before Judge O'Shannessy for the purpose of considering whether, pursuant to section 70NFG(5)(a) of the Act, the whole of the sentence of imprisonment or any part remaining unserved, should be suspended or discharged, and/or whether pursuant to section 70NFG(8) the Grandmother should be released from imprisonment, and whether the restraint on the Grandmother leaving Australia should be discharged or varied.
6. The Independent Children's Lawyer is otherwise discharged.

1. These orders were interpreted in Court to the Second Respondent Grandmother, Ms Paige, by an interpreter retained by the Court.
2. These orders and the reasons published this day will be emailed to the First Respondent Father, Mr Wemble, by the Court at ...@....

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).

1. These are the reasons why[1] I have ordered that the Second Respondent, Ms Paige, ('the Grandmother') serve a term of imprisonment as the penalty for contravening the Orders of this Court made on 16 August 2021, and for the specific period of imprisonment to commence 42 days from this day ('the commencement day'), being 19 December 2025. Were the children to be returned to the care of their mother, Ms Bellanger ('the Mother'), in the Commonwealth of Australia within that 42-day period, an application could, and should, be made to me pursuant to section 70NFG(8) for the Grandmother to be released from such sentence of imprisonment.

1. On 16 August 2021 parenting orders ('the Final Orders') were made in this Court by consent that included the following provisions:

1. The parties have equal shared parental responsibility for all long term decisions in relation to the children [X] born [in] 2011 and [Y] born [in] 2013 ("the children"). 2. The Mother have sole parental responsibility for the day to day decision making of the children. 3. The children live with the Mother. 4. The Mother shall facilitate contact between the children and the Father by video or voice call on two occasions per week on days and time as may be agreed between the parties and failing agreement, with the Father to place the call to the Mother's phone, as follows:

(a) Each Wednesday between 7.30pm and 8.00pm Australian Eastern Standard Time ("AEST"); and > > (b) Each Saturday between 5.00pm and 6.00pm AEST.

1. The Father be permitted to send gifts, cards, letters and emails to the children and the Mother shall provide them to the children. 2. When the Father travels to Australia, he spend time with the children as follows:

(a) As agreed between the parties in writing, and for no less than two occasions of five hours per week; and > > (b) That the Father provide the Mother with at least 14 days' notice of the dates he will be present in Australia; and > > (c) That the Father be permitted to take the children to visit the Paternal Grandmother, Paternal Aunts and Paternal Uncle when the children are in his care.

1. Each parent shall advise the other of any change to their telephone number, residential address or email address within 7 days of such change. 2. In the event members of the extended paternal family request to spend time with the children, the Mother shall facilitate such spend time arrangements as may be agreed between the Mother and the extended paternal family. 3. Each party immediately inform the other of any serious illness or medical emergency that the children may suffer and authorise the other parent to immediately speak to any treating health practitioners. 4. Both parties communicate directly by text message or email (or in urgent circumstances by telephone) in relation to any issues relating to the care, welfare and development of the children.

1. I have heard contested contravention of parenting orders proceedings brought pursuant to Division 13A of the Family Law Act 1975 (Cth) ('the Act') against the first respondent, Mr Wemble ('the Father'), and the second respondent, Ms Paige ('the Grandmother'). I am satisfied beyond reasonable doubt that each respondent has contravened the Final Orders without reasonable excuse.
2. On 16 July 2025, I commenced to deliver oral reasons for my decision about contravention. I delivered settled and completed reasons on 14 August 2025. I found one count (count 1) of contravention of a parenting order without reasonable excuse proven against the Father beyond reasonable doubt. I found one count (count 2) of aiding and abetting the Father's contravention of a parenting order without reasonable excuse proven against the Grandmother beyond reasonable doubt. I also found another count (count 3) of contravention of a parenting order without reasonable excuse proven against the Father on the balance of probabilities. Those finding are as set out in Bellanger & Wemble (No 7) [2025] FedCFamC2F 1075 ('the Findings Reasons').

1. I adjourned the further hearing (described as 'the Penalty Hearing') to 25 August 2025. On 25 August 2025 I heard submissions as to penalty to be imposed.
2. The Mother was represented at the contravention hearing and at the Penalty Hearing by her solicitor, Mr Monoah. The Independent Children's Lawyer was represented on those hearings by Mr Combes of counsel. The Grandmother represented herself at the contravention hearing but was represented at the Penalty Hearing by Mr Foo of counsel, she having retained solicitors who filed a Notice of Address for Service on 20 August 2025. At all times, the Grandmother required the assistance of an interpreter and the Court retained an interpreter for that purpose. The Grandmother's solicitors requested a copy of the transcript of the contravention hearing on 20 August 2025 and, in the circumstances, I ordered that they be provided with a copy of the transcript that day, and they were so provided.

Further hearing of Penalty Hearing about the Father adjourned

1. The Father did not appear at the Penalty Hearing but had, on 18 August 2025 (that is, after the Findings Reasons were published and emailed to him by the Court), emailed to the Court and the other parties, a document that was ultimately 'Exhibit F6 - 25 August 2025', and I decided to treat that document as a submission on penalty by the Father. The Father had not appeared at all in the contravention hearing and did not appear at the Penalty Hearing.
2. The Father was, at the time of the filing of the Initiating Application in this Court in 2021, an Australian citizen, and I infer from the absence of any other information, that he remains so. From soon after marriage to the Mother in 2011, he had lived in Melbourne with the Mother, and when the children were born,[2] with the Mother and the children, until the parents separated in 2014. Soon after separation, he moved to Country D and has lived there since, save for a short time in 2017 when he returned to Australia for medical treatment.
3. The Father is not present in the Commonwealth of Australia at this time. He has continued to detain the children provided for in the Final Orders in Country D. In those circumstances, I have adjourned the further hearing of the Penalty Hearing as it relates to the Father to a date to be fixed and to be brought on by further application of the Father or the Mother or by the Court.

1. In the Findings Reasons, I observed as follows:
   1. The Grandmother was not party to, and was not herself bound by, the Final Orders as the Father was. The Grandmother's liability or legal culpability can only arise by way of aiding and abetting the Father in his contravention of the orders. Count 3 does not allege that the Grandmother aided and abetted the Father in his contravention of the Final Orders over that period. Hence, whilst count 3 is made out against the Father, it is not made out against the Grandmother.
   2. Further, I observe that had the Grandmother been alleged to have aided and abetted the Father in his contravention of the Final Orders as alleged in Count 3 (and it was not so alleged) because of the police involvement [in early] 2022 the possibility that the Grandmother's intention to support and assist the Father was in some way influenced by the local police involvement has not been excluded.
   3. Hence, subject to the other parties having an opportunity to address me on this point, and they will be invited to do so on 25 August 2025, insofar as count 3 relates to the Grandmother. It appears that count should have been, and should be, dismissed against the Grandmother.

The First and Second Respondent without reasonable excuse refused to allow the children to spend time with the Applicant Mother.

Order 2 of the final orders of Judge O'Shannessy dated 16 August 2021.

Date, time and location of alleged act or omission

In early 2022 between 12pm to 3pm Country D local time, City B, C State, Country D (refer to the second respondent's affidavit dated 8 April 2024 at paragraph 26. On or about early 2022 after the children had been removed.

1. For the purpose of this count, the Applicant Mother treated the concepts of refusing to allow the children time with the Mother and the children living with the Mother as in substance, the same thing.
2. At the Penalty Hearing, counsel for the Grandmother sought that count 3 be dismissed on the basis of my observations above. Mr Monoah, appearing for the Mother, opposed that submission, positing that count 3 should stand, notwithstanding what he called a "drafting error" whereby the words "aid and abet" were not expressly included in count 3, but as I understood the submission, and it was submitted that it was clear enough that "aid and abet" was what was meant.
3. The ICL made oral application for count 3 to be amended by way of adding the words "by aiding and abetting". Without the amendment sought by the ICL or the existing count being interpreted as sought by Mother, the count must fail.
4. The fundamental problem with the position of the Mother and the application for amendment by the ICL is that the substantive case of whether or not the alleged contraventions occurred has been heard and heard on the allegations as they stood. The Grandmother has answered the case against her and given evidence in response and factual determinations have been made. At this point in the case, it is not procedurally fair or in the interests of justice that such a significant change be made in the case against the Grandmother.
5. For those reasons, I dismiss the application of the ICL for amendment, and I do not proceed on the basis requested by the Mother. I dismiss count three (3) as it relates to the Grandmother.

1. I refer to and repeat my findings in the Findings Reasons. This is a short summary of those reasons to define just what the Grandmother did that constituted the aiding and abetting of the contravention of the Final Orders by the Father.
2. The Grandmother was aware of the substance of the Final Orders. The Grandmother was aware that the Mother had brought the children to Country D in December of 2021, just four months after the Final Orders. On or about 17 December 2021, the Grandmother was still in Australia but had already arranged to travel to Country D in early 2022. In December 2021, soon after the Mother had brought the children to Country D and permitted the Father to spend some hours with the children, and despite consenting to the Final Orders just four months previously, the Father had arranged for a community or family meeting which the Mother attended. At that meeting the Father urged those present to support his removal of the children from the care of the Mother so that they would live with him in Country D and not with the Mother in Australia. The Grandmother was not present at the meeting but attended by telephone (by what is known as 'speaker phone') and addressed the meeting and urged those present to support the Father and his intention to remove the children from the Mother's care. At this point the children remained in the care of the Mother.
3. This event is not the subject of a proven count of aiding and abetting the Father's contravention of the Final orders. But it is relevant as showing the Grandmother's clear intention to support the Father's removal of the children while they were in Country D and her preparedness to lend support to the Father in his determination to remove the children and, by doing so, the Grandmother unequivocally demonstrated to the Father her support and encouragement of his intention to remove the children from the Mother.
4. In early 2021, by obtaining the involvement of local authorities, the Father obtained the removal of the children from the Mother's care by the local police. The children remained in his care from about early 2022 until a local court case the following month. During that time, the Mother did not see or communicate with the children. During that time, the Grandmother stayed in the same accommodation as the Father and the children and interacted with them as their grandmother. The Grandmother made no attempt to communicate with the Mother to inform her as to the children's circumstances.
5. This period of staying with the Father and the children is not the subject of a proven count of aiding and abetting the Father's contravention of the Final orders. But this event is relevant as showing, again, the Grandmother's clear intention to support the Father's removal of the children while they were in Country D, and again, her preparedness to lend support to the Father in his continued determination to remove the children and by doing so, again, the Grandmother unequivocally demonstrated to the Father her support and encouragement of his intention to remove the children from the Mother.
6. The local court case returned the children to the Mother's care. However, the Father continued to agitate to obtain the removal of the children from the Mother's care. The Father procured the arrest of the Mother's father, alleging that 'bridewealth' (measured in cows) had not been returned to him. Events culminated on or about early 2022, when a number of the community and family members related to the Father, and others related to the Mother, attended near a courthouse at City B in Country D. The Father and the Grandmother attended. The Mother and the children attended. The Father took possession of the children by force and caused them to be carried away by motorcycle. While this was occurring, the Grandmother by words and action encouraged the Father to remove the children. I am satisfied, and satisfied beyond reasonable doubt, of those events and that those words and actions of the Grandmother did aid and abet the Father in his contravention of the Final Orders by his removal of the children that day. I am not satisfied that the Grandmother had a reasonable excuse to aid and abet the Father on that day as she did.
7. The Grandmother's involvement in the 17 December 2021 meeting and staying with the Father during the first removal of the children from early 2022 for one month, as described above, demonstrate that the aiding and abetting of the Father's contraventions by words and actions at the time of the last removal of the children in early 2022 was not a spontaneous or spur of the moment error of judgment by a mother in support of her son, but that she had formed the intention to assist the Father by the moral support and encouragement of her son in his endeavour to remove the children from the Mother. However, it should be clear that the penalty in this case is not applied because of, or as punishment for, the events of December 2021 and early 2022. The relevance of those events as to penalty is as described in these reasons.
8. The children now remain in Country D under the control of the Father and so remain notwithstanding the Mother's proposal to raise the funds necessary to pay for necessary airfares for their return. I am satisfied she would do so. They remain separated from their mother, their only carer for most of their lives until they were removed. They remain separated from their peers and their education in their local school that they attended until removal. They remain so despite bouts of very severe sickness whilst retained in Country D and effectively being prevented from accessing the medical services of the country of their citizenship.
9. The circumstances, and the consequences, of what the Grandmother aided and abetted in early 2022 is self-evidently most egregious. It is my intention and purpose that this sentence of imprisonment upon the Grandmother will promote compliance with the Final Orders by supporting the return of the children to the Mother's care in Australia.

1. As discussed in the Findings reasons, I am satisfied Subdivision F of Division 13A of the Act (as it was) applies to the Grandmother's proven contravention, that is 'more serious contravention' because section 70NFA(2)(a) & (b) are applicable.[3]
2. The applicable Subdivision F provisions[4] include:

Subdivision F - Contravention without reasonable excuse (more serious contravention)

70NAA Simplified 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.

(2) The court always has the power to vary the order under Subdivision B. In doing so, the court will have regard to any parenting plan that has been entered into since the order was made (see section 70NBB).

(3) The other orders that the court can make depend on whether:

(a) a contravention is alleged to have occurred but is not established (Subdivision C); or

(b) the court finds that a contravention has occurred but there is a reasonable excuse for the contravention (Subdivision D); or

(c) the court finds that there was a contravention and there is no reasonable excuse for the contravention (Subdivision E for less serious contraventions and Subdivision F for more serious contraventions).

...

70NAC Meaning of contravened an order

A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:

(a) where the person is bound by the order - he or she has:

(i) intentionally failed to comply with the order; or

(ii) made no reasonable attempt to comply with the order; or

(b) otherwise - he or she has:

(i) intentionally prevented compliance with the order by a person who is bound by it; or

(ii) aided or abetted a contravention of the order by a person who is bound by it.

(note omitted)

...

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

(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) (not applicable)

(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) (not applicable)

(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.

(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.

(3) (not applicable)

(4) (not applicable)

(5) (not applicable)

(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.

70NFC When court is empowered to make a community service order[5]

(recited at Appendix One)

70NFD Variation and discharge of community service orders

(not applicable)

70NFE Bonds

(1) This section provides for bonds that a court may require a person to enter into under paragraph 70NFB(2)(b).

(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.

70NFF Procedure for enforcing community service orders or bonds

(3) (not applicable)

70NFG Sentences of imprisonment

(1) A sentence of imprisonment imposed on a person under paragraph 70NFB(2)(e) is to be expressed to be:

(a) for a specified period of 12 months or less; or

(b) for a period ending when the person:

(i) complies with the order concerned; or

(ii) has been imprisoned under the sentence for 12 months or such lesser period as is specified by the court;

whichever happens first.

(2) A court must not sentence a person to imprisonment under paragraph 70NFB(2)(e) unless the court is satisfied that, in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention under any of the other paragraphs of subsection 70NFB(2).

(3) If a court sentences a person to imprisonment under paragraph 70NFB(2)(e), the court must:

(a) state the reasons why it is satisfied as mentioned in subsection (2); and

(b) cause those reasons to be entered in the records of the court.

(4) The failure of a court to comply with subsection (3) does not invalidate a sentence.

(5) A court that sentences a person to imprisonment under paragraph 70NFB(2)(e) may:

(a) suspend the sentence upon the terms and conditions determined by the court; and

(b) terminate a suspension made under paragraph (a).

(6) A court, when sentencing a person to imprisonment under paragraph 70NFB(2)(e), may, if it considers it appropriate to do so, direct that the person be released upon the person entering into a bond described in subsection (7) after he or she has served a specified part of the term of imprisonment.

(7) A bond for the purposes of subsection (6) is a bond (with or without surety or security) that the person will be of good behaviour for a specified period of up to 2 years.

(8) A court that has sentenced a person to imprisonment for a period expressed as provided by paragraph (1)(b) may order the release of the person if it is satisfied that the person will, if he or she is released, comply with the order concerned.

(9) (not applicable)

70NFH Relationship between Subdivision and other laws

(1) This section applies where an act or omission by a person:

(a) constitutes a contravention of an order under this Act affecting children; and

(2) If the person is prosecuted in respect of the offence, a court in which proceedings have been brought under section 70NFB in respect of the contravention of the order must:

(a) adjourn those proceedings until the prosecution has been completed; or

(3) The person may be prosecuted for, and convicted of, the offence.

(4) Nothing in this section renders the person liable to be punished twice in respect of the same act or omission.

70NFI Arrangements with States and Territories for carrying out of sentences and orders

An arrangement made under section 112AN for or in relation to the carrying out of sentences imposed, or orders made, under Division 2 of Part XIIIA is taken to extend to the carrying out of sentences imposed, or orders made, under this Subdivision.

70NFJ Subdivision does not limit operation of section 105

Nothing in this Subdivision is intended to limit the operation of section 105.

(emphasis added)

1. In Tate, JRD & Tate, MT (No.3) (2003) FLC 93-138; [2003] FamCA 112 ('Tate (No.3)'), the Husband did not comply with orders relating to property alteration proceedings, including a failure to provide relevant documents in his possession. He was sentenced to a total of four months imprisonment and the sentence was confirmed on appeal. He had been charged and found guilty of contempt of court; I infer pursuant to section 112AP as it then was. That is, not pursuant to Division 13A of Part VII of the Act. Section 112AP provides for penalties that include imprisonment and there is no limitation on the length of imprisonment. Because Tate (No 3) turned on its own facts and because it related to financial matters and because it fell under the contempt of court provisions of section 112AP, it is of little assistance in this case as to whether or not imprisonment is appropriate and as to the length of any imprisonment.
2. Notwithstanding those significant differences between that case and this, the following observation from Tate (No.3) is of general application:[6]

... The purposes of imposing punishment would appear to reflect the need for individual and general deterrence and retribution for the party's failure to comply with the order. Retribution is called for because it is essential to the proper working of the court system that court orders are obeyed. ...

1. In Dobbs & Brayson (2007) FLC 93-346; [2007] FamCA 1261 ('Dobbs'), the Full Court dealt with an appeal by a mother from orders by a Federal Magistrate sentencing her to a period of four months imprisonment for contravening an order for the children to spend time with their father. The contravention had been found proven pursuant to Division 13A of Part VII of the Act, the same legislation as I apply.
2. The contravened orders had been made on 12 December 2006 and required the children's mother to deliver the children to a contact centre the following 7 January 2007. She did not, and in explanation told the Court that she could not afford to drive the children the said to be necessary 5 hours to the contact centre. For that one contravention, the mother was sentenced to 4 months imprisonment. The appeal was allowed on the basis that, inter alia, the Federal Magistrate had 'failed to identify and apply the proper standard of proof and to adequately set out his reasons for the imprisonment'.
3. In their decision, Finn, Warnick & Boland JJ referred to the following observation in the Federal Magistrate's first instance judgment:
   1. In this case there is evidence that the mother will not comply with Jordan J's orders. Given her answers to me, I am satisfied beyond reasonable doubt that she will not and in those circumstances my view is that it is appropriate to impose a sentence of imprisonment and that the sentence of imprisonment not be suspended.
4. In response to that paragraph, Finn, Warnick & Boland JJ said:
   1. ... taken literally, in paragraph 28 of his reasons, Jarrett FM sentences the mother because she will not comply in the future, rather than for the contravention on 7 January 2007. ...
   2. While we acknowledge that "deterrence" was a factor properly to be taken into account, the sentence must only be in respect of the offence established.
5. After acknowledging that 'deterrence' was a factor to be considered in considering penalty upon contravention, the Full Court went on to recite matters that it asserted were not addressed but should have been, at [89].

89. In summary, the reasons raise and leave unanswered several questions:

• If the mother was defiant in the face of a suspended sentence, would an actual imprisonment produce any different result?
• If not, what was the purpose of the sentence?
• Did the mother's defiance become the only foundation for the sentence?
• Was imprisonment as such and for the period applied, of itself, the right order in respect of the contravention, rather than a result reached by default?

1. McClintock & Levier (2009) FLC 93-401; [2009] FamCAFC 62 ('McClintock & Levier') was a decision of the Full Court in which an appeal was allowed against an order sentencing the mother to six terms of imprisonment, each of six months (a total sentence of an effective 6 months), in respect of six contraventions of spend time orders. At the time of the appeal, the mother of the child had served 16 days of the sentence and, by means of a recovery order, the child was in the care of the father at the time of the first instance sentencing. An issue in the appeal was whether the learned Federal Magistrate could take into account general sentencing principles, including general deterrence and punishment, at all in a Division 13A case.
2. The contraventions by the mother of the child who was to spend court ordered time with their father are conveniently described at [5] and [65] of the judgment of Finn J:
   1. It will be apparent that the first three contraventions involved one weekend in each of April, May and June 2007; that the fourth breach involved alternate weekends over a period of approximately four months (excluding two school holiday periods); and that the fifth and sixth each involved a school holiday period of five days and four overnights.

...

1. ... the first three contraventions, which each involved one weekend and which all occurred prior to the mother disappearing from New South Wales ...

1. What the mother had done was also discussed by Coleman J:
   1. Albeit the breaches of parenting orders which the mother admitted, viewed in isolation, represented only a matter of weeks for a period of 8 months, during which the parties' child was denied the opportunity to spend time with his father, as the learned Federal Magistrate's findings of fact make clear, the child was kept away from the father for some 13 months. That separation was only terminated by the efforts of police officers pursuant to a recover order issued by the Federal Magistrate's Court 9 months earlier.
   2. On the other hand, as his Honour accepted, the mother had already been significantly adversely impacted by the consequences of her wrongful act. As a result of her actions, the parties' child had been removed from the mother's care and placed with the father...

1. Finn J observed:
   1. I consider that his Honour was able to have regard to the consideration of general deterrence even within the parameters of Division 13A, because of the reference in the first section of the Division, being s 70NAA, to "the powers that a court ... has to make orders under this Act affecting children".

...

1. The question in this appeal concerning the issue of general deterrence therefore becomes whether his Honour placed too much weight on that issue and the consequent need for a prison sentence in order to provide general deterrence, particularly in circumstances where he had earlier found what he described as "powerful considerations" against the imposition of a sentence of imprisonment. ...

1. Finn J's observations, in resentencing the contravener, included:
   1. A court could well be satisfied (as required under s 70NFG(2)) that in the circumstances of the case, no order other than one for a term of imprisonment or at least a suspended term of imprisonment was appropriate. This would be because bonds would have already been imposed (if only notionally) on account of the three earlier contraventions; the child had already apparently spent time with the father which could be regarded as compensatory time; the mother's apparently poor financial position would be likely to make any penalty of a financial type unenforceable or largely ineffective and there is an apparent dearth of evidence concerning the availability of the necessary facilities for community service orders.

...

1. For those reasons then I would be satisfied ("beyond reasonable doubt", if that is in fact necessary under s 70NAF(3)(a)) and having regard to the fact that the mother has already spent 16 days in prison, that for each of the fourth, fifth and sixth contraventions, the mother should be sentenced to six months in prison for each of the contraventions (with such term to commence on the handing down of this Court's orders), with such sentences to be served concurrently, and to be suspended after 16 days taking into account time already served prior to the hearing of the appeal and upon the mother entering into a bond (without surety or security) to be of good behaviour for two years, as provided for in s 70NFG(6) and (7).

1. Coleman J's observations included:
   1. Whilst I accept the learned Federal Magistrate was entitled to have regard to relevant sentencing principles or guidelines, I am unable to accept that his Honour was entitled to have regard to ensuring that the mother was "adequately punished" (our emphasis) in a way that was "just and appropriate", to prevent "other people from committing the same or similar" breaches, to "protect the community" from the mother, or, other than for the purposes of procuring compliance of the court's orders, "to denounce the conduct" of the mother.
2. Ultimately, Coleman J adopted the resentencing proposed by Finn J, that is time served the remainder of 6 months being suspended.
3. The general observations of Cronin J included:
   1. The focus of a court therefore in dealing with a contravention application under Division 13A must be in making orders which will enforce future compliance with its orders.
   2. For a court to decide to punish a party who has been found to have contravened an order for the purposes of making other like-minded persons comply with orders relevant to them, in other words, to make an example of them, would be an error of law.
   3. ... Without any other legislative guide in Division 13A, I see no reason why a court cannot inform itself by any number of considerations in the exercise of its discretion providing those considerations are set out clearly and the court's focus is on the individual party rather than on general deterrence or policy.

...

1. All of the provisions of Division 13A therefore focus on the parties and the court's obligation to endeavour to make its orders work if they have been contravened.

...

1. ... the learned Federal Magistrate should have considered the suspension of the sentence of imprisonment having determined that nothing else was available to him. On that basis, the appeal should be allowed.

...

1. Despite the lengthy course of conduct, this was the first time the mother had been before the court. She had lost the responsibility for the full-time care of the child and the learned Federal Magistrate found the child would be distressed by the mother being imprisoned. ...

1. Ultimately Cronin J agreed with the resentencing as proposed by Finn & Coleman JJ and that was the order of the Court.
2. But it is clear that at the time of sentencing, and resentencing by the Full Court, the child had been recovered and was living with his father, not his mother as had been the case up until the execution of a recovery order. On any view, the parent who had contravened the orders had suffered very severe consequences. In McClintock, despite significant differences between each judgment of the Court, it is clear enough that the Full Court sought to highlight that deterrence should not be the primary purpose of Division 13A, not to say that deterrence is not to be considered at all.
3. Further, it is apparent that the current circumstances and consequences were to be considered. In that case, that included that the child no longer lived with the contravener. The salutary lesson that any observer of the circumstances of McClintock could not help but draw, is that wholesale failure to comply with parenting orders may result in the loss of residence of, or time with, the child or children apart from penalty pursuant to Division 13A.

1. In Langer & Griffin (2013) FLC 93-559; [2013] FamCAFC 170 ('Langer & Griffin'), the Full Court allowed an appeal from a six-month sentence of imprisonment imposed on the husband in that matter on the basis of, inter alia, such a sentence being 'manifestly unjust and excessive', and a failure by the trial judge 'to give any or any adequate reasons as to why he reached that conclusion'.
2. In Langer & Griffin, property settlement orders had been made by consent. The respondent husband was required to transfer certain real property to the applicant wife, to discharge certain secured debt and to pay the wife $250,000. He transferred the property but did not discharge the debt or pay the $250,000. At the time of negotiating the property settlement, the secured debt was 'nil or close to nil' but subsequently the husband had drawn against the facility to the full extent available. The husband was prosecuted for contravention of the financial orders pursuant to Part XIIIA of the Act, that included section 112AD. Some of the provisions of Part XIIIA are the same as the provisions in Division 13A as applying in this case. Section 112AE(1) & (2), empowering imprisonment for '12 months or less' are the same as sections 70NFG(1) & (2) recited in these reasons.
3. In regard to determining an appropriate sentence, the Full court said:
   1. We accept the submissions on behalf of the husband that nowhere in his Honour's reasons does he indicate why a sentence of six months is appropriate, nor did he make reference to comparable sentences (see Tate, JRD & Tate, MT (No 3) (2003) FLC 93-138, Dobbs & Brayson [2007] FamCA 1261; (2007) FLC 93-346). We further note that he did not address any of the well known and well accepted matters that are seminal considerations to the sentencing procedure such as an assessment of the objective seriousness of the conduct, general or specific deterrence, rehabilitation, mitigation or aggravating factors. To fail to even mention them reflects in our opinion a scant regard for the liberty of the citizen and a failure to appreciate the purposes for which sentences of imprisonment are imposed.

1. The matters to be taken into account on penalty in Division XIIIA are no more expansive or detailed than the provisions of Division 13A as applies in this case. Hence, the observations as to matters that should be taken into account are also applicable to sanctions or penalty under Division 13A, including the orthodox concern of society and the courts that interference with the liberty of the citizen is a matter to be approached with great care and concern for that liberty. Those matters are not only relevant to be considered but are 'seminal'.

1. Oswin & Oswin (2019) FLC 93-916; [2019] FamCAFC 164 ('Oswin') was a case under Division 13A of the Act alleging contravention of parenting orders. The parents were subject to orders that they had equal shared parental responsibility which, I infer, included responsibility for long term and major decisions about education. Contraventions had been found proven against the respondent mother and she had been sentenced to 7 days imprisonment suspended for two years. She was alleged to have unilaterally enrolled a child at a school and to have failed to execute applications for the children's passports. The prosecuting applicant father had sought a bond as penalty if the allegations were proven.
2. The mother appealed. On appeal, the Full Court found that certain findings of fact were mistaken. Apart from those errors of fact, the Full Court found that extraneous matters had been taken into account on sentence, the reasons were inadequate, and the litigant in person had not had sufficient procedural fairness.
3. In setting aside the orders at first instance, the Full Court observed:
   1. As discussed by the Full Court in Dobbs & Brayson [2007] FamCA 1261; (2007) FLC 93-346, the scheme of Division 13A is outlined in s 70NAA of the Act which highlights that a court's power to make certain orders depends upon whether a contravention is alleged but not established; whether a contravention is made out but there is a reasonable excuse for the contravention or, as the primary judge here found, that there was a contravention without reasonable excuse. In the case of the latter, Subdivision E applies for less serious contraventions and provides the various powers for dealing with contraventions in that category. Those powers do not include imposing a sanction of imprisonment. Subdivision F and the more serious penalties, including imprisonment, provided for in that Subdivision, are reserved for more serious contraventions.
   2. It can thus be seen that the scheme of Division 13A is to progress from lesser to greater seriousness or punitiveness, with a correlative progression from the usual civil standard of proof to the criminal standard.
   3. Section 70NFG(2) of the Act provides that a court "must not sentence a person to imprisonment ... unless the court is satisfied that, in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention under any of the other paragraphs of subsection 70NFB(2)". Section 70 NFG(3) then provides:

(3) If a court sentences a person to imprisonment under paragraph 70NFB(2)(e), the court must:

(a) state the reasons why it is satisfied as mentioned in subsection (2); and

(b) cause those reasons to be entered in the records of the court.

1. No reference was made, or apparently in the circumstances needed to be made, to the matters set out in Langer & Griffin.

1. The Appeal Division decision of Galvis & Galvis (2024) FLC 94-200; [2024] FedCFamC1A 123 ('Galvis') was decided on 26 July 2024. Austin J sat as the Appeal Division (for convenience that court will be referred to as 'the Full Court').
2. In that case, parenting orders applied and provided that the children live with the applicant mother and spend school holiday time with the father, who lived in a different State of the Commonwealth. For a school holiday changeover, the parents met at the airport for the children to be handed over to the father, and they were, but the changeover was difficult. The father's flight was delayed. The mother did not leave the vicinity but 'loiter[ed] around...giving him directions'. The mother was found to have 'interfered' as contemplated by section 65N(2)(b). Further, she was found to have failed to have provided one of the children's mobile phone numbers to the father as required. Further, the mother had not provided the children's passport details to the father as required. For the four proven contraventions of orders, one aggregate penalty of a good behaviour bond was imposed.
3. At [45] the Full Court allowed the appeal and found that individual sanctions for each contravention should be imposed. Relevantly for this case, the Full Court's observations included:
   1. Despite some past circumspection by the Full Court about the use of common law sentencing principles to guide the determination of sanctions for contraventions of parenting orders (McClintock v Levier at [125], [156]-[158] and [233]-[237]), more recently the Full Court has embraced the use of such principles (Langer & Griffin [2013] FamCAFC 170; (2013) FLC 93-559 at [55]). ...

...

1. On that premise, his Honour then selected a good behaviour bond as the appropriate sanction (at [132]-[135]). In the reasons for judgment, his Honour did not explain: any comparative assessment of the objective seriousness of the appellant's conduct in respect of the four contraventions to justify differentiating the length of the bond commensurate for each; the existence and the nature of aggravating and mitigating factors; why the period of 12 months was ultimately selected as the appropriate head term of the good behaviour bond in the context of a maximum bond period of two years; or how that type of sanction was selected in preference to others to satisfy the objectives of general deterrence and specific deterrence.
2. The imposition of a penalty is an exercise of discretion (Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 324-326, 329 and 339-349) involving "a process of instinctive synthesis of multiple factors" (Stanley v DPP (NSW) [2023] HCA 3; (2023) 407 ALR 222 at [59]). Accordingly, the exercise must entail the consideration of material factors, the disregard of irrelevant factors, and be properly explained. The reasons for judgment do not demonstrate that happened here.

1. I am bound by the Full Court in McClintock and in Galvis and, were I not bound, these observations would be highly persuasive and should be followed.

1. Relying on Langer & Griffin as affirmed in Galvin, counsel for the Grandmother referred me to what he described as sentencing principles applicable to determining penalties in contravention matters. Counsel submitted Langer & Griffin at [55] lists the factors which should be considered in determining the penalty of the Grandmother. I accept that submission.
2. On the basis of Galvis applying Langer & Griffin, counsel for the Grandmother proceeded to address what the Full Court in Langer & Griffin termed the 'seminal considerations to the sentencing procedure'. I am satisfied that the submissions made by counsel in regard to each of those considerations are relevant, and ought to be taken into account. Each of them are considered below.

1. It was not submitted that the circumstances of this case, or what the Grandmother was found to have done, and the circumstances of the children consequent upon the contravention of the Final Orders is anything other than most grave or very serious. Rather, counsel for the Grandmother submitted that what is relevant to the assessment of sentencing the Grandmother is her level of culpability. Counsel's submissions included:[7]

MR FOO: ... whilst my client has some level of culpability with respect to what the current situation is, your Honour had question marks over her level of culpability from [early] 2022. And those incidents occurred, obviously, in [Country D], when your Honour heard the evidence of the police in [Country D] assisting, at the behest of the father, to take the children away from their mother, and arrest her in [Country D].

Now, the level of culpability when your Honour assesses this part of the exercise towards my client, I have these things to say. Firstly, the father is the ultimately culpable perpetrator, if I put it this way, of what has happened. So I echo my learned friend for the independent children's lawyer, when he says that whatever sentence your Honour takes of the father, it has to be less for my client, because it reflects the level of culpability in relation to what the situation is for these children.

1. In making this submission, counsel sought to establish that the evidence does not indicate that the Grandmother is the 'ringleader and the director' of the paternal family in orchestrating the contravention of the Final Orders. Rather, it was submitted that the evidence establishes that the Father is the 'head of the household'. This was said to be clear from the WhatsApp messages in evidence between the Grandmother's daughter, Ms P Wemble, and the Father, as well as the document exhibited at the Penalty Hearing as 'F6 - 25August 2025' where the Father sets out what I infer are his submissions in regard to these proceedings. In regard to F6, counsel submitted:[8]

MR FOO: I would go as far to say that that letter is also evidence that there is a huge difference between the status levels of the father and my client, and even goes more to the argument that the father is the head of the household on the paternal side.

1. I have found in the Findings Reasons, at [320]:
   1. It is part of the Mother's case that all acts and matters relating to the removal of the children and them being placed with the father [was] orchestrated and directed by the Grandmother. I am not satisfied of that circumstance, either on the balance of probabilities or beyond reasonable doubt. However I am satisfied and satisfied beyond reasonable doubt that the Grandmother is a significant person in the life of the Father and has influence and considerable influence over important decisions the Father makes in his life in regard to family or marriage matters.
2. I refer to and repeat that observation. The Grandmother's role has been, as a person who has considerable influence over decisions the Father makes in life in regard to family and marriage matters, to have aided and abetted the Father's contravention of the Final Orders. However, I do accept that the culpability of the Grandmother was and is less than that of the Father, and I take that into account. But for the purpose of enforcing compliance with the Final Orders, the Grandmother's penalty must reflect the nature of what she has done and that is to have aided and abetted the Father in a most egregious or serious and continuing contravention of the Final Orders and such that the welfare of the children has been, and continues to be, seriously at risk. But the primary object of the penalty I will impose is to coerce the Grandmother to use her influence to coerce the Father to comply with the Final Orders and return the children to the Mother's care in Australia. I intend that the penalty also be retributive, or punishment, as well as having the effect of general deterrence.

1. In regard to deterrence, counsel submitted that the relevant conduct of the Grandmother is not a continuing offence. That is, as counsel put it, 'the reality of the situation is that the children are being continually held by their father in Country D and [the Grandmother] is here in Australia.' Therefore, the substance of counsel's submission was that specific deterrence ought not be a significant consideration in sentencing the Grandmother, given that her involvement in the relevant contraventions, according to the Grandmother's case, has ceased.
2. I do not accept that the Grandmother not physically being in Country D necessarily means that she does not continue to support the continued holding of the children by the Father. I am not satisfied that the Grandmother's support of the continued holding of the children by the Father, either by way of financial or moral support, has ceased. As discussed with counsel at the hearing, the Grandmother indicated in her material and during her evidence in chief in the contravention hearing that it is, in her view, culturally appropriate for the children to be in Country D with the Father. I refer again to her affidavit of 3 April 2024:
   1. Almost all children in [Country D] from separated families live with their father's family.
3. The children continue to be held by their father in Country D but with the moral and financial support of the Grandmother. The major purpose of the penalty of this decision is to cause her to cease that support and to use her influence to have the Father comply with the Final Orders.
4. As to general deterrence, it is important that individuals who share the views of Father, that what he wants takes precedence over court orders, understand how wrong that view is and that there may be grave consequences for acting against court orders. Individuals who may be inclined to aid and abet a relative, friend or colleague to contravene a parenting order should understand that there may be serious consequences for such a course of action. Further, such persons should understand that where an asserted cultural belief is inconsistent with a court order, that the court order is to be obeyed and certainly not contravened by aiding and abetting.

1. It must be acknowledged that counsel for the Grandmother's submissions on penalty were constrained and bound by the Findings Reasons. Sensibly, counsel did not attempt to contradict those findings. In that context, it was not submitted that the prospect of rehabilitation, in the sense of the Grandmother changing her ways and attitudes to the Mother and to the children being retained by her son, the Father, was realistic or otherwise relevant to the sentencing or penalty exercise.

1. Counsel for the Grandmother also submitted that the cultural element of the Grandmother's support for the children to remain with their father in Country D was a relevant consideration that I should take into account. In this case, the Father's assertion by his actions of what he, not entirely accurately,[9] says are the cultural norms of his society and the Grandmother's support of that is at the heart of the motivation to contravene the orders and has caused much trouble and distress. That does differentiate the case from one where the sole motive is financial gain. But in the circumstances of the purported reliance upon cultural values as justification for continuing contravention of the Final Orders, I place little weight on that circumstance as a mitigating factor.
2. Counsel for the Grandmother took me to what he submitted were three significant aspects of the Findings Reasons that ought to be considered mitigating factors in the sentencing exercise. The first was in reference to the following paragraph from the judgment:
   1. I am satisfied, beyond reasonable doubt, that at that time, the Grandmother agreed with and supported the Father in the contravention of the order that was intended to have the Mother make the day-to-day decisions for the children and have them live with her. However because the local police had arrested the Mother, it maybe that the Grandmother's intention of supporting the Father and thus aiding and abetting that detention of the children contrary to the Final orders was influenced by the apparent local police involvement. The Mother's case has not excluded that possibility....
3. Counsel for the Grandmother emphasised my uncertainty as to the level of influence that local police involvement in Country D in 2022 had on the Grandmother's intention of supporting the Father. This, it was submitted, is a significant mitigating factor in determining an appropriate sentence for the Grandmother.
4. It was submitted that paragraph 239 of my judgment above ought be read together with the following:
   1. Further I am not satisfied beyond reasonable doubt that the possibility that the Grandmother felt entitled to support the Father as she did, because of the local police involvement in the events of [early 2022] has been excluded.

And it was submitted that the effect of those paragraphs, read together, was to mitigate the Grandmother's culpability and therefore indicate a lesser sentence. I am not sanctioning the Grandmother for the events of December 2021 and those in early 2022. Those events are only relevant as demonstrating that the contravention of early 2022, the ultimate removal of the children, was not a spur of the moment error of judgment but was consistent with a view that the children should live with the Father despite the Final Orders and that such view was communicated to the Father.

1. In addition, counsel took me to paragraph 286 of the Findings Reasons, where I had noted:
   1. The continued, albeit limited, financial support provided to the Father by the Grandmother and [Ms P Wemble] to this day to support the Father and the children ...

Counsel submitted that this supported the argument that the Grandmother's culpability ought to be considered reduced, as it does not demonstrate that she is 'a ringleader or financial backer'.

1. I clarified with counsel during the hearing what was meant by 'limited' financial support in the Findings Reasons:[10]

HIS HONOUR: The reference to limited financial support is that your client has very limited financial resources and her evidence was clear: she helps her son to the limited extent that she's able. Now, she's not a wealthy woman giving him a little bit of money. She's a woman in very modest circumstances is what I'm proceeding on the basis of - - -

- - - and giving him what in Australian terms are small amounts of money.

But in terms of what she can afford, to be blunt, the impression of her evidence was: it's any spare cash she has goes to [Country D] to support her son up to the date of the hearing.

1. The continuing contravention and the Grandmother's support of that is a significant matter to be taken into account and a circumstance that aggravates the seriousness of the matter.
2. Counsel also took me to the relevant parts of my judgment that indicated aggravating factors relevant to the sentencing of the Grandmother, including:
   1. Further the Grandmother did not demonstrate in affidavit or oral evidence any empathy for the position of the children, even on the state of affairs as she alleged them to be, of living in a "third world" or "developing country" and not in the country of their citizenship and childhood, that is in Australia as she herself, notwithstanding her [Country D] culture, chooses to live. The Grandmother did not demonstrate in affidavit or oral evidence any empathy, or understanding, of the fact that the Mother has not seen or spent any time with the children since [early] 2022.

...

1. It was apparent during the hearing, as this evidence was explored during the cross-examination [by] counsel for the Independent Children's Lawyer, that the Mother was sitting in the court and, as to some aspects, enduring hearing the first time how sick her son had been[11], and I was able to observe her demeanour during that inevitably traumatic event in the courtroom.

2. The other matter apparent from the nature of the WhatsApp communication between the Father and [Ms P Wemble] (and I am satisfied of the substance, but not necessarily the detail was known to the Grandmother) was the complete absence of any expressed, or implied, sentiment of empathy for the circumstance of the Mother, of having been separated from her children for so long. Further, I was able to observe in the courtroom the lack of any apparent empathy for the Mother when the Mother learnt of the extent of severe illness of her children (and in particular [X]) during cross-examination involving [Ms P Wemble]'s WhatsApp messages.

...

1. ... I am satisfied and satisfied beyond reasonable doubt that the Father, and the Grandmother in aiding and abetting him, showed a serious disregard for his and her obligations under the Final Orders.

2. I am so satisfied, in the case of the Father and the Grandmother, because of;

(a) the contraventions proven occurred very shortly after the Final orders were made; and

(b) the agitation of the demand for the children to live with the Father in [Country D] commenced in a planned and prepared manner with the involvement of the Father and the Grandmother in the 17 December 2021 meeting in complete disregard to the Final orders; and

(c) the absence of any communication or information to the Mother as to the children's welfare from [early] 2022; and

(d) the nature of the manner in which the children were removed from the Mother's care [in early] 2022 and the manner they have thereafter been retained by the Father and with the Grandmother's support; and

(e) the serious impact of the children's welfare including the forced separation of the children from the parent who had cared for them all their lives until their removal and retention on and after [early] 2022, the serious impact on their health caused by the detention, the impact on their education and the incalculable detriment of being prevented from living in the country where they are citizens and had lived all their lives until the holiday to [Country D].

1. Counsel conceded that these circumstances would likely be considered aggravating factors in the sentencing of the Grandmother. I am satisfied they are.

1. As submitted by counsel for the Grandmother, it is relevant that I consider comparable sentences. I would do so if there were truly comparable sentences. Fortunately, contraventions as serious as this are rare. I am not satisfied that any of the authorities provide any sort of comparable sentence or range for this contravention.

1. I proceed on the basis that any term of imprisonment, whether a day or a week or a month, is a most severe interference with the personal liberty of the Grandmother, to which she is otherwise entitled in the Commonwealth of Australia. I proceed on the basis that any sentence of imprisonment should only be applied if no other less invasive sanction is appropriate and a sentence of imprisonment is appropriate. In this case, in all of the circumstances, and most importantly the seriousness of the contravention, its continuing nature and the impact of the contravention on the welfare of the two children, I am satisfied it is necessary to impose such a serious penalty upon the Grandmother to have any significant traction or coercion upon her and upon the Father. Any lesser penalty than imprisonment in this case would effectively provide no coercion and no substantive or real enforcement of the Final Orders.

1. Counsel for the Grandmother submitted that a substantial fine was the appropriate penalty and that no purpose was achieved by the maintenance of the 'watchlist order'. Counsel for the Grandmother concluded his submissions as follows:

MR FOO: It might be a consideration that your Honour takes when you consider if she has now suddenly come to her senses to appreciate the seriousness of these proceedings or not, but on what I am instructed, given her financial position, given what she's able to offer, what she would say is that a fine would be the appropriate and harsh sentence that would obviously be appropriate to her. Now, your Honour notes that the maximum fine that you can enact under the legislation is 60 penalty units. There is the recent Full Court decision of Nishitani that puts how much that is. Whether you - your Honour had that discussion in the transcript of how much one penalty unit is ... Roughly, it is AUD$19,800 and, on my instructions, the family will have to take out loans, borrow, beg to make that fine with a stay of 30 days. That is what my client proposes as the most appropriate sentence.

Turning lastly - and I appreciate your Honour's patience in my submissions. It has been long and slow, but it is a very important decision that will impact my client's liberty. So the last issue is the watchlist. The very basis for having that in the beginning is now past. In my submission, it was necessary to ensure that my client were here for the contravention proceedings. In fact, it was issued even before the contravention proceedings were issued by the mother.

So now that it has served its purpose, your Honour might have that power under section 70NFB(7) to initiate that, or to implement that as an order that is necessary. If your Honour says a term of imprisonment is appropriate, then your Honour should not put that as an additional tag onto an order of imprisonment because then it becomes, in my submission, a further punishment of my client where your Honour has proven the contravention and carried out the sentencing. In my submission, there will be no basis for it. ...

1. The Grandmother is aged 58 and is a pensioner. She is of the most modest financial circumstances. She has the family support of her daughter, Ms P Wemble, who lives with her, and she also has the support of another of her adult children here in Australia.
2. Having observed the Grandmother consume large amounts of oral information during the hearing (after that information had been translated to her) and respond effectively to it when she had chosen to, I am well satisfied that the Grandmother is of significant intellect and of a courteous, but powerful personality. Nonetheless, the Grandmother does not speak any English and requires the assistance of an interpreter for almost all formal functions. As addressed in the medical report tendered in evidence,[12] the Grandmother suffers hypertension, back pain and renal impairment. There is no evidence as to how those conditions impact the Grandmother on a daily basis, but I infer and am satisfied that those conditions would make any sentence of imprisonment more arduous for her than if she did not have those conditions. The Father's submissions contained in exhibit F6 included the assertion that, 'my mother is on the verge of committing suicide AND my younger sister is suffering from psychosis...'. It was not contended to me by the Grandmother that she was suffering mental ill health or had any suicidal ideation and I am not satisfied on the balance of probabilities that the allegations of the Father in that regard are made out. But I do accept that these proceedings have been most burdensome upon the Grandmother.
3. I also take into account that unless the children are returned to Australia, it is likely that the Grandmother's sentence of imprisonment will coincide with the traditional secular holiday and celebratory seasons of December and the New Year.
4. I proceed on the basis and take into account that any period of imprisonment will be a most arduous penalty upon the Grandmother and that the family of the Grandmother and the Father would see it as so.
5. There is also the circumstance that the Grandmother has significant and important family and cultural links to Country D; that is, the place where the Father lives and retains the children. The Mother and counsel for the ICL seek that, in conjunction with any other sentence, the Grandmother be restrained from travelling outside of Australia, and so limiting her joy and satisfaction of engagement in otherwise important family and cultural activities in Country D.
6. I accept that to restrain the Grandmother from travelling to the place of her important family and cultural connections would, of itself, be a serious penalty upon her. That restraint, to some degree, has the potential to coerce her to attempt to coerce the Father to return the children to the care of the Mother in Australia so as to permit the Grandmother to reengage in those important family and cultural events.

1. At the start of the case, the Mother's solicitor had pressed for a sentence of imprisonment of 12 months. On the Penalty Hearing, it was conceded that an appropriate sentence may well be less than 12 months, but the substance of the submission was that a sentence of imprisonment was appropriate and necessary to enforce the return of the children to the Mother's care in Australia. It was also submitted that the Grandmother's conduct may separately constitute offences under the Commonwealth Criminal Code. Whether or not it does, I am proceeding on the basis that there are no other proceedings pending or proposed against the Grandmother. I do not accept the invitation that, in addition to imposing a penalty upon the Grandmother in these proceedings, I should refer her for further prosecution. The scheme of Division 13A is clearly against double jeopardy. See section 70NFH(4).
2. The Mother pressed the continuation of the 'watchlist order'. In all of the circumstances of the substantial grief that the Mother has suffered at the hands of the Father and the Grandmother, her position in these proceedings and submissions as to penalty can only be described as dignified and restrained.

1. The submissions of counsel for the ICL were very cognisant of the seriousness of the contraventions, but also of the serious impact upon the Grandmother of any sentence of imprisonment. It was submitted that whatever penalty was to be imposed upon the Father, the penalty to be imposed upon the Grandmother had to be less. In the circumstances where I am not imposing any sanction on the Father at the moment because he is not available to the jurisdiction, I place only limited weight on that position. Nonetheless, I accept that submission as a generality.
2. Counsel for the ICL supported a penalty of imprisonment because of how serious the underlying contravention by the Grandmother was but submitted that consideration should be given to suspending any sentence of imprisonment against the Grandmother. In that context, I posed the question to counsel of how a suspended sentence upon the Grandmother would impact on the Father returning the children. It was submitted that a suspended sentence would limit the prospect of any further aiding and abetting of the Father's retention of the children, but that the prospect of the Father being pressured to return the children to the jurisdiction was 'slim'.
3. Counsel for the ICL submitted that what was described as the 'watchlist order', an injunction preventing the Grandmother from leaving the Commonwealth of Australia, was appropriate and would work in conjunction with a suspended sentence. It was submitted that an appropriate restraint order, or 'watchlist order', would continue until the 18th birthday of the younger child. I infer that that submission contained the implied proposition that such a restraint should continue to that time unless the children were returned to the Mother's care.
4. Counsel for the ICL submitted that a community service order would be more in the form of punishment for past events, rather than coercing future compliance with the Final Orders. Counsel further submitted that in the circumstances of the Grandmother's limited financial means, fines were not an appropriate penalty.

The Father's submissions on the Penalty Hearing

1. I took into account the Father's written submissions on the penalty contained in F6.[13] Those submissions were, in substance, an argument or quarrel with the factual observations in the Findings Reasons and merely an attempt to justify the Father's continuing contravention of the Final Orders. The submissions continued to denigrate the Mother and demonstrate a preoccupation with an assertion that many years ago the Mother was unfaithful at some point. I do not accept that allegation and, in any event, it would not be relevant to the matters in issue in this contravention application. The denigration of the Mother included:
   1. I [Mr Wemble], am not a cow-bull where I can produce my offspring let them roam randomly with a multi-partner ex-wife. Also, she is not a surrogated mother where I disown her right of the motherhood but she can come back to them when they independent adults.
2. I also refer to and repeat the observations of the Father in F6 and his response to my Findings Reasons, including the following:
   1. Your provisional findings (verdicts) and conclusion of your judgment missed some vital points at the side of my mother (2nd respondent) and me (1st respondent) and they are:
   2. Your one sided judgment has brought psychological disturbances, social effect, economic factors, behavioural issue and sweetness of Australia ([Oz])'s life to an end. Therefore, in the near future, this will have adversely [sic] repercussions to you [...]

...

[...] I'm shocked and speechless toward your judgement [...]

...

1. Life that may be lost due to this recurring family court hearing because my mother is on the verge of committing suicide AND my younger sister is suffering from psychosis

1. It is apparent, and I infer from F6, that the Father is concerned at the potential for imprisonment of his mother. I place some weight on that, but the Father's general assertions that the findings of the Findings Reasons are wrong does not assist the Grandmother.

1. Although I have not recited the provisions of Subdivision E of Division 13A, that is, 'less serious contraventions', I am cognisant of those provisions. Notwithstanding that a contravention may be 'more serious' within the definition contained in Subdivision F, the penalty regime of the 'less serious' Subdivision E may be applied, if appropriate. Given the objective serious nature of the Grandmother's aiding and abetting contravention, the continuing nature of the contraventions and the seriousness of the penalty necessary to have any coercive or compulsive effect upon the Grandmother and upon the Father such as would contend towards compliance with the Final Orders, I am satisfied that Subdivision E is not appropriate.
2. A significant aspect of the penalty in this case is the assessment of any likely coercive effect upon compliance by all concerned with the Final Orders. As recited previously, I am not satisfied that the Grandmother 'orchestrates and directs' the Father in what he does in regard to his life, including his retention of the children. I am satisfied, and satisfied beyond reasonable doubt, that the Grandmother has had, and continues to have, significant influence upon the Father and hence, significant influence upon whether or not the Final Orders will be complied with.
3. Further, there is no evidence that the Father does not maintain ordinary everyday affection and regard for the Grandmother because she is his mother. His submission on penalty in exhibit F6 expressing anger at the Findings Reasons demonstrates his umbrage, if not outrage, at the finding against him but also against the finding against the Grandmother, his mother. [14] I draw the inference that the Father does have affection and regard for his mother, the Grandmother, and will be aggrieved and troubled that she will be imprisoned because of a contravention of the Final Orders by each of them. I infer, and am satisfied beyond reasonable doubt, that the Father will be motivated by the certainty of imprisonment of his mother to reconsider his intention to continue to detain the children contrary to the Final Orders. Were he to do so, he would have achieved the most substantial immersion of the children in his lifestyle and lifestyle culture.
4. Turning now to each of the many provisions of the legislation, I make the following findings.
5. As to section 70NFA(2), I am satisfied that the Grandmother has not previously had a sanction imposed on her in respect of a contravention or such proceedings being adjourned. But I am satisfied, and satisfied beyond reasonable doubt, that the Grandmother in aiding and abetting the Father as described in the Findings Reasons, has behaved in a way that shows serious disregard of her obligations under the primary order, that being not to aid and abet a contravention of an order.
6. As to section 70NFA(4), I am satisfied that it is more appropriate that this contravention be dealt with under Subdivision F of the Act, rather than Subdivision E.
7. As to section 70NFB(1) (that is, I must consider a cost order under paragraph (2)(g)), I am satisfied that it is not in the best interests of the children to make a costs order against the Grandmother as a penalty. That is because of her limited financial resources and the likely difficulty of enforcing any such order.
8. As to the suite of powers under section 70NFB(2), I deal with those as follows. By section 70NFB(1)(c), if I am not going to make an order for costs as penalty, and I am not, I must make at least one order under subsection 70NFB(2).
9. As to section 70NFB(2)(a), I am satisfied that a community service order is not appropriate because such order would have a limited coercive effect on the Grandmother and upon the Father such that it would make the return of the children to Australia to the care of the Mother more likely.
10. An available penalty is to command the Grandmother to enter into a bond to be of good behaviour and/or or to comply with any other conditions (section 70NFE). Such a penalty will often be efficacious where the proven contravention has ceased or already been remedied. Here, the contravention continues. I am satisfied, and satisfied beyond reasonable doubt, that in those circumstances, either a community service order or a bond would be inappropriate.
11. As to the concept of 'make up' or 'compensatory' time (section 70NFB(2)(c)), such a concept is frequently efficacious where the contravention has ceased or been remedied or soon will be. I am satisfied beyond reasonable doubt that such concept is not appropriate to this case. In any event, where the existing order is that the children live with the Mother, compensatory time does not arise.
12. I must consider a fine of not more than 60 penalty units (see section 70NFB(2)(d)). A Commonwealth penalty unit is currently $330.[15] This would be a severe penalty. I am satisfied, and satisfied beyond reasonable doubt, that the Grandmother does not have the financial capacity to pay other than a most modest financial penalty. I am satisfied that it would not be appropriate to impose a severe financial penalty knowing that that such a penalty is beyond the capacity of the Grandmother to pay. That her family may support her does not create a capacity for her to pay and potentially imposes the penalty on others who have not been proven to have contravened the Final Orders. A modest financial penalty would be inappropriate to the continuing nature of the contravention and the seriousness of the contravention.
13. Section 70NFB(2)(e) permits and contemplates the imposition of a sentence of imprisonment on the contravener in accordance with section 70NFG. I refer to and repeat the provisions of section 70NFG recited earlier in these reasons. I must determine whether a period of imprisonment is appropriate at all and, by section 70NFG(2), I must not sentence a person to imprisonment unless I am satisfied in all of the circumstances that it would not be appropriate for the court to deal with the contravention by way of any of the other items of the suite of powers under section 70NFB(2).
14. In all of the circumstances as found in the Findings Reasons, and as discussed in these reasons, I am satisfied, and satisfied beyond reasonable doubt, that in all of the circumstances of the case, it is not appropriate to deal with the contravention under any of the other paragraphs of section 70NFB(2). That is to say, it is not appropriate to deal with the contravention by way of a community service order (if such a facility was available), or by way of commanding the Grandmother to enter into a bond, or by way of ordering compensatory time, or by imposing a fine. The primary reasons why those matters are not appropriate to deal with this contravention are the serious and egregious nature of the contravention, the continuing nature of the contravention, and because I am satisfied that those other penalties and manner of dealing with the contravention would not enforce compliance with the Final Orders.[16] Those other and lesser penalties would not provide sufficient coercion or motivation for compliance with the Final Orders.
15. The maximum period of imprisonment is 12 months. I regard this contravention as most serious or egregious. That seriousness and the continuing nature of the contravention necessarily brings into play a consideration of the maximum penalty. That is, imprisonment for 12 months. However, considering the matters peculiar to the Grandmother discussed above, and the circumstance that she has not previously been found to have committed a contravention of parenting orders, and the circumstance that any period of imprisonment will bear most heavily on her, I am satisfied beyond reasonable doubt that the maximum penalty is not appropriate. Balancing all of those matters, I am satisfied, and satisfied beyond reasonable doubt, that a sentence of imprisonment is, sadly, appropriate.
16. By section 70NFG(5), the Court has the power to suspend that sentence of imprisonment upon terms and conditions. I have considered whether the sentence of imprisonment should be suspended. A sentence of imprisonment, but suspended, would frequently be efficacious where the contravention has been remedied but there is a risk of further contraventions. In this case, the contravention is continuing and remains unremedied. I am satisfied, and satisfied beyond reasonable doubt, that to suspend the appropriate period of imprisonment would undermine or dilute the primary purpose of Division 13A of enforcing compliance with orders under the Act affecting children. I am satisfied, and satisfied beyond reasonable doubt, that to suspend the sentence of imprisonment would merely reinforce the existing state of affairs.
17. Were I satisfied of the case advanced by the Mother, that the Grandmother 'orchestrates and directs' the Father in regard to family affairs including his retention of the children, that would bring into play the contemplation a sentence of imprisonment suspended but suspended upon the condition that the children are returned. In this case, the Grandmother has significant influence but not direct control.
18. In all of those circumstances, I am satisfied, and satisfied beyond reasonable doubt, that it is not appropriate to suspend the sentence of imprisonment on conditions.

1. As discussed with counsel at the Penalty Hearing and authorised by section 70NFG(1)(a) (a specified period), I will order that the sentence of imprisonment commence six (6) weeks hence - that is, 42 days hence - to provide the further opportunity for the children to be returned to the Mother's care in the Commonwealth of Australia. I note that the Mother proposes to be responsible for that expense, when that comes to pass and I accept she will be. I repeat, were the children to be returned to the Mother's care in the Commonwealth of Australia within that 42-day period, application could, and should, be made to me pursuant to section 70NFG(8) for the Grandmother to be released from such sentence of imprisonment. Further, such application could be made if the children are returned to the Mother's care in the Commonwealth of Australia during the sentence itself.
2. Further, I am satisfied that it is in the interests of justice to defer the commencement of the sentence of imprisonment for six weeks to assist the Grandmother to order her affairs and to come to grips with the certainty of the sentence of imprisonment.

1. For emphasis, I repeat section 70NFB(7) of the Act.

(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.

1. It was not contended that the Court was without power to make the permanent watchlist order sought. Rather, that such an injunction should not be made because there was no longer utility in such an order. I regard a watchlist order until the youngest child, Y, is 18 years of age (Y will turn 18 in 2031), as of such duration as to be a permanent injunction. The injunction would cease to have effect on the 18th birthday of the youngest child, in any event.[17]
2. I am satisfied that the wide power apparent in that section must necessarily mean that the order to ensure compliance must be tethered to the circumstances of the contravention, the circumstances of any other order under section 70NFB(2) and be such as to promote compliance with the order that has been contravened.
3. Apart from section 70NFB(7), I am satisfied that there is power to make such an injunction if the circumstances fit within section 68B(1) and (2) of the Act. Section 68B provides as follows:

(1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:

(a) an injunction for the personal protection of the child; or

(b) an injunction for the personal protection of:

(i) a parent of the child; or

(ii) a person with whom the child is to live under a parenting order; or

(iii) a person with whom the child is to spend time under a parenting order; or

(iv) a person with whom the child is to communicate under a parenting order; or

(v) a person who has parental responsibility for the child; or

(c) an injunction restraining a person from entering or remaining in:

(i) a place of residence, employment or education of the child; or

(ii) a specified area that contains a place of a kind referred to in subparagraph (i); or

(d) an injunction restraining a person from entering or remaining in:

(i) a place of residence, employment or education of a person referred to in paragraph (b); or

(ii) a specified area that contains a place of a kind referred to in subparagraph (i).

(2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

1. An injunction restraining the Grandmother from leaving the Commonwealth of Australia so as to prevent her from travelling to Country D in the circumstances of the likely emotional distress to the Mother of such visits would be, and is, an injunction for the personal protection of the Mother, a parent of the children.
2. On an interim basis, the watchlist order restraining the Grandmother from leaving the Commonwealth of Australia was made as an interim injunction. That is, there was an arguable case to answer, and the balance of convenience favoured the injunction in all of the circumstances. That interim injunction was made pending final resolution. Hence, it is necessary to consider, and consider afresh, whether such a severe limitation upon the liberty of the Grandmother should be made. Such limitation would continue after the completion of the other part of the sanction, that is, the sentence of imprisonment.
3. I am satisfied that section 70NFB(7) and section 68B(2) provide power, in the circumstances of the proven contravention, to make the watchlist order pressed. That there is power to make an order does not necessarily justify or explain why it is appropriate to exert that power.
4. I accept and proceed on the basis that the Grandmother has real and profound cultural and family connections to another country such that to be unable to travel to that other country to engage in those cultural and family matters is itself a serious penalty and burden upon her.
5. The practical reality is the children are not free to travel to the Commonwealth of Australia to visit or live with their mother. The circumstances of the Mother's imprisonment when in Country D and the imprisonment of her father whilst she was there demonstrate that it is not realistic or practical for the Mother to contemplate visiting Country D for the purpose of seeing or spending time with the children who should be living with her. Further, the evidence of the Mother having not seen or spoken to the children (save for one phone call) since the children's removal and the inferences that can be drawn from that circumstance demonstrate that even were the Mother to take the risk of travelling to Country D, the Father would not permit her to see the children.
6. In that circumstance, for the Grandmother to be able to freely travel to and from Country D for cultural and family purposes and to be able whilst there to interact with the children as their grandmother when their mother is prevented by the contravention from interacting with the children as their mother, would be a serious and continuing injustice to the Mother and to the children. It would more than rub salt in the wounds of the children and the Mother. Such event has the potential to cause emotional and psychological injury and harm to the Mother and to the children. Such a circumstance would be exacerbated by the demonstrated lack of empathy of the Grandmother, and of the Father, for the circumstance of the Mother having the children removed from her care and not being able to realistically see or interact with them.
7. Further, for the Grandmother to be able to travel to Country D to attend family matters that include visiting or interacting with the children, and the Mother not so, would undermine the purpose of Division 13A, being to enforce compliance with the orders. That is so because to permit such interaction, whether before or after the conclusion of the sentence of imprisonment, would effectively permit the continuance of the entirely unsatisfactory status quo of the children being retained contrary to the Final Orders and the Grandmother and the Father, the contraveners of the Final Orders, being able to interact with the children as they see fit. Such a situation is entirely contradictory of, and repugnant to, the purpose and substance of the Final Orders and the purposes of Division 13A.
8. Accordingly, I am satisfied that it is appropriate that the watchlist order be made and remain in place until the day before the 18th birthday of the youngest child.

1. The questions raised by the Full Court in Dobbs at [89] may have been intended to only apply to that case. However, those 'questions' assist me in providing an orderly account of my reasons for the penalty in this case. As to the first dot point,[18] I am satisfied that in this case there is the significant potential for a different result in terms of compliance with the Final Orders of a suspended sentence compared to actual imprisonment. The purpose of the sentence is as stated in these reasons; that is, to promote compliance with the Final Orders, as well as to mark the contravention with some modest measure of retribution (see Dobbs at [84]) and to promote the essential working of the court system, whereby court orders are obeyed. The circumstance that the Final Orders have not been complied with to this point, notwithstanding the contravention proceedings, is significant in the sentence but is not the only foundation of it. Further, the ultimate sentence of imprisonment, and imprisonment is, I am satisfied, the right order in respect of the contravention and, as should be apparent by these reasons, has not been reached by default.

1. That the penalties I impose cannot guarantee, or even make it the most likely outcome, that the Father will promptly return the children to the care of the Mother in the Commonwealth of Australia does not mean that those penalties will be without effect or that those penalties do not and will not contend for the return of the children to their Mother's care or are otherwise not appropriate. Balancing the overwhelming benefit to the children and to the Mother of the Father and the Grandmother's compliance with the Final Orders with the limited certainty that the penalties contend towards that end, I am satisfied that it is appropriate that the very severe penalty of imprisonment hangs over the Grandmother's head and, effectively, hangs over the head of the entire family, including the Father, until the commencement of the sentence. That course is, on all the information available to me, the sanction most likely to effect the return of the children to the Mother's care in Australia.
2. Even if that object cannot be achieved, in all the circumstances and taking into account the purposes of Division 13A and the sentencing principles discussed in these reasons, including retribution and general deterrence, the sentence of imprisonment sadly remains the only appropriate sentence.
3. It may be that the Father is sufficiently callous to the plight and circumstances of his mother, the Grandmother, notwithstanding his direct and continuing role in causing that plight, that he is not motivated to return the children to the care of the Mother. I have not seen evidence that would satisfy me that, when it comes to the circumstances of his mother, that he would be so callously disregarding of her welfare.

I certify that the preceding one hundred and thirty-one (131) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

70NFC When court is empowered to make a community service order

(1) Subject to this section, if, under the law of a participating State or a participating Territory, a court is empowered (whether generally or in particular cases) to make a community service order in respect of a person convicted of an offence against the law of the State or Territory, a court exercising jurisdiction in the State or Territory may, under paragraph 70NFB(2)(a) make a community service order.

(2) A community service order made under paragraph 70NFB(2)(a):

(a) is to be such that the total number of hours during which the order regulates the conduct of the person in respect of whom it is made does not exceed the maximum period in relation to the State or Territory in which the order is made; and

(b) ceases to have effect 2 years after it was made, or after such lesser period as is specified in the order.

(3) A community service order may be an order of any of the following kinds:

(i) a community service order; or

(ii) a work order; or

(iii) an attendance centre order; or

(iv) an attendance order; or

(v) a community based order;

(b) an order that is similar to an order referred to in paragraph (a);

(c) an order prescribed for the purposes of this paragraph.

(4) If a court exercising jurisdiction under section 70NFB in a particular State or Territory makes a community service order under paragraph 70NFB(2)(a), the provisions of the laws of the State or Territory with respect to a community service order that is made under those laws are, to the extent provided by the regulations and subject to such modifications as are specified in the regulations, to apply in relation to the order.

(5) If a court proposes to make a community service order under paragraph 70NFB(2)(a), it must, before doing so, explain to the person in respect of whom it is made, in language likely to be readily understood by the person:

(a) the purpose and effect of the proposed order; and

(b) the consequences that may follow if the person fails to comply with the proposed order or with any requirements made in relation to the order by or under the applied provisions; and

(c) if the proposed order may be revoked or varied under the applied provisions - that the proposed order may be so revoked or varied.

maximum period, in relation to a State or Territory, means 500 hours or such lesser period as is prescribed in relation to the State or Territory.

participating State means a State in relation to which an agreement under section 70NFI is in force.

participating Territory means a Territory in relation to which an agreement under section 70NFI is in force.

[1] The applicable section 70NFG(3) of the Family Law Act 1975 ('the Act') provides:

(3) If a court sentences a person to imprisonment under paragraph 70NFB(2)(e), the court must:

(a) state the reasons why it is satisfied as mentioned in subsection (2); and

(b) cause those reasons to be entered in the records of the court.

[2] The older child was born overseas and arrived in Australia when a baby.

[3] As it was prior to 6 May 2024 as provided in Act No 46 of 2006, Sch 2, Pt 1[6], see paragraphs [10]-[17] of my reasons in Bellanger & Wemble (No 3) [2024] FedCFamC2F 1139.

[5] This provision is set out at appendix one to these reasons. It is unclear whether this Court is empowered to make such an order given the apparent absence of any agreement between the Governor of Victoria and the Governor-General pursuant to section 112AN of the Act. I note the decision of Gill J in Kalant & Jordain (No. 5) [2020] FamCA 812 at [125], as well as the recent repeal of sections 70NFB(2)(a), 70NFC, 70NFD and 70NFF, removing community service orders as an available sanction from Division 13A of the Act given that they were "rarely used as a sanction and their removal aids the simplification of the Division"; Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth) [107]. Assuming this sanction is available, I am satisfied as provided in section 70NFG(2) that a sanction of a Community Service Order, in all the circumstances, would not be appropriate as a penalty to deal with this contravention.

[6] That observation was recited, with apparent approval, in a Division 13A contravention case, by another Full Court in Dobbs & Brayson (2007) FLC 93-346; [2007] FamCA 1261 ('Dobbs') at [84].

[9] See the evidence of the single expert report of Dr DD.

[11] The mother had been indirectly informed of the children's sickness by her relatives but the evidence from the WhatsApp messages (Exhibit 'MSP3 - 9 July 2025') between the Grandmother's daughter Ms P Wemble, and the Father included: "He is not yet recovering. I'm still in the hospital with him. Am thinking of taking him to City N on Saturday. He doesn't recall people including me. Temp still at 39.3 degree Celsius."

[14] I refer to and repeat the observations of the Father recited at [93] - [94] above.

[15] See Crimes Act 1914 (Cth) section 4AA.

[16] See section 70NAA of the Act, recited earlier.

[17] See Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84.

[18] See paragraph [33] of these reasons.