Midal & Duncan (No 2) [2025] FedCFamC2F 1577 (1 December 2025)

1. Pursuant to s 70NEB(1)(a) of the Family Law Act 1975 (Cth) (as it stood prior to 6 May 2024) the respondent shall forthwith commence and complete a post separation parenting course being "Parenting Orders Program" with O Services at a place and time suitable to the respondent.
2. Pursuant to s 70NEB(1)(f) of the Family Law Act 1975 (Cth) (as it stood prior to 6 May 2024) the respondent shall, within 12 months, pay the applicant's costs assessed in the amount of $11,525.
3. The respondent enter into a bond, pursuant to s 70NEC of the Family Law Act 1975 (Cth) (as it stood prior to 6 May 2024) for a period of 12 months, upon the following conditions:

(a) To be of good behaviour; and

(b) To comply with all parenting orders made under the Family Law Act 1975 (Cth).

1. The respondent enter into a bond pursuant to s 70NCA of the Family Law Act 1975 (Cth) for a period of 12 months and concurrent with the bond in Order 3 above, upon the following conditions:

(a) To be of good behaviour; and

(b) To comply with all parenting orders made under the Family Law Act 1975 (Cth).

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. The respondent, Ms Duncan, contravened final parenting orders made by this Court on 7 October 2021 on 11 occasions.
2. On 10 March 2025 the Court delivered its reasons for judgment in Midal & Duncan [2025] FedCFamC2F 302. That judgment is to be read and considered together with these reasons.
3. In the contravention judgment, the Court declared that the respondent contravened the final orders in that:

(a) The respondent refused to inform the applicant about the decision to unenroll the child from B Daycare and to enrol the child at C Daycare on 23 January 2024 in contravention of Order 3.1 of the Orders made on 7 October 2021.

(b) The respondent refused to consult with the applicant regarding the decision to unenroll the child from B Daycare and to enrol the child at C Daycare on 23 January 2024 in contravention of Order 3.2 of the Orders made on 7 October 2021.

(c) The respondent refused to make a genuine effort to come to a joint decision to unenroll the child from B Daycare and to enrol the child at C Daycare on 23 January 2024 in contravention of Order 3.3 of the Orders made on 7 October 2021.

(d) The respondent enrolled the child at D School on 4 July 2024 in contravention of Order 2.1 of the Orders made on 7 October 2021.

(e) The respondent refused to inform the applicant about the decision to be made regarding the child's enrolment at D School on 4 July 2024 in contravention of Order 3.1 of the Orders made on 7 October 2021.

(f) The respondent refused to consult with the applicant regarding the child's enrolment at D School on 4 July 2024 in contravention of Order 3.2 of the Orders made on 7 October 2021.

(g) The respondent refused to make a genuine effort to come to a joint decision regarding the child's enrolment at D School on 4 July 2024 in contravention of Order 3.3 of the Orders made on 7 October 2021.

(h) The respondent baptised the child at E Church in Suburb F in late 2022 in contravention of Order 2.2 of the Orders made on 7 October 2021.

(i) The respondent refused to inform the applicant about the decision to be made regarding the child's baptism at E Church in Suburb F in late 2022 in contravention of Order 3.1 of the Orders made on 7 October 2021.

(j) The respondent refused to consult with the applicant regarding the child's baptism at E Church in Suburb F in late 2022 in contravention of Order 3.2 of the Orders made on 7 October 2021.

(k) The respondent refused to make a genuine effort to come to a joint decision regarding the child's baptism at E Church in Suburb F in late 2022 in contravention of Order 3.3 of the Orders made on 7 October 2021.

1. As noted in the orders of 10 March 2025, it was the parties' joint application that the determination of penalty be dealt with on the papers. Following the making of a timetable for the filing of submissions, the parties then sought further time in which to make their submissions to the Court.
2. What followed was a consent position between the parties, and proposed consent orders, which the Court declined to make without hearing from the parties, as the determination of penalty is quintessentially an exercise in judicial power.[1] Neither of the parties had at that point, provided to the Court any submission in respect of penalty.
3. Following further order, on 16 June 2025 and 30 June 2025, the applicant and respondent respectively filed their written submissions. There was no longer a consent position among them in relation to appropriate penalty. The reasons for this were not explained in either party's written submissions.
4. Only the respondent sought to rely on further evidence, namely her affidavit filed 15 November 2024.[2] Each of the parties relied on a number of annexures to the submissions.

1. The contraventions dealing with the daycare changes (declarations (h)-(k)) and the contraventions dealing with the baptism (declarations (a)-(c)) all pre-date the commencement of the Family Law Amendment Act 2023 (Cth) ("Pre-Amendment Contraventions"). As such, it is the provisions of Pt VII, Div 13A as operable at the relevant time, which apply to such contraventions.
2. The contraventions dealing with the primary school enrolment (declarations (d)-(g)) post-date the commencement of the Family Law Amendment Act 2023 (Cth) ("Post-Amendment Contraventions"). Therefore, it is the provisions of Div 13A that apply to such contraventions.
3. The salient principles in relation to contraventions and the imposition of a penalty in respect of the law as it applied at the time of the Pre-Amendment Contraventions, may be summarised as follows:[3]
   • The focus of a court in dealing with a contravention application under Div 13A of Pt VII is in making orders which will enforce future compliance with its orders.
   • The court's focus is on the individual party.
   • A penalty imposed to deter other likeminded persons would constitute an error of law.
   • The court can have regard to criminal sentencing principles.
   • If there are multiple contraventions in relation to which the court determines to impose a "global" sanction, particular care is required to ensure the total sanction is not manifestly excessive.
   • Reasons must be provided for the imposition of a particular sanction.
4. The amendments to Div 13A were introduced to make the consequences of non-compliance with parenting orders clearer and more straightforward.[4]
5. The principal objects of the new Div 13A are to meet the best interests of children to whom child‑related orders relate by:[5]

(a) supporting compliance with child‑related orders; and

(b) resolving difficulties associated with child‑related orders that are parenting orders which have contributed to non‑compliance with such orders (including by varying or making further orders); and

(c) deterring non‑compliance with child‑related orders; and

(d) upholding the authority of the court by enforcing compliance with child‑related orders where the court considers this necessary and appropriate; and

(e) providing for sanctions for a person who contravenes a child‑related order without reasonable excuse.

1. It therefore likely remains that the legislative intention of Div 13A is directed to enforcing compliance with operative parenting orders, rather than punishment of the individual or deterrence (either specific to the individual or the general deterrence).[6]
2. However, as recently noted by Austin J sitting as the Full Court:[7]

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. It is with all those principles in mind, that the Court is now embarking upon its explanation as to why it is making the orders as set out at the forefront of these reasons.

1. As noted earlier, the Pre-Amendment Contraventions are to be dealt with under the legislative provisions prior to the amendments which came into force on 6 May 2024.
2. Subdivision E deals with "less serious contraventions", that is those where a contravention has been established with no reasonable excuse, and where relevantly no court has previously made an order imposing a sanction or taking action in respect of a contravention.[8] However, if the Court is satisfied that the person who contravened the primary order has behaved in a way that showed a serious disregard for her obligations under the primary order,[9] then Subdivision E does not apply, and the Court is to deal with the contravention as a "more serious contravention" under Subdivision F.
3. "Serious disregard" is not defined in the Act.
4. It has however been held that "the more serious sanctions should only be invoked if there is a persistent disregard of an obligation or a clearly wilful and deliberate attempt to resist carrying out an order. Mere passivity on a first breach does not appear to be sufficient to attract the more stringent sanctions set out under subdivision F."[10]

[96] The fact that the respondent took the view that the applicant was unhappy with [B] Daycare may have been open to her, but it did not leave open to her to make a unilateral decision to change [X]'s daycare from [B] Daycare to [C Daycare].

[97] The respondent did not inform the applicant about the decision to change [X]'s daycare, which necessarily involved a withdraw from [B] Daycare (or 'unenrolment' as the applicant pleads) and an enrolment into [C Daycare], either prior to or after she had made that decision (or those decisions). She did not consult with him at all and there was no agreement, and there was no genuine effort, indeed even an attempt, to come to a joint decision about changes to [X]'s daycare...

[98] The respondent deliberately engaged in such conduct. The decision by the respondent was unilateral. This was conduct in contravention of the Final Orders.

1. While the decision to change X's daycare was done with the child's best interests at heart, and while the decision was such that it was to the child's benefit, all being mitigating factors, the fact that the change was made without recourse to the applicant, in the knowledge that same was required, speaks to a disregard for Court orders. It was more than mere passivity.
2. This was an important decision for the parents to make in the exercise of equal shared parental responsibility.
3. The respondent's actions in refusing:

(1) to inform the applicant about her decision to take the child out of one daycare and enrol her in another,

(2) to consult with the applicant about such decision, and

(3) to make a genuine effort, or indeed any effort, to come to a joint decision about these matters,

all speak to an intentional breach of Court orders and conduct which demonstrates a poor attitude towards the applicant's role as a parent. Such actions also speak poorly of the respondent's attitude towards the Court's authority.

1. The respondent's actions by themselves do not, however, demonstrate a serious disregard for Court orders. The contraventions are to be dealt with as a less serious contravention, pursuant to Subdivision E.

1. X's baptism occurred in late 2022.
2. The applicant did not find out about it until September 2024, and then only by chance.
3. X's baptism is the subject of 3 separate contraventions, each one proven on the balance of probabilities, and in respect of each one the respondent failed to establish a reasonable excuse.
4. As held in the contravention judgment:

[32] ... the respondent in carefully considering the proposed Final Orders before they were made, came to the understanding that whether or not a child is baptised is considered to be a part of a child's religion. She thought it was a religious milestone. She understood that this was an exercise in parental responsibility.

[33] Notwithstanding such understanding, namely that in having [X] baptised, the respondent was exercising parental responsibility, she made the intentional decision not to consult with the applicant, not to inform him of the baptism, and she made the decision, to have [X] baptised, unilaterally, rather than jointly with the applicant.

...

[88] The respondent deliberately engaged in the conduct of having [X] baptised.

1. These are all aggravating factors.
2. While noting that both parents are Christian, the applicant is Orthodox and the respondent is Roman-Catholic. The child was baptised in the Roman-Catholic religion.
3. There is no evidence, however, to suggest that having now been baptised in the Roman-Catholic religion, X is, or will be, prevented from practicing and/or observing the Orthodox religion, or from partaking in the rites of that religion. There is no evidence that X has in any way been negatively impacted by the respondent's decision in so far as the child's capacity to observe or partake in any cultural activities, including as part of the Country J community, which is the applicant's background.
4. These may be considered as mitigating factors.
5. However, the evidence is that the respondent kept the baptism a secret, both at the time that she made the decision to go through with it and afterwards. The respondent had X baptised with the purpose of ensuring that the respondent's associated unilateral decision about enrolling the child in a particular school, the subject of further contraventions, could be carried out.
6. While such actions also speak poorly of the respondent's attitude towards the Court's authority, the Court is not satisfied that they speak to a serious disregard for Court orders.

1. The 8 contraventions which are the subject of the discussions above, relate to 2 separate circumstances, one being the changes to the child's preschool and the second being the child's baptism.
2. However, the actions which led to each of the 8 contraventions cannot properly be said to be limited to only 2 actions, but rather a series of actions leading to the respondent making the changes to the child-care, and a series of actions leading to the respondent having X baptised, as referred to in the contravention judgment.

1. The contraventions relating to the daycare changes are contraventions of Orders 3.1, 3.2, and 3.3 made on 7 October 2021. These are the parties' obligations as to how they are to consult with each other about the decisions to be made in the exercise of their equal shared parental responsibility. They provide a mechanism to inform each other, consult with each other, and then make a genuine effort to come to a joint decision. If anything, the mechanism is there to assist the parties in carrying out their obligations pursuant to Order 2; the order for equal shared parental responsibility.
2. While the Court accepts that none of these contraventions have involved X not spending time with the applicant pursuant to the orders, they were done with the intention of excluding the applicant from making those important decisions. It was, in the Court's view, a thumbing of the nose at the applicant's parental role, but as explained earlier, not serious enough to be dealt with under Subdivision F.

1. The contraventions relating to the baptism of the child are contraventions of Orders 2.2, 3.1, 3.2, and 3.3.
2. The Court notes the matters at [37]-[38] above and adopts the same view in respect of these contraventions.

1. In the circumstances, the Court has the power to vary the primary order under Subdivision B.
2. The Court may also do any or all of the following:[11]

(a) Make an order that the respondent attend a post-separation parenting program;

(b) Adjourn the proceedings to deal with the application already made to vary the Final Orders;

(c) Require the respondent to enter into a bond in accordance with s 70NEC;

(d) Impose a fine if a party fails to enter into a bond; and

(e) Make costs orders.

1. The applicant submits that the Court ought to make an order requiring the respondent to attend a post-separation parenting program, and puts forward one such program. The respondent says in answer to this that she should have the flexibility to arrange such course around her parenting commitments, and provides general information about the Parenting Orders Program as nominated by the applicant.
2. The applicant submits that the Court ought to make an order requiring the respondent to enter into a bond of 2 years' duration in respect of each single contravention to be served concurrently. The respondent submits that the Court would consider a maximum of 3 bonds (for the 3 separate events leading to 11 contraventions) for a duration not exceeding 6 months. This is understood as a submission that the Court ought not impose any more than two separate bonds not exceeding 6 months, concurrently, in respect of the contraventions concerning the changes to daycare and the baptism.
3. In the circumstances, the Court finds that it is appropriate for the respondent to attend and complete a post-separation parenting program, as nominated by the applicant.
4. The Court further finds that the respondent should enter into a bond as a consequence of her contravention of Order 2.2 of the Final Orders, and that such bond be for a period of 12 months from the time it is entered, without surety. The other contraventions do not warrant the respondent being required to enter into a bond.
5. Before the respondent enters into the bond, she is entitled to receive an explanation from the Court as to the purpose and effect of the proposed bond, and the consequences which follow if she fails to enter into a bond or if she fails to comply with the bond. This will be done by the Court at an appropriate time.
6. Lastly, the Court finds that a costs order against the respondent is also appropriate. Such costs are assessed in accordance with the scale, assessed as follows:

Item 1: Initiating an application up the completion of the first court date: $2,730.66

Item 13: Daily hearing fee (2 days): $5,461.32

Item 14: Advocacy Loading (2 days): $2,730.66

Item 15: Drafting submissions (say 2 hours): $602.44

Total: $11,525.

1. Noting the respondent's financial and personal circumstances, such costs are to be paid within 12 months.

1. The contraventions relating to the primary school enrolment are contraventions of Orders 2.1, 31, 3.2, and 3.3 made on 7 October 2021.
2. The respondent's actions in enrolling X into a primary school of her choice, after taking the step to have the child baptised in a religion which was different to the applicant's, and without any recourse to him in the making of that decision, was done intentionally and surreptitiously.
3. To the respondent's credit though, she has said that:

(a) She is agreeable to X being excluded from all religious sacraments at her proposed school;

(b) She supports X's involvement in both religions and being able to make a choice about which religion she prefers when she is older;

(c) X speaks Country J language with the applicant and his family. X has informed the respondent that she attends Country J school or scripture classes, and has a workbook to complete in Country J language; and

(d) She supports X speaking Country J language while she is in the applicant's care.

1. The respondent further explains, and the Court accepts, that she took the steps to have X enrolled into a particular school as she wanted to ensure the best possible educational outcomes for the child. This was her subjective intention.
2. While the respondent's subjective intention may be considered as a positive aspect of her parenting, her actions in making the unilateral decision had the effect of sidelining the applicant and diminishing his role as a parent.
3. As with the respondent's unilateral decision to have the child baptised, the respondent's unilateral actions in enrolling the child into a primary school, in the face of orders requiring such decisions to be made by both parents, speaks poorly of her attitude towards the Court's authority.

1. The Court's powers under the new Div 13A do not provide for a demarcation between "less serious" and "more serious" contraventions, but the seriousness of the contraventions remains a relevant factor to be considered.[12]
2. In the circumstances, the respondent should enter into a bond, without surety, for a period of 12 months in respect of the contravention of Order 2.1 of the Final Orders.
3. Noting that the Court has already determined that the respondent should attend a post-separation parenting program, that she should enter into a 12-month good behaviour bond and that she should pay costs assessed in the amount of $11,525, all in respect of the Pre-Amendment Contraventions, no further sanctions are warranted in respect of the contraventions relating to the primary school enrolment.
4. Following the appropriate explanation, and the respondent entering into the bond, the bonds are to be concurrent.

1. The Court is mindful that any determination of the question of whether orders should be varied, in the manner suggested by the applicant, is a determination subject to the threshold issue in Rice & Asplund, now codified in s 65DAAA of the Act.
2. The variations sought by the applicant go beyond the small measure that might be appropriate to ensure that there was no confusion as to what compliance with orders required (not that this is something which occurred here), or to ensure that the orders were more easily complied with.
3. While the Court has the power pursuant to both the pre and post 2023 amendments to vary the final orders in contravention proceedings, the Court is not persuaded that it is appropriate to do so in these circumstances, notwithstanding the applicant's application.
4. In any event, there is presently before the Court an application by the respondent to vary those final orders, and it would be inappropriate for the Court to vary any final order without determining those applications first.
5. The Court so orders.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

[1]Winch & Jackson [2015] FamCAFC 75 at [26] ("Winch & Jackson").

[2] The Court has before it the parties' evidence as referred to in the contravention judgment.

[4] Explanatory Memorandum to the Family Law Amendment Act 2023 at [10].

[5] Family Law Act 1975 (Cth) s 70NAB ("Act").

[6] Keehan & Keehan [2019] FamCAFC 250 at [31].

[7] Galvis & Galvis [2024] FedCFamC1A 123 at [46].

[8] Act s 70NEA(1), (2), as at 5 May 2024.

[10] Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655 at [66].

[12] See eg. Siskas & Diaz (No 2) [2025] FedCFamC2F 292 at [89].