Papworth & Cobb (No 2) [2025] FedCFamC2F 1743 (10 December 2025)

1. The respondent, with reasonable excuse, contravened order 10(a) of the Federal Circuit and Family Court of Australia (Division 2) made on 16 June 2023 in that:

(a) On 1 September 2024 at 10am at Town J, the respondent, refused to allow the child to spend time with the father on Father's Day 2024.

1. The proceedings are listed for hearing in respect of penalty at 2:15pm on

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 for Judgment in respect of the Application - Contravention filed on 7 March 2025. The applicant father, Mr Papworth, alleged that the respondent mother, Ms Cobb, contravened the final orders dated 16 June 2023 in respect of the child, X, born in 2019, who is 6 years old.
2. The Application - Contravention contains 9 counts.
3. Counts 1 to 8 allege a contravention of order 8(b)(i) of the orders dated 16 June 2023, each on separate occasions. Counts 1 to 8 allege that the mother contravened orders for X to spend time with the father by failing to make X available at the designated date and time.
4. Count 9 alleges a contravention of order 10(a) of the orders dated 16 June 2023, alleged to have taken place on 1 September 2024. Count 9 alleges that the mother contravened orders for X to spend time with the father on Father's Day in 2024.
5. The mother has entered a plea of guilty with reasonable excuse in respect of each of the alleged contraventions.
6. The Family Law Amendment Act 2023 (Cth) commenced 6 May 2024. The amending act included amendments to Div 13A of Part VII which governs proceedings relating to contraventions of child-related matters.
7. Absent express legislative intention for the new provisions of Pt VII, Div 13A of the Family Law Act 1975 (Cth) to apply to contraventions alleged to have occurred whilst the old Pt VII, Div 13A was operable, the old provisions must still apply to such historic contraventions.[1]
8. Counts 1 to 8 are alleged to have occurred prior to the commencement of the new provisions and Count 9 is alleged to have occurred after the commencement of the new provisions. Accordingly, the old provisions will be applied to Counts 1 to 8 in these reasons, and the new provisions will be applied to Count 9.
9. The Court is presently only dealing with the issue of liability.

1. The relevant legislative provisions dealing with contraventions of parenting orders are found in Part VII Division 13A Family Law Act 1975 (Cth) as it stood at the relevant time.
2. Division 13A is organised in a progression from lesser to greater seriousness, as explained in s 70NAA. In summary it deals in turn with:

(a) Preliminary matters, including definitions and a provision relating to the standard of proof (s 70NAF): subdivision A;

(b) Varying parenting orders, which can be regarded as the least punitive response to the problem: subdivision B;

(c) Contravention alleged but not established - provision for costs orders against the person bringing the proceedings: subdivision C;

(d) Contravention established, but a reasonable excuse - the court can make orders for compensation for time lost, and costs orders: subdivision D;

(e) Less serious contraventions, and no reasonable excuse - the court has various powers, for example orders for compensation for time lost, orders for post-separation parenting programs, bonds, and costs: subdivision E; and

(f) More serious contraventions, and no reasonable excuse - the court has more punitive powers, including fines and imprisonment: subdivision F.

1. The meaning of "contravened an order" is set out in s 70NAC of the Family Law Act 1975 (Cth):

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;

...

(emphasis in original)

1. The mother admitted the contraventions. The mother's argument was that she had a reasonable excuse, presumably within the meaning of s70NAE(5). This was not made clear during submissions. The onus of proof is on the mother to establish that she had a reasonable excuse for the contraventions.[2]
2. The meaning of "reasonable excuse" is, relevantly, found in s 70NAE of the Act, which reads:

(1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).

...

(5) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

...

1. A reasonable excuse in respect of a concern as to the welfare of the child, is limited to a belief, on reasonable grounds, that depriving a person of time with a child pursuant to an order was necessary to protect the health and safety of a person. It is not a question as to whether in the view of the parent with whom a child lives, or in the view of that parent on reasonable grounds, that the carrying out of the order might not be in the best interests of the child. The question is whether it is necessary to protect the health or safety of a person including the child.[3]
2. The list of potential reasonable excuses for contravention at section 70NAE is of course not exhaustive, and subsection (5) ought to be applied whenever it can "fit" the circumstances.[4]
3. Section 70NAE(5) was considered by Dawe J in Vaughton & Randle (No.2)[5] where it was held that:

There are multiple considerations, both subjective and objective, involved in applying subsection 70NAE(5) to the facts...

First, there is the issue of whether the respondent believed on reasonable grounds that not allowing the child and the applicant to spend time together was necessary to protect the health and safety of the child. This issue has a subjective element (consideration of whether the respondent actually believed that not allowing the child and the applicant to spend time together was necessary to protect the health and safety of the child) and an objective element (consideration of whether this belief of the respondent was reasonable).

Second, there is the consideration of whether the period during which the child and the person did not spend time together was "longer than was necessary to protect the health or safety" of the child pursuant to s 70NAE(5)(b). (original emphasis)

1. With these remarks, the Court respectfully agrees. They are a statement of the law which applies to this case.

1. From 6 May 2024, the 2023 amendments came into effect and simplified the pathway for contraventions. The law dealing with what a contravention is and how it is proven, while undergoing some structural changes, has remained consistent. A simplified outline is found in s 70NAA of the Act which sets out the orders the Court may make depending on whether a contravention is found, and the seriousness of the contravention.
2. The meaning of "contravene a child-related order" is set out at s 70NAC of the Act, relevantly:

(1) A person contravenes a child‑related order only if:

(a) the person is a person (other than a child) to whom the order applies and:

(i) the person intentionally fails to comply with the order; or

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

1. The meaning of "reasonable excuse for contravening a child-related order" is in s 70NAD of the Act and, without limiting the circumstances for reasonable excuse, relevantly provides:

Where person did not understand obligations

(1) A person has a reasonable excuse for contravening a child‑related order if:

(a) the person contravened the order because at the time of the contravention the person did not understand the obligations imposed by the order; and

(b) the court considers that the person ought to be excused in respect of the contravention.

...

Protection of health or safety of a person

(3) A person has a reasonable excuse for contravening a child‑related order if:

(a) the person contravened the order because the person reasonably believed that the person's actions constituting the contravention were necessary to protect the health or safety of the person, a child or any other person; and

(b) the period of the contravention was not longer than necessary to protect the health or safety of the person, child or other person.

(4) This section does not limit the circumstances in which a person may have a reasonable excuse for contravening a child - related order.

1. The burden is on the father to prove the contravention and on the mother to prove the excuse,[6] with the standard being on the balance of probabilities.[7] The contravention must still be shown to be intentional.

1. The father relied on the following documents in support of his application:

(g) Application - Contravention filed 7 March 2025; and

(h) Affidavit of Mr Papworth filed 7 March 2025 (including the annexures).

1. The mother relied on the Affidavit of Ms Cobb filed 23 October 2025, including the annexures to that affidavit.

1. Parenting proceedings were originally commenced by the mother in June 2020, when X was about 18 months old.
2. After much case management by different judges, and the preparation of a Family Report, the parenting applications were heard by Judge Carty in Newcastle in November 2022.
3. Final orders were made on 16 June 2023.
4. The reasons for judgment are part of the Court file, albeit they were not tendered in the contravention proceedings. The Court has not had regard to any factual findings previously made.
5. Relevantly the final orders provide as follows:

8. The child spend time with the father during 2023 and 2024, unless otherwise agreed as follows:

(a) Until such time as the father provides to the mother's solicitor a certified copy of the certificate demonstrating that he has completed twenty sessions of the men's behaviour change program with [Town C, E Counsellors], or an equivalent program:

(i) For or up to two (2) hours each fortnight supervised by [City F] Family Support Services, or such other supervision service that the parents agree upon;

(ii) The father is solely responsible for the costs associated with the supervised time;

(iii) Both parents will comply with the rules and reasonable directions of the supervision service;

(iv) If the mother cancels a scheduled visit for the child with the father then the child will have a make-up visit within the next week if possible, or as otherwise agreed.

(b) Upon the father providing to the mother's solicitor a certified copy of the certificate which demonstrates that he has completed the men's behaviour change program ("the certificate"):

(i) Commencing on the weekend following provision of the certificate, and for three calendar months thereafter, each alternate Saturday from 10.00am until 4.00pm, with the first three occasions of time to be spent in the presence of the paternal grandmother;

(ii) Following the expiration of three calendar months, and until the commencement of New South Wales Public School Term 1 in 2024, each alternate weekend from 10.00am Saturday until 4.00pm Sunday, with the first three occasions of overnight time to be spent in the presence of the paternal grandmother;

(iii) Commencing on the first weekend of New South Wales Public School Term 1 in 2024, and continuing throughout the school Terms in 2024, each alternate weekend from after school or 3.00pm on Friday until 4.00pm on Sunday;

...

10. From the start of 2024, in addition to the spend time with arrangements which are set out in these orders, the child will spend time with the father:

(a) On Father's Day each year, and if on a weekend when the child is not already spending time with him, then from 10.00am until commencement of school or 9.00am the following Monday;

...

1. The mother makes frank admission that she has contravened orders 8(b)(i) and 10(a) of the final orders.
2. The mother says that she has refused to allow X to spend time with the father in the presence of the grandmother, despite receiving the certificate from the father that he completed the Men's Behaviour Change program.
3. The mother also says that she refused to allow X to spend time with the father on Father's Day.

1. At the time of the final hearing, and for 4 years prior, X had been spending time with the father at the City F Family Support Services contact centre.
2. The mother explains that on 5 May 2023, while Her Honour's decision was reserved following the final hearing, an incident occurred at the City F contact centre after which the contact centre made the decision to stop supervising time between the child and the father.
3. The mother says that X was distressed and crying on the day of the incident.
4. The father explains that on this occasion, he noticed some marks on X's back which concerned him, and he asked the centre staff to take photographs. The staff refused, and the father "got angry and upset", after which the centre stopped the visits, in the father's words "due to my behaviour allegedly being against their policies".
5. According to the mother, X has remained consistent in not wanting to see her father, expressing her fear of him to the mother.
6. X has not spent any time with the father since 5 May 2023.
7. There is no evidence that either party sought to re-open the final hearing so that these important matters could be brought to the Court's attention.
8. After time between the father and the child at the City F contact centre stopped, the father made some attempts to find a different supervision service, however the evidence is not clear as to whether there was any approach by the father to the mother to agree to a different supervision service such that time could proceed in accordance with order 8(a) of the final orders.
9. In any event, time did not occur in accordance with order 8(a).
10. Noting the matters referred to at [34] and [36] above, it appears that the father had failed to comply with order 8(1)(a)(iii) of the final orders, requiring both parents to comply with the rules and reasonable directions of the supervision service.
11. The father completed the Disrupting Family Violence Men's Behaviour Change program offered through E Counsellors on 15 December 2023. The mother's solicitor was provided with a copy of the certificate on or about 17 January 2024. As such, the condition precedent for time in accordance with order 8(b) to commence was prima facie met. However, no such time ever occurred.
12. Order 8(b)(i) provided that time was to commence on the weekend following the provision of the certificate. On the facts, this would have meant 20 January 2024, noting that 17 January 2024 was a Friday.
13. Such time was contemplated in circumstances where time had continued to occur in accordance with order 8(a), which it had not.
14. Even if time had commenced on the weekend following the provision of the certificate, the way the orders were drafted, the orders contemplated for that time to occur in a particular manner until the commencement of term 1 in 2024 (as is clear from order 8(b) when the final orders are read as a whole). This was only about two weeks after the father provided the certificate to the mother.
15. Next, time in accordance with final orders was to occur for a period of three calendar months each alternate Saturday. This would have taken the alternate Saturdays to late April 2024, which was about the second school term in 2024.
16. This in itself caused difficulties with the orders as a whole being enforced, noting that time in accordance with order 8(b)(ii) was due to commence at the conclusion of the three months of alternate Saturdays and until the commencement of term 1 in 2024. Time was then to progress as alternate weekends, commencing the first weekend of term 1 in 2024 and to continue throughout the school terms in 2024.
17. The paternal grandmother passed away in 2024.
18. Compliance with the final orders was therefore frustrated by a number of matters.
19. The mother does not raise the apparent difficulty with complying with Court orders as noted at [33] to [49] above. Instead, she says that she had a reasonable excuse for contravening the orders because of her safety concerns for the child, particularly noting the father's behaviour on 5 May 2023, the suspension of supervision services by the centre and the child's reluctance to spend time with the father.
20. The mother further frankly concedes that she was not happy with the final orders, and that she thought the Court had got it wrong. The mother says that she sought advice and tried to get representation in order to appeal the final orders. She also says that she had no intention of complying with the final orders given what had occurred in May 2023, before the final orders were made and while the Court's decision was reserved.
21. Apart from providing the mother with the certificate, the father did not do anything else to allay reasonable concerns arising from his behaviour and the suspension of supervision services by the centre.
22. Taking into consideration all of the evidence before it, the Court finds that the mother has established, on the balance of probabilities, a reasonable excuse for the contraventions.
23. Even if compliance with orders had not been frustrated by superseding events, the Court is satisfied that the mother believed on reasonable grounds that the actions she took were necessary to protect the health and safety of X, and that the time during which the child did not spend with the father was no longer than necessary to protect the health and safety of X.

1. Time on Father's Day in accordance with order 10, was to be in addition to the time in accordance with other orders.
2. Again, the Court notes that time stopped on 5 May 2023, before the final orders were made. The Court has already explained the difficulties which then faced the parties in terms of compliance with orders.
3. For similar reasons as explained above, the Court finds that the mother had a reasonable excuse for contravening order 10.

1. The Court finds that the mother had reasonable excuse for contravening order 8(b)(i) and order 10(a) of the final orders.
2. The next step is to determine, what orders if any, are to be made as a consequence of the Court's findings.
3. The Court so orders.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

[1] Hatfield & Rivas [2024] FedCFamC1A 202 at [72].

[2] Family Law Act 1975 (Cth) ss 70NDA(c); 70NEA(1)(c); 70NFA(1)(c).

[3] In the Marriage of O'Brien [1992] FamCA 52; (1993) FLC 92-396.

[4] Childers & Leslie (2008) FamCAFC 5.

[5] [2013] FamCA 286 at [82].

[6] Act s 70NADA.

[7] Act s 70NAE, noting the exception to this being in respect of orders made under s70NBF(1)(d) where the burden is beyond reasonable doubt.