Rosetta & Corbo (No 2) [2025] FedCFamC2F 359 (25 March 2025)

(a) On 8 June 2024 the Respondent Mother failed to make the child available to spend time with the Applicant Father in accordance with Order 2(c) (Count 1);

(b) The Respondent Mother failed to make the child available for make-up time with the Applicant Father in accordance with Order 6 (Count 2);

(c) On 22 June 2024 the Respondent Mother failed to make the child available to spend time with the Applicant Father in accordance with Order 2(c) (Count 3);

(d) The Respondent Mother failed to make the child available for make-up time with the Applicant Father in accordance with Order 6 (Count 4);

(e) On 6 July 2024 the Respondent Mother failed to make the child available to spend time with the Applicant Father in accordance with Order 2(c) (Count 5);

(f) On 20 July 2024 the Respondent Mother failed to make the child available to spend time with the Applicant Father in accordance with Order 2(c) (Count 7);

(g) On 17 August 2024 the Respondent Mother failed to make the child available to spend time with the Applicant Father in accordance with Order 2(d) (Count 13);

(h) On 18 August 2024 the Respondent Mother failed to make the child available to spend time with the Applicant Father in accordance with Order 2(d) (Count 14);

(i) On 14 September 2024 the Respondent Mother failed to make the child available to spend time with the Applicant Father in accordance with Order 2(d) (Count 17);

(j) On 15 September 2024 the Respondent Mother failed to make the child available to spend time with the Applicant Father in accordance with Order 2(d) (Count 18);

(k) On 28 September 2024 the Respondent Mother failed to make the child available to spend time with the Applicant Father in accordance with Order 2(d) (Count 19);

(l) On 29 September 2024 the Respondent Mother failed to make the child available to spend time with the Applicant Father in accordance with Order 2(d) (Count 20).

1. The Respondent Mother, without reasonable excuse, failed to comply with the bond entered into in accordance with the Orders of Judge Myers of 10 April 2024 in that:

(a) On 8 June 2024 the Respondent Mother contravened Order 2(c) of the Orders of 8 February 2023 as varied on 19 October 2023 and 10 April 2024 (Count 9);

(b) On 22 June 2024 the Respondent Mother contravened Order 2(c) of the Orders of 8 February 2023 as varied on 19 October 2023 and 10 April 2024 (Count 10);

(c) On 6 July 2024 the Respondent Mother contravened Order 2(c) of the Orders of 8 February 2023 as varied on 19 October 2023 and 10 April 2024 (Count 11);

(d) On 20 July 2024 the Respondent Mother contravened Order 2(c) of the Orders of 8 February 2023 as varied on 19 October 2023 and 10 April 2024 (Count 12).

1. Counts 6, 8, 15, and 16 of the Application - Contravention filed 8 January 2025 are dismissed.
2. The proceedings are listed at 10.00 am on 23 May 2025 for submissions on penalty.

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 Reasons relate an Application - Contravention filed by the father on 8 January 2025.
2. The parties have one child, X, born in 2020, currently aged 4 years ("the child").
3. Final orders were made on 8 February 2023 resolving issues between the parties arising from previous parenting proceedings.
4. On 19 October 2023, the final orders were varied by consent including, inter alia, for the child to spend makeup time with the father on three occasions.
5. On 10 April 2024, further orders were made in relation to 11 counts of contravention by the mother of the final parenting orders (as amended on 19 October 2023). The mother was sentenced to enter into a bond for a period of 12 months without surety and with the condition of good behaviour.
6. The father pressed all 20 counts contained in his above Application - Contravention. The mother pleaded guilty to Counts 5, 11, 13, and 14 and not guilty to the remainder.
7. Both parties were ably represented by their respective counsel.

(a) Application - Contravention filed 8 January 2025;

(b) His affidavit filed 8 January 2025.

1. The father and mother each gave oral evidence.
2. The Court does not propose to set out the entirety of the affidavit or oral evidence.

1. Division 12A of the Family Law Act 1975 (Cth) ("the Act") sets out the court's powers in relation to contravention of child related orders.
2. Section 70NAC(1) of the Act provides, inter alia:

(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

(b) the person is not a person to whom the order applies, and the person is not a child, but:

(i) the person intentionally prevents compliance with the order by a person to whom the order applies; or

(ii) the person aids or abets a contravention of the order by a person to whom the order applies.

1. The father, as the applicant, bears the onus of proof in relation to proof of the contravention. Unless orders are made under s 70NBF(1)(d), the applicable standard is the civil standard, being on the balance of probabilities: s 70NAE.
2. The father seeks the imposition of a fine under s 70NBF(1)(d) and a further fine under s 70NCB(2)(a) for failure to comply with the bond. Without having determined these proposed fines, where the evidence enables the Court to make a finding on the criminal standard, the Court has done so.
3. Section 70NAD of the Act 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.

(2) If the court decides that a person has a reasonable excuse under subsection (1) for contravening a child - related order, the court must explain to the person, in language likely to be readily understood by the person:

(a) the obligations imposed on the person by the order; and

(b) the consequences that may follow if the person contravenes the order again.

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.

Section does not limit circumstances of a reasonable excuse

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

1. Section 70NADA of the Act provides:

A person who claims to have a reasonable excuse for contravening a child-related order has the legal burden of proving the excuse.

1. Section 70NAE of the Act provides:

The standard of proof to be applied in determining matters in proceedings under this Division (other than paragraph 70NBF(1)(d)) is proof on the balance of probabilities.

Note: The court may make an order under paragraph 70NBF(1)(d) in relation to a person only if the court is satisfied beyond reasonable doubt that the person contravened the child - related order.

1. The mother admitted that she did not facilitate the child spending time with the father on this date.
2. The father asserts that at 6.21 am on 8 June 2024 the mother said in a message to the father that she was really unwell today and would not be attending today and that she would provide a medical certificate when she got one.
3. The mother asserts that at a Magistrates' Court hearing in mid-2024 in relation to Intervention Order matters between the parties:

... it became apparent that the applicant was using firearms despite being a prohibited person at that time, and that he indicated to the Court that he wanted to continue using firearms... I was shocked and distressed to learn that the applicant continued to have access to his firearms, and very concerned as to the safety of (the child) in the applicant's care during this period.

1. The mother annexes to her affidavit some documents relating to these proceedings in the Magistrates' Court. One document is a Family Violence Final Intervention Order dated mid-2021 against the father for the protection of the mother, the child and the mother's parents. The document states that the Order expires in mid-2022. The document sets out certain restrictive conditions applicable against the father which does not include any reference to the father's use of firearms.
2. The mother asserts that following the above Magistrates' Court hearing her former lawyers requested of Victoria Police that they conduct a search warrant on the father to determine whether or not he had access to firearms, however they declined to do so.
3. The mother sets out in her former solicitor's letter to the Victoria Police dated 11 September 2024 alleged discussions between the Magistrate and the father at the hearing held in mid-2024 and at a later hearing in mid-2024.
4. At the first hearing (mid-2024), the father is alleged to have stated to the Magistrate that he needed firearms before late 2024 for sporting and social activities, target shooting, and hunting, but not for his work.
5. At the later hearing in mid-2024, it is alleged the Magistrate at one point said to the father:

I'm really asking why I shouldn't vary the order to include the usual order in relation to your firearms authority being suspended and handing in any firearms in your possession to police immediately.

1. The father is alleged to have replied, inter alia:

And my son's recently, I guess, obtained a firearms licence and I'd like to do the same and continue to shoot with my firearm. Like with, sorry, my son at, I guess, a licensed target range. We were previously members of [a firearms association].

1. At paragraphs 6 to 8 of the mother's affidavit she asserts:
   1. The applicant does not communicate with me and there is no prospect that he would provide me with any information in relation to his use of firearms, including whether they are properly stored and locked, whether he uses them whilst with [X] and whether he intends to use them with [X] moving forward. The applicant refuses to provide me with the most basic of information as to the nature of the accommodation he shares with [X], who they spend time with and what they do during their time together. I have no confidence that the applicant would be honest with me if he intended to take [X] shooting, an activity he shares with his other son.
   2. I was, and remain terrified of the applicant, particularly given my concern that he has access to firearms. I have and continue to have genuine concerns as to my safety, including concerns that the applicant will deliberately harm myself and [X] given the intense conflict that has not dissipated since [X]'s birth between us and those concerns have not abated.
   3. Following the hearing, and [in mid] 2024, I book flights myself and [X] to travel to Brisbane that weekend given my genuine concerns for the safety of [X]. At the time, I was so terrified after the revelation in the Intervention Order hearing that I simply wished to take [X] somewhere safe.
2. The mother asserts concerns in relation to what she contends was the father's access to firearms and related concerns as to her safety, including concerns that the father would deliberately harm the mother and the child. The Court is not persuaded that these concerns are reasonably based on the evidence before the Court.
3. The mother's annexed Intervention Order related documents included historical allegations of the mother against the father relating to alleged sexually inappropriate behaviour by the father against the mother in about 2020, unrelated to the use of firearms by the father. The mother does not adduce evidence that the father had previously, for example, threatened her or the child with the use of a firearm. She did not adduce evidence that, for example, the father had threatened her with the use of a firearm in relation to sexual matters.
4. The final Intervention Order made against the father for, in particular, the mother and child's protection, was dated mid-2021 and expired in mid-2022.
5. The transcript passages relating to the father's discussions with the Magistrate merely indicate that the father wished to use firearms for recreational purposes. The transcript passages did not indicate that the father wanted to use firearms in the presence of the child. The transcript passages did not clearly indicate that the father had been using firearms prior to mid-2024.
6. The mother conceded she had facilitated the child spending time with the father after 8 June 2024.
7. Further, the mother gives no explanation as to why she sent a message to the father at 6.21 am on 8 June 2024 stating that she was unwell and that she would provide a medical certificate without raising the firearms issue.
8. The Court is satisfied beyond reasonable doubt that the mother intentionally failed to comply with the Order 2(c) of the Court's orders of 8 February 2023 on this occasion.
9. For the reasons discussed above, the Court is not persuaded, on the balance of probabilities, that the mother has established a reasonable excuse in relation to this contravention count.
10. The Court finds this count proven by the father beyond reasonable doubt.

1. The mother asserts that she was unable to comply with a previously agreed make up time date of 23 June 2024 because she had a medical condition and was unable to facilitate changeover on that date or the day before.
2. She had told the father by message in a parenting app on 23 June 2024 that she was still unwell, "same as yesterday certificate to follow."
3. In the mother's affidavit she annexes a medical certificate from a GP stating that the mother was not medically fit to attend work on Saturday, 22 June 2024, and attaches a further medical certificate of 23 June 2024 stating she was not medically fit to attend work on Sunday, 23 June 2024. The medical certificates do not address the mother's alleged medical condition and how any such condition prevented the mother from merely facilitating changeover for the child's visit with the father.
4. The mother adduces no evidence as to why, for example, she could not have caught a taxi to facilitate the changeover, or why she could not have obtained assistance from another person to assist with the changeover.
5. The Court is satisfied beyond reasonable doubt that the mother made no reasonable attempt to comply with Order 6 of the Court's orders of 8 February 2023 on this occasion.
6. The Court finds that the mother has not established on the balance of probabilities a reasonable excuse in relation to this count.
7. The Court finds this count proven by the father beyond reasonable doubt.

1. The mother admits to not facilitating the child spending time with the father on 22 June 2024.
2. The father asserts that he received a message on this date from the mother at 7.15 am stating that she was unwell and therefore the child would not be attending today and she would provide a medical certificate. The mother relies upon the above medical certificates relating to 22 and 23 June 2024 for herself, which the Court has already discussed above in relation to Count 2.
3. For the reasons discussed above in relation to Count 2, the Court is satisfied beyond reasonable doubt that the mother made no reasonable attempt to comply with Order 2 (c) of the Court's orders of 8 February 2023 on this occasion.
4. The Court finds that the mother has not established on the balance of probabilities a reasonable excuse in relation to this count.
5. The Court finds that the father has proven Count 3 beyond reasonable doubt.

1. It is helpful to set out the relevant make-up time order being Order 6 of the Orders of 8 February 2023:
   1. That in the event that [X]'s time with the father does not occur due to [X] being ill or there being a medical or other emergency the prevents the mother from making [X] available to attend changeover and spend time with the father then the child shall spend make up time with the father on the following weekend or if unsuitable on another weekend within the next four weeks to be nominated by the mother after consultation with the father.

1. The mother asserts that she communicated with the father at various times between 19 July 2024 and 26 November 2024 relating to make up time for Count 3. In these communications, the mother variously offered make-up time on 4 August 2024, in the September school holidays, and in October 2024. However, these proposed make-up times by the mother did not comply with Order 6, and, the Court finds, do not constitute reasonable attempts by the mother to comply with Order 6. No explanation is proffered by the mother as to why no make-up time date could be nominated so as to comply with Order 6.
2. The Court is satisfied beyond reasonable doubt that the mother made no reasonable attempt to comply with Order 6 of the Court's orders of 8 February 2023 on this occasion.
3. The Court finds that the mother has not established on the balance of probabilities a reasonable excuse in relation to this count.
4. The Court finds that the father has proven Count 4 beyond reasonable doubt.

1. The father asserts that on 6 July 2024 the mother messaged him stating that the child had woken tonight with what the mother assumed was an ear infection; she asserted that he had a red ear and 38-degree temperature. The mother stated the child had a soaring temperature and was not well enough to attend.
2. The mother's affidavit states, inter alia, that she travelled to Brisbane with the child during this period to take the child to an ENT specialist. She states that she accepts that she did not advise the father that she was travelling with the child for this purpose.
3. She pleads guilty to Count 5 and agrees that she did not make the child available for time with the father without a reasonable excuse.

1. The father contends that the mother breached Order 6 by not making the child available for make-up time within four weeks of 6 July 2024 (which would calculate to 3 August 2024).
2. The mother repeats her assertions, referred to above, inter alia, that she communicated with the father at various times between 19 July 2024 and 26 November 2024 relating to make-up time.
3. The father spent time with the child on 3 August 2024 but this was his regular court-ordered time with the child and not make-up time.
4. During the contravention hearing brief submissions were made by both parties as to the proper construction of Order 6 of the Orders of 8 February 2023; namely as to whether make-up time under Order 6 had to be nominated by the mother after consultation with the father within four weeks of the missed visit or, alternatively, within five weeks of the missed visit.
5. The Court refers to its above extract setting out of Order 6. The most particularly relevant words in Order 6 are the words, "then the child shall spend make up time with the father on the following weekend or if unsuitable on another weekend within the next four weeks to be nominated by the mother after consultation with the father." In circumstances where this wording is ambiguous, and exercising caution, the Court would construe Order 6 as meaning that the make-up time must be nominated by the mother to occur within five weeks of the missed visit because the words "within the next four weeks" suggest that the "four weeks" is to be calculated from "the following weekend" after the missed visit rather than "four weeks" from the missed visit.
6. On this construction of Order 6, the mother did nominate 4 August 2024 for make-up time which would be within five weeks of the missed visit of 6 July 2024.
7. Accordingly, the Court finds that the mother made a reasonable attempt to comply with Order 6.
8. The Court finds that the father has not proven Count 6 and it shall be dismissed.

1. The mother admits to not facilitating the child spending time with the father on 20 July 2024.
2. The father refers to the mother messaging him at 8.32 am on this date stating that the child had been unwell since the previous day with temperature, barking phlegm, cough and irritable. The mother stated that she thought the child may be better today but he was not. The mother stated she had to test herself and the child this morning "as we have been in close contact with someone with covid from school" and consequently the child and herself and family were positive. The mother stated she would send a medical certificate when she was able.
3. The mother's affidavit confirms the above messages.
4. It annexes photographs of what appears to be two RAT Covid tests, but the photographs are unclear and moreover there is no evidence as to how the Court should interpret such photographs.
5. It also annexes a medical certificate dated 20 July 2024 from a GP merely certifying that the mother "needs carer's leave to look after their child today, Saturday, July 20, 2024." The medical certificates do not address the mother's alleged illness nor specifically the child's alleged illness.
6. The Court does not accept that the child and the mother were ill as alleged and it does not accept that the mother was unable to facilitate the child spending time with the father on 20 July 2024.
7. The Court is satisfied beyond reasonable doubt that the mother made no reasonable attempt to comply with Order 2(c) of the Court's orders of 8 February 2023 on this occasion.
8. The Court finds that the mother has not established on the balance of probabilities a reasonable excuse in relation to this count.
9. The Court finds that the father has proven Count 7 beyond reasonable doubt.

1. The relevant non-denigration order is Order 18 which provides, inter alia, that the parents, their servants or agents be restrained from denigrating the other party or their family in the presence or hearing of the child and from allowing anyone else to do so in their presence or hearing.
2. The father's affidavit merely refers to the child referring to the father in a derogatory manner. In the mother's affidavit she denies ever having denigrated the father in the presence or hearing of the child.
3. The Court finds that the father has not proven Count 8 and it shall be dismissed.

1. Counts 9 to 12 relate to alleged contraventions of a bond that the mother had entered into relating to previous breaches of parenting orders and pertaining to contended breaches of parenting orders by the mother 8 June 2024, 22 June 2024, 6 July 2024, and 20 July 2024.
2. The mother pleaded guilty to Count 5 (6 July 2024). Accordingly, the mother is guilty of Count 11 beyond reasonable doubt.
3. The Court has found the mother guilty of Count 1 (8 June 2024), Count 3 (22 June 2024), and Count 7 (20 July 2024). Accordingly, the father has established beyond reasonable doubt that the mother is guilty of Counts 9, 10, and 12.

Counts 13 and 14 (17 August 2024 and 18 August 2024)

1. The mother pleads guilty to Counts 13 and 14 and agrees that she did not make the child available for time with the father without a reasonable excuse.

Counts 15 and 16 (31 August 2024 and 1 September 2024)

1. The mother admits to not facilitating the child spending time with the father on 31 August and 1 September 2024.
2. The mother's medical certificate from a specialist dated 29 August 2024 refers to the mother having injured herself and being unable to work 31 August and 1 September 2024.
3. The mother asserts that on 19 August 2024 she injured herself. She asserts that she had an operation for same on 29 August 2024, which the Court accepts. She asserts that on 30 August 2024 she provided the father with a medical certificate which the father confirms in his affidavit.
4. The mother's former solicitors in their letter dated 30 August 2024 to the father state, inter alia, that the mother had to undergo surgery on 29 August 2024 for her injury. The letter refers to the mother being unable to bear weight for a period of two weeks as a result of the surgery, and a requirement to wear a medical aid for four weeks or longer pending her treating doctor's advice.
5. The Court is satisfied beyond reasonable doubt that the mother intentionally failed to facilitate time on this occasion in contravention of Order 2(d) of the Orders of 8 February 2023.
6. However, in the view of the Court, on the balance of probabilities, observing in particular the closeness of the surgery on 29 August 2024 to the court-ordered time on 31 August 2024 and 1 September 2024, the mother has proved reasonable excuse in relation to Counts 15 and 16. These counts shall be dismissed.

1. The mother admits to not facilitating the child spending time with the father on 14 and 15 September 2024.
2. The father refers to the mother messaging him on 13 September 2024 stating that she referred to her recent solicitor's letter regarding her injury and stated that the child would not be made available as she was unable to facilitate the visit. He refers to the mother attaching her medical certificate.
3. The mother's medical certificate dated 11 September 2024 attached to her affidavit merely states that the mother has a medical condition and she will be unfit to continue her usual occupation from 11 September 2024 to 1 October 2024 inclusive. No particularisation of the medical condition is given, nor how it incapacitated the mother from merely facilitating changeover.
4. The mother does not adduce persuasive evidence of being unable to effect a changeover, for example, via taxi, during the period referred to in the medical certificate, or being unable to arrange another person to assist her in facilitating changeover. In this context, it is not without relevance that the mother and child travelled to Country C with the child in September 2024 with the mother having stated in oral evidence that she had been (medically) cleared to fly at this time (in the presence of an asserted previously diagnosed medical condition whilst still wearing a medical aid).
5. The Court is satisfied beyond reasonable doubt that the mother made no reasonable attempt to comply with Order 2(d) of the Orders of 8 February 2023 on this occasion.
6. The Court finds that the mother has not established on the balance of probabilities a reasonable excuse in relation to these counts.
7. The Court finds that the father has proven Counts 17 and 18 beyond reasonable doubt.

1. The mother admits to not facilitating the child spending time with the father on 28 and 29 September 2024.
2. The father asserts that on Friday, 27 September 2024 the mother sent a message stating, "as per recent solicitor's letter and medical certificate [the child] will not be in attendance tomorrow. I have received no response to make up dates." This medical certificate appears to be the one issued on 11 September 2024 and discussed above.
3. The mother's affidavit, again, asserts that she had travelled to Country C with the child in September 2024 and was due to return to Melbourne on the morning of 28 September 2024 to enable changeover to occur. She had not told the father of this trip.
4. She asserts that prior to her return to Australia she was unwell with pain and was concerned that the medical condition, which was detected whilst having surgery in August 2024, and for which she continued to take medication, had flared up. She asserts that she was too unwell to facilitate changeover the following day.
5. In oral evidence the mother stated that on the flight back from Country C on 28 September 2024 she experienced complications relating to her medical condition.
6. The mother adduced no persuasive medical evidence in relation to her inability to facilitate time between the child and the father on 28 and 29 September 2024. The medical certificate of 11 September 2024, again, merely states that the mother has a medical condition and will be unfit to continue her usual occupation from 11 September 2024 to 1 October 2024 inclusive, and there is no particularisation of the medical condition or how it incapacitated the mother from merely facilitating changeover. As discussed above, the mother gave evidence that she was medically cleared to fly and did in fact fly to Country C during the period covered by the medical certificate.
7. As with Counts 17 and 18, the mother does not adduce persuasive evidence of being unable to effect a changeover, for example, via taxi, during the period referred to in the medical certificate, or being unable to arrange another person to assist her in facilitating changeover.
8. The Court finds beyond reasonable doubt that the mother made no reasonable attempt to comply with Order 2(d) on this occasion.
9. The Court finds that the mother has not established on the balance of probabilities a reasonable excuse in relation to these counts.
10. The Court finds that the father has proven Counts 19 and 20 beyond reasonable doubt.

1. Accordingly, the father has proven all counts except Counts 6, 8, 15 and 16.
2. The Court will allow the parties a reasonable opportunity to consider these Reasons and then shall relist the proceedings to hear submissions on penalty.

I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.