Rosetta & Corbo (No 3) [2025] FedCFamC2F 859 (24 June 2025)

(a) During the forthcoming 2025/2026 Long Summer Holidays:

(i) from 10:00am on Monday, 22 December 2025 until 4:00pm on Wednesday, 24 December 2025 - noting that pursuant to the Final Orders, the child is then to spend time with the Father from 4:00pm on Christmas Eve 24 December 2025 until 4:00pm on Boxing Day 26 December 2025; and

(ii) from 10:00am on Friday, 2 January 2026 until 4:00pm on Friday, 9 January 2026 and the Father be permitted to travel to City D with the child during this period of time

(b) During the 2026 April School Holidays, from 6:00pm on Friday, 10 April 2026 until 4:00pm on Monday, 13 April 2026; and

(c) During the 2026 July School Holidays, from 6:00pm on Friday, 3 July 2026 until 4:00pm on Sunday, 5 July 2026.

1. The Mother shall as soon as reasonably practicable enrol in and attend a Parenting Orders Program, such as the Parenting Orders Program offered by E Centre.
2. The Mother pay to the Parramatta Registry Manager of the Federal Circuit and Family Court of Australia a fine of $7,920 pursuant to s 70NBF(1)(d)(i) within 28 days.
3. The Mother pay to the Parramatta Registry Manager of the Federal Circuit and Family Court of Australia a fine of $3,330 pursuant to the former s 70NECA(3)(a) of the Family Law Act 1975 (Cth) within 28 days.
4. The Mother shall pay the Father the sum of $580 by way of compensatory costs within 28 days.
5. The Mother shall pay the sum of $4,282 to the Father by way of scale costs within 28 days.

1. Fines can be paid by Electronic Funds Transfer using the following payee details, quoting reference AYC 127 of 2021:

The Federal Court of Australia Administered Receipts Account

BSB: ...

Account number: ...13

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. On 25 March 2025 the Court delivered reasons in which it found that the mother had contravened final parenting orders made on 8 February 2023 (as varied on 19 October 2023 and 10 April 2024) relating to the child spending time with the father. As the Court stated in its Reasons:
   1. On 19 October 2023, the final orders were varied by consent including, inter alia, for the child spend make up time with the father on three occasions.
   2. 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 a condition of good behaviour.[1]
2. The later contraventions of the mother which the Court had dealt with in its reasons of 25 March 2025 related to the period from about 8 June 2024 to late September 2024. The Court's found contraventions included the mother failing to make the child available to spend time with the father at various times in that period, including make up time. It also included the mother failing, on four occasions during the period from 8 June 2024 to 20 July 2024, to comply with a bond entered into by the mother in accordance with the orders made on 10 April 2024.

(a) Schedule of Legal Costs;

(b) Proposed minute of make up time; and

(c) Schedule of costs for reimbursement.

(a) Written submissions; and

(b) Her Court Book.

(a) Exhibit A: Respondent's Court Book; and

(b) Exhibit B: Transcript of Intervention Order Hearing Reasons.

1. Again, the later contraventions of the mother which the Court had dealt with in its Reasons of 25 March 2025 related to the period from about 8 June 2024 to late September 2024. Accordingly, the relevant provisions of the Family Law Act 1975 (Cth) are Division 13A of the Act as amended by the Family Law Amendment Act 2023 (Cth) which came into effect on 6 May 2024.

1. Counsel for the father asserted the appropriate sanctions would be:

(a) to order make up time;

(b) to order that the mother attend a parenting orders program;

(c) to order that the mother pay fines;

(d) to order that the mother pay the father's costs on an indemnity basis, or in the alternative, scale costs; and

(e) to order that the mother pay the father the sum of $1,366 by way of compensation for expenses lost as a result of the mother's contravention.

1. Under s 70NBB of the Act, the Court may make a make up time parenting order as a result of the found contraventions.
2. In submissions, counsel for the mother submitted that the mother had no issue with the father's proposed orders for make up time except for the proposed make up time from 7 July 2025 until 10 July 2025 because the mother had a trip booked.
3. The father's proposed make up time orders (a one-page document) shall be made with the exception of the period proposed by the mother from 7 July 2025 until 10 July 2025.

1. Under s 70NBD, the Court may order a party to attend a post separation parenting program or other specified program. Before making an order under this section, the Court must consider seeking the advice of the Family Consultant about the services appropriate to the parties' needs (see section 11E).
2. In the view of the Court, there is a significant prospect that should the mother personally attend a parenting orders program it will assist (together with other orders) in ensuring that in the future the mother comply with relevant parenting orders, including in particular those orders requiring the child to spend time with the father. The Court can see no utility in seeking the advice of a Family Consultant in this context because it is clear that the mother needs to fully understand the import of complying with previously made final parenting orders, in particular those orders requiring the child to spend time with the father.

1. Under s 70NBF, the Court may, where it has previously been satisfied beyond reasonable doubt that the respondent, in this case the mother, contravened a child-related order without reasonable excuse, order a fine not exceeding 60 penalty units. Under s 2B of the Acts Interpretation Act 1901 (Cth), "penalty unit" has the meaning given by s 4AA of the Crimes Act 1914 (Cth). Under s 4AA a "penalty unit" means the amount of $330.
2. It was submitted by counsel for the father that the Court was not permitted to impose a sanction by way of fines globally but that each separate contravention count needed to be considered in this context separately.
3. Turning to s 70NBF, the Court must have regard to certain matters set out under s 70NBF(2) as follows:

(2) In making an order mentioned in subsection (1), the court must have regard to:

(a) the likely effects of making the order on any child, or any other person; and

(3) Without limiting the matters the court may take into account, the following matters must be taken into account by the court when having regard to the seriousness of the contravention:

(a) whether a court has previously found that the respondent has contravened a child‑related order without having a reasonable excuse;

(b) whether the respondent behaved in a way that showed a serious disregard of the respondent's obligations under the child‑related order mentioned in subsection (1);

(c) the behaviour of any person with whom the child is to live or spend time under the child‑related order mentioned in subsection (1).

1. The mother is aged 53 years. She is a single mother and primary carer of 3 boys, aged 15, aged 13, and the subject child aged 4.
2. It is submitted by the mother that she is the proprietor of childcare centres.
3. Because the mother did not adduce any significant financial evidence, including in relation to her usual regular income and expenditure, it is not possible to state whether the imposition of a significant fine or fines upon the mother would have a particular effect upon the above children. For example, in the absence of such evidence, is not possible to state whether or not the imposition of the final fines would negatively impact the mother's ability to care for the above children. The Court observes that the Child Support Assessment dated 15 January 2025 issued to the mother states, inter alia, that the mother's provisional income for 2023 to 2024 is in the range $174,520 to $192,490 being significant income. There is an absence of evidence before the court as to the submission made that the mother has spent an estimated $500,000 on legal fees and the court attaches no weight to this submission.
4. As to the seriousness of the found contraventions, again, the court has previously found that the mother has contravened child-related orders without having a reasonable excuse.
5. As to whether the mother behaved in a way that showed a serious disregard of her obligations under the previous relevant child-related orders, the Court is of the view that she did show such a serious disregard. In this regard, the Court has taken into account the following.
6. The Court refers to its reasons for judgment relating to why the Court was satisfied beyond reasonable doubt that the mother intentionally failed to comply with certain previous final parenting orders of the court, and as to why the Court was not persuaded that the mother had established reasonable excuse in relation to the found contraventions.
7. Inter alia, the mother had, in relation to numerous of the found contraventions, made no reasonable attempt to comply with the relevant parenting order, including not having simply caught a taxi to facilitate the changeover or obtained the assistance of another person to assist with changeover; and she had pleaded guilty to not having made the child available for time with the father without a reasonable excuse in relation to Counts 5, 13, and 14. In relation to many of the found contraventions the mother gave very late notice to the father of her alleged inability to facilitate the child's time with him.
8. In relation to this issue of whether or not the mother behaved in a way that showed a serious disregard of obligations, the mother points to various matters.
9. The short report of the psychologist Mr F dated 19 May 2025 refers to the mother first attending upon the psychologist in March 2025, and that the mother was referred by her GP with a mental health-care plan in April 2025 for anxiety, depression and stress. The Court observes that the found contraventions relate to the period from June to September 2024. The Court observes that the mother's affidavit of 12 March 2025 did not expressly refer to the mother suffering from anxiety, depression, and stress as being an alleged reason for not complying with the relevant parenting orders.
10. The letter from the physiotherapist dated 2 April 2025 on behalf of the mother merely refers to the mother's difficulties with physical activities of daily living.
11. The report of the psychologist Dr G is a report in relation to the child and addresses matters the parents can consider to assist in strengthening the child's relationship with the father. The mother had not adduced evidence in her above affidavit that a significant reason for not facilitating time between the child and the father was the child's reluctance or opposition in doing so. The Court would make similar comments in relation to the report of Dr G dated 23 January 2023 which well predates the found contraventions that occurred in 2024.
12. The mother refers to her two reference letters. The letter from the mother's friend Ms H dated 11 March 2025 does not clearly address the found contraventions. The Court further observes that Ms H is not on affidavit. The Court would attach little weight to it. The Court makes similar comments in relation to the letter dated 11 March 2025 from the mother's former partner Mr J.
13. The mother submits that she had previously made attempts to resolve the matter with the father or to offer make up time. As to paragraph 25 to 32 of her above affidavit relating to Count 6, and her offers of make up time in these paragraphs, the Court observes that it had dismissed this Count. As to the mother's evidence in her above affidavit to resolve the matter through offering make up time, such evidence is somewhat vague and lacks particularisation, and merely refers to the mother offering, in open court, time to be spent with members of the father's family.
14. The Court takes into account the mother's written requests to the father to offer make up time as set out in her above affidavit, but again, the Court refers to its reasons for judgement, the belatedness of certain offers of make up time (that is, such offers were made well after the court-ordered visitation dates), and in any event would observe that a parent such as the father is entitled to require the mother to comply with existing formal orders of the Court relating to the specific times when the child is to be made available for time with the father.
15. The mother submits that she has been previously punished and in this context refers to an Intervention Order decision of a Magistrate; see the transcript of the Magistrates Court of Victoria hearing of late 2024, Exhibit B. The Court would observe that the Magistrate had been dealing with two cross-applications for final family violence intervention orders under the Family Violence Protection Act 2008. This Court observes that the factual subject matter of that decision related to events preceding early June 2024. The Court further observes that the Magistrate had refused the mother's application for an intervention order having considered the mother's concerns largely speculative. And in relation to the application of the father for the intervention order the Magistrate had found that certain of his allegations did not constitute family violence. The Magistrate had found that the mother's withholdings of the child on 11 occasions between November 2023 and February 2024 did satisfy the tests under s 7 of the above Act and as such proposed to grant the father's application. The Magistrate went on to consider that a safe contact order was appropriate, namely a prohibition on family violence only and made the order for 12 months. In the view of this Court, the subject matter of the Magistrates Court of Victoria and the related determination of the Magistrate does not significantly assist the mother in this case in relation to penalty.
16. The mother submits that she has been remorseful for her past behaviour in relation to the proven contravention counts. In paragraph 76 of her above affidavit she concedes at times her actions had been inappropriate and that she had not complied with orders as required. However, she goes on to state that her relationship with the father and herself has been so fraught and toxic "that at times I've made poor decisions largely on the desire to receive some respite from the ongoing conflict between the applicant and I". Nevertheless, under the relevant parenting orders, in relation to the child spending time with the father, and the subject of the proven contravention counts, the mother was simply required to ensure that the child was made available at the changeover location. There was no significant evidence adduced before the Court in relation to, for example, consistent significant conflict occurring at changeovers, and her above affidavit did not proffer as a relevant excuse this particular matter of conflict; rather the mother had particularly referred to alleged illness and disability.
17. The Court has considered the relative seriousness of each of the found contraventions. In view of the Court, in this context, it should impose two penalty units, $660, in relation to each of the following found contravention counts: 1 to 5, 7, 13 to 14, 17 to 20. Those proven contravention counts total 12, with the fine totalling $7,920.
18. The mother was found to have failed to comply with the previous bond entered into in accordance with the orders of the Court of 10 April 2024; there were 4 counts proven against the mother in this context.
19. Under section 70NCB(2)(a), the Court may, where it has found that the respondent, in this case the mother, has contravened a child related order without having a reasonable excuse, and "the respondent has entered into a bond in accordance with an order made under paragraph 70 NBF(1)(a)", and the respondent fails without having a reasonable excuse to comply with the bond, without prejudice to the continuance of the bond, impose a fine not exceeding 10 penalty units on the respondent. However, the relevant bond was not entered into by the mother "in accordance with an order made under paragraph 70 NBF(1)(a)". Rather, the mother had entered into that bond under the repealed section 70NEB(1)(d); effectively repealed by the Family Law Amendment Act 2023 (Act No. 87 of 2023) on 6 May 2024.
20. However, under section 7(2) and (3) of the Acts Interpretation Act 1901 (Cth), it is provided:

No effect on previous operation of Act or part

(2) If an Act, or an instrument under an Act, repeals or amends an Act (the affected Act) or a part of an Act, then the repeal or amendment does not:

(a) revive anything not in force or existing at the time at which the repeal or amendment takes effect; or

(b) affect the previous operation of the affected Act or part (including any amendment made by the affected Act or part), or anything duly done or suffered under the affected Act or part; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act or part; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the affected Act or part; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.

Any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the affected Act or part had not been repealed or amended.

Note: The Act that makes the repeal or amendment, or provides for the instrument to make the repeal or amendment, may be different from, or the same as, the affected Act or the Act containing the part repealed or amended.

Interpretation

(3) A reference in subsection (1) or (2) to the repeal or amendment of an Act or of a part of an Act includes a reference to:

(a) a repeal or amendment effected by implication; and

(b) the expiry, lapsing or cessation of effect of the Act or part; and

(c) the abrogation or limitation of the effect of the Act or part; and

(d) the exclusion of the application of the Act or part to any person, subject matter or circumstance.

(4) A reference in this section to a part of an Act includes a reference to any provision of, or words, figures, drawings or symbols in, an Act.

1. The effect of the above provisions is to confer power on this Court to impose a fine upon the mother for her breaches of the bond pursuant to the former (also) repealed section 70NECA(1), (2) (3)(a) which provided:

(1) If a court has made an order under paragraph 70NEB(1)(d) requiring a person to enter into a bond in accordance with section 70NEC, the following provisions have effect.

(2) If the court (whether or not constituted by the judge or magistrate who required the bond to be entered into in accordance with section 70NEC) is satisfied that the person has, without reasonable excuse, failed to comply with the bond, the court may take action under subsection (3).

(3) The court may:

(a) without prejudice to the continuance of the bond entered into in accordance with section 70NEC, impose a fine not exceeding 10 penalty units on the person;

1. The father, in his contravention application filed 8 January 2025 had sought a fine in the sum of 10 penalty units. The Court takes into account the fact that the mother had entered into the bond, the mother's compliance with the bond otherwise than in relation to her non-compliance, and the above fine in relation to the proven contravention counts totalling 12. It will be appropriate and just to fine the mother 10 penalty units, totalling $3,330.

1. Again, the father seeks compensation in relation to the proven contravention counts, the sum of $1,366. The Court has power to make such an order under s 70NBF(1)(c) in relation to expenses incurred by the parent deprived of spending time with a child by reason of a found contravention. The expenses should be reasonably incurred as a result of the contravention.
2. The father's affidavit stated that he incurred costs in connection with his travel to Melbourne to spend time with the child on the occasions the mother contravened the orders. He produced a documentary schedule listing his expenses. The mother only submitted that the father should not be compensated for his accommodation related costs because he was otherwise visiting his other children at the same times as his scheduled visits with the child. The Court does not accept that the father had other available accommodation as submitted by the mother and accepts his submissions in this context. The Court finds that the father did reasonably incur his costs as set out in his documentary schedule, but only those costs that relate to the Court's found contraventions, and thus makes a compensation order for his expenses incurred on 22 June, 6 July, 8 July, 17 August, and 15 September 2024**,** totalling $580.

1. The Court takes into account relevant considerations under s 117(2A) of the Act.
2. The Court refers to the mother's financial circumstances, as set out in the Child Support Assessment, discussed above. The Court refers to the father's financial circumstances set out in that assessment, noting that indicates the father's relevant income to be substantially less than that of the mother.
3. The Court takes into account the found contravention counts against the mother pursuant to its judgment; 12 counts found, and 4 bond-related counts found. The Court takes into account those contravention counts against the mother that were dismissed, being 4 in total.
4. As to the conduct of the parties, the mother submits that her above affidavit indicated that she had sought to offer and negotiate make up time with the father. In this context, she concedes that the parties do not communicate well, and herself states that she dreads receiving communications from the father. In the view of the Court, inter alia, this lack of communication between the parties should have, in particular, made it abundantly clear to the mother that it was necessary for her to comply with Court's orders relating to the child spending time with the father. The Court does not accept that the father has in some way contributed to the cost of the contravention proceedings, as submitted by the mother.
5. The Court has found that the mother had behaved in a way which showed a serious disregard of her obligations under the previous child related orders.
6. The above considerations might be seen to weigh in favour of an award of indemnity costs; however, there was no compliance by the husband with r 12.13(4) in that the terms of the relevant costs agreement/s with the father's legal representatives are not before the Court.
7. The father's alternative application was for scale costs. Taking into account the above matters, it will be just to order that the mother pay 80 per cent of the father's scale costs; thus she should pay the sum of $4,282.
8. The Court makes orders accordingly.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.

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