Sachs & Sachs (No 2) [2025] FedCFamC2F 1792 (18 December 2025)

(a) order 2(d) of the orders made 15 July 2024 in these proceedings be varied by inserting the following words in between the word "Monday" and the word "unless" appearing therein:

"and in the event that a public holiday should follow the end of the Christmas holidays that it be considered to be a continuation of those school holidays"; and

(b) order 3(e) of the orders made 15 July 2024 in these proceedings be varied by the addition of the following words at the end of that order:

"that in the event the Easter Monday falls during the school holidays then the handover, if relevant, shall occur on Easter Monday at 9am."

1. That pursuant to s 70NBD of the Act that the respondent do attend upon and complete the parenting course "Circle of Security" within six (6) months of these orders.
2. That the respondent mother do forward to the applicant father by electronic means a copy of a certificate of completion or the equivalent thereof comprising written confirmation of the course provider of the respondent having completed the said course within 14 days of completion of the said course.
3. That the applicant's application for the payment of expenses pursuant to s70NBF(1)(c) do stand dismissed.
4. That the Application - Contravention filed 10 July 2025 do otherwise stand dismissed as finalised.

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 21 November 2025 the Court delivered judgment ("the judgment") in relation to the applicant father's Application - Contravention filed 10 July 2025 which was brought pursuant to Division 13A of the Family Law Act 1975 (Cth) ("the Act") alleging contravention without reasonable excuse of certain parenting orders made with the consent of the parties on 15 July 2024 ("the primary orders").
2. In the judgment the Court was satisfied on the balance of probabilities that each of the contraventions alleged had been established to have occurred and each contravention had occurred without reasonable excuse.
3. On 8 December 2025 the Court heard submissions from the parties as to any further orders to be made in light of the judgment.
4. In the applicant father's Application - Contravention filed 10 July 2025 he sought that by way of sanctions or orders, the respondent mother:

(a) "...comply with the original order, and take specific actions to remedy the breach for time lost";

(b) "That the Order be considered for change so that all care weeks, regardless of term, or school holidays, be changed to Tuesday 9am to Tuesday 9am the following week, with one parent, alternating week on week with the other parent - Inline [sic] with continuous breaches on school holiday Mondays by the respondent, and also inline [sic] with the children's requests, for equal week about, to the previous children's lawyer";

(c) "...pay all legal costs, inline [sic] with the applicant [Mr Sachs] attempting mediation to avoid bringing this matter before the court"; and

(d) Attend "parenting programs or counseling [sic]... to address issues contributing to the non-compliance."

1. Plainly, some of the orders which the applicant father seeks are not orders which, on their terms, could be made by the Court.
2. In accordance with section 70NBB, 70NBC and 70NBD of the Act, the Court can make the following orders in contravention proceedings:

(a) a make-up time parenting order (if time is not spent);

(b) an order varying or suspending a parenting order; or

(c) an order requiring the respondent and any other party to the proceedings to attend a post-separation parenting program.

1. In accordance with section 70NBF of the Act, the Court can make the following orders by way of sanction in relation to a contravention without reasonable excuse:

(a) an order requiring the respondent to enter into a bond;

(b) an order imposing a fine on the respondent for failing to enter into a bond;

(c) an order imposing a fine on the respondent; and/or

(d) an order imposing a sentence of imprisonment on the respondent.

1. The sanctions referred to in [7(c)] and [7(d)] herein are not available in this case, as the findings as to contravention and the failure to demonstrate a reasonable excuse have been made on the balance of probabilities.
2. The applicant father sought the following sanctions and remedies through his Counsel's oral submissions on 8 December 2025:

(a) a variation of the primary orders being:

(i) the addition at the end of orders 2(c) and 2(d) of the primary orders the words "and in the event that a public holiday should follow the end of the Christmas holidays that it be considered to be a continuation of those school holidays"; and

(ii) the addition at the end of order 3(e) of the primary orders of the words "that in the event of the Easter Monday falls during the school holidays then the handover, if relevant, shall occur on Easter Monday at 9am";

(b) the attendance at a parenting course by the respondent at either "Parenting After Separation" or "Kids are First"; and

(c) costs being paid by the respondent to the applicant in respect of the applicant's travel and accommodation expenses in attending trial in the sum of $695.28 upon production to the respondent of the relevant receipts and/or invoices.

1. The applicant's claim for the payment of the $695 was submitted to be in respect of the payment of an "expense" within the meaning of and as permitted by section 70 NBA(1)(c).
2. There was no application for an order for costs pursuant to section 114UB of the Act.
3. The respondent submitted that there was agreement on behalf the respondent as to variation of orders 2(d) and 3(e) of the primary orders.
4. In respect of the variation that was sought to order 2(c) of the primary orders, this was said to be unnecessary by the respondent.
5. The respondent opposed the making of an order for the attendance at a parenting course, submitting that the respondent had completed the "Kids are First" course in 2021.
6. In addition, the respondent opposed the making of the order in respect of the expenses sought on behalf the applicant given that there was no application for costs.

1. The Court in its earlier judgment referred to the legal principles that attach to the operation of section 70NBA.[1]
2. It was agreed between the parties that there should be amendment of two of the primary orders which were the subject of some of the counts that came before the Court.
3. It could be thought, having had the benefit of the earlier judgment, that no amendment of the primary orders would be necessary as the judgment now informs the understanding that the parties should have in giving effect to the terms of the primary orders.
4. Despite that, the parties are now agreed as to the variations that should be made to orders 2(d) and 3(e) of the primary orders.
5. It can be inferred from the parties' agreement about proposed variations that the parties consider that such variations would promote the interests of the children X born in 2010 ("X") and Y born in 2012 ("Y") and that the fact of past disputes about the construction of orders enables the Court to be satisfied that the requirements of section 65DAAA are addressed.
6. The amendments to primary orders 2(d) and 3(e) shall be made as sought by the parties subject to the amending words not being simply added to the end of order 2(d) but rather inserted before the words "unless otherwise agreed in writing between the parents" appearing in primary order 2(d). The amendment will remind the parties of their respective obligations.
7. The reference to "Christmas holidays" in the proposed amendment to primary order 2(c) makes the proposed wording of the variation inapt with that paragraph that refers to other holidays in the school year. That variation will not be made.
8. The proposed variation to order 3(e) of the primary orders is an agreed matter. The variation as sought can be made to remind the parties of, in the absence of written agreement, what their respective obligations are under the orders.
9. There should be orders made varying the primary orders [2(d)] and [3(e)] in the best interests of X and Y as indicated pursuant to section 70NBC.

1. The contraventions in this matter occurred in October 2024. In January and April 2025, being about three or four years after the event, the Court is told the mother completed a post separation parenting course in 2021.
2. Where a post-separation parenting program is to be prescribed to be undertaken by a party in respect of a contravention application brought pursuant to Division 13A of Part VII of the Act, section 70NBD imposes duties upon the principal executive officer to notify the program provider of an order that has been made.
3. Having regard to the findings of the court at paragraph 107 of the earlier judgment[2] and the passing of time since the mother has last done a post-separation parenting course, the Court accepts that there would be purpose and benefit in the respondent mother undertaking a further parenting course that is different from that which she has previously completed.
4. However, no submission was made on behalf the applicant as to whether the nominated course "Parenting After Separation" was provided by an organisation that meets the conditions set out in section 65LB of the Act,[3] the availability of such course, whether it is available "online" and the costs of such a course. Without the submissions providing such information the Court is not persuaded in the circumstances of this matter to make an order that the respondent complete the "Parenting After Separation" course.
5. However, after making enquiries of its own accord, the Court has not been able to locate a course named "Parenting after Separation" but has obtained information that the organisation B Organisation, who have a head office located in City C, Australia, conduct a program "Circle of Security" which:

(1) is run both 'online' and in person;

(2) is free;

(3) is an 8 week program; and

(4) is run in 'terms', with the next 'term' start date being 5 February, with the conclusion date being 25 March 2025.

1. As such, the Court will make an order that the applicant do attend upon and complete the 'Circle of Security' parenting course within six (6) months of the date of these orders.
2. No order for makeup time pursuant to s70NBB was sought.

1. It remains a matter for the Court to determine what, if any, other orders by way of sanction or otherwise[4] are to be made where a contravention has been established to have occurred without reasonable excuse.[5]
2. In determining what orders are to be made the Court can have regard to, but is not bound by, the proposals or submissions made by the parties either in the Application that commences the proceedings or through submissions at the conclusion of those proceedings, as parties may agree arrangements that are either too harsh, too lenient or otherwise inappropriate. At the same time, it must be borne in mind that the proceedings remain to be resolved so as to serve the best interests of the children or child concerned[6] and the fact that parents agree about parenting of their children, even if it only occurs in the context of contravention proceedings, remains a matter which has to be weighed and is of significance where compatible with a child's interests in determining what sanctions are to be imposed.
3. In considering the order that might be made, it is to be noted that:

(a) there is no evidence or submission that the respondent has previously been found to have contravened a child related order;

(b) the respondent whilst persistent in her disregard of orders did not demonstrate a serious disregard for orders generally; and

(c) there is no evidence of any factor other than her breach of the contravention of orders that was submitted should be brought to account.

if the court finds that the respondent has contravened a child - related order without having a reasonable excuse, the court may make any of the following orders:

...

(c) where the contravention result in a child not spending time with, or living with, a person (the affected person) for a period - an order requiring the respondent to compensate the affected person for some or all of any expenses the affected person reasonably incurred as a result of the contravention.

1. The amount sought by the applicant was in respect of expenses incurred for travel and accommodation for the hearing as to the existence of contraventions and the making of submissions in respect of sanctions or other orders to be made in light of the judgment determining that contraventions without reasonable excuse existed, those travel and accommodation expenses having been incurred as a direct consequence of the contravention and it being "incumbent" upon him to bring the application.
2. The expenses described in the applicant's submissions were expenses incurred in conducting the litigation which arguably might be allowed, albeit under certain qualifying conditions, in an assessment of costs and disbursements in respect of any orders that come to be made under section 114UB of the Act.
3. The expenses spoken of in section 70NBF(1)(c) are expenses by way of compensation for expenses reasonably incurred "as a result of the contravention" indicating the expense claimed is sustained in the course of the acts constituting the contravention.
4. The notion of a respondent paying for the expenses sustained by an applicant in respect of an established contravention (for which there was not reasonable excuse) was introduced into the Act by amendments under the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (the "Amendment Act").
5. In relation to the original provision's introduction, it was said in the Explanatory Memorandum:[7]

New paragraph 70NEB(1)(e) enables the Court to order the person who contravened an order to compensate another person who incurred expenses as a result of the contravention. The expenses incurred must be reasonable expenses. This provision is intended to cover situations where airfares or other tickets purchased are wasted as a result of a person, for example, not making the child available for time with the other parent under a parenting order.

1. This provision for expenses is to be contrasted with a claim for costs for legal expenses[8] previously available under section 70NEB(1)(f) of the Act as it was prior to the amendments affected by the Amendment Act.
2. Any award of legal costs must be made, if at all, in accordance with section 114UB of the Act which provides that each party shall bear their own costs unless, in the circumstances of a particular case, the Court is of the opinion having regard to the matters set out in section 114UB(3) of the Act that a costs order should be made.
3. In this matter such a costs claim was not advanced by the applicant.
4. The Court does not consider that a claim for expenses of the type now claimed by the applicant for his participation at the trial can be allowed under section 70NBF(1)(c) of the present form of the Act as those do not have the requisite nexus with the committing of the contraventions under consideration in this case.
5. The applicant's claim for an order as to expenses to be made under section 70NBF(1)(c) is disallowed.

1. An order for costs is an order that provides partial compensation for the costs of conducting the litigation. Here the applicant was not legally represented until 29 October 2025, when his solicitor appeared on his behalf.
2. This is a matter where the applicant and respondent have been funded to retain legal representation under funding provided by the scheme administered by the Legal Services Commission of South Australia for the purposes of giving effect to section 102NA of the Act.
3. Such funding does not preclude an order for costs being made.[9]
4. However, no application for costs pursuant to section 114UB has been made and so no order for costs will otherwise be made at this time.

1. Given the matters referred to above and taking them into account, the Court is of the view that no further sanctions should be imposed upon the respondent under section 70NBF of the Act in relation to each of the three contraventions found to have occurred. The fact of the contraventions having occurred remains a matter that may well weigh in favour of other types of orders with sanction being made in future should this matter return to Court in respect of any future contraventions on behalf of the respondent that are found to have occurred without reasonable excuse.
2. There should be orders as appear at the beginning of these reasons finalising the present Application.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McGinn.

[1]Sachs & Sachs [2025] FedCFamC2F 1643, [54 - 58]

[2] Sachs & Sachs [2025] FedCFamC2F 1643, [107]

[3] See the definition of "post-separation parenting program", Family Law Act 1975, s 4.

[4] As for "sanctions see Family Law Act 1975 (Cth) s 70NAB(e) and s70NBF(1)(a), (b), and (d) and compensation provided for in s 70NBF(1)(c).

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

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

[7] Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005, [290]

[8] Cf Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005, [291]

[9] Legal Aid ACT & Westwell [2021] FamCAFC 50, [33].