Summers & Douglas (No 2) [2025] FedCFamC2F 1214 (2 September 2025)

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 determine what orders are to be made arising from the Application-Contravention of the father filed on 11 April 2025 and the findings made on 15 July 2025 that the mother on two occasions contravened final orders as to the parenting arrangements of the parties' child made by consent on 1 October 2024 ("the final orders"). The mother was found to have contravened Order 4(a) of the final orders on 15 January 2025 ("the first contravention") and Order 4(b) of the final orders made on 22 March 2025 ("the second contravention").
2. These reasons incorporate and assume familiarity with the reasons delivered in this matter on 28 May 2025 and 15 July 2025.
3. The father relied upon his Affidavit filed 5 August 2025 and the annexures contained therein were tendered and marked as Exhibits. The mother relied upon her affidavit of 26 August 2025 and the annexures contained therein were tendered and marked as Exhibits. Both parties referred to Annexure L of the mother's affidavit filed 2 July 2025, and I have read same. Neither party was required for cross-examination and the matter proceeded on the written and oral submissions of the parties.
4. By way of his written[1] and oral submissions the father seeks orders for:-
   • makeup time between himself and the child;
   • the mother to attend and complete a Post-Separation Parenting Program;
   • a variation of the final orders;
   • the mother to enter into a bond for a period of two years with surety of $1,000; and
   • the mother to pay the father's cost on an indemnity basis, or in the alternative on a party/party basis calculated in accordance with the scale of costs.
5. The mother consents to an order that there be makeup time on twelve occasions but otherwise resists the orders sought by the father.

1. The Application - Contravention invokes Part VII Division 13A of the Family Law Act 1975 (Cth). The focus of a court in dealing with such an application is in making orders that will enforce future compliance with its orders rather than punishing for past behaviour. The court's focus is on the individual party and thus a penalty imposed to deter other likeminded persons would constitute an error of law.[2]
2. The court may, at any stage during the proceedings (and without having to make a finding about the alleged contravention) make an order for:
   • a make-up time parenting order[3];
   • an order varying or suspending a parenting order[4];
   • the attendance by a party at a post-separation parenting program.[5]
3. The court may make an order requiring any party to the proceedings to attend a post-separation or other specified program.[6] Before making this order, I must consider seeking the advice of a family consultant about the appropriate services.[7]

1. The parties agree that the child did not spend time with the father from 9:00am to 3:30pm on the two dates arising from each of the contraventions: a period of two days. The father deposes that in addition to the found contraventions, the child did not have any time with him from 20 March 2025 to 12 July 2025; a period of 32 occasions. A finding has not been made as to this assertion.
2. Order 4(c) of the final orders provide that the child is to currently spend time with the father:-
   • In week 1 from Wednesday 9:00am to Thursday 9:00am and Saturday 9:00am to 3:30pm; and
   • In week 2 from Wednesday 9:00am to 3:30pm and Saturday 9:00am to Sunday 9:00am.
3. The father seeks firstly orders, characterised as "makeup time", that Order 4(c) be varied to extend the child's time with the father:-
   • In week 1 from Wednesday 9:00am to Thursday 4:00pm and Saturday 9:00am to 3:30pm; and
   • In week 2 from Wednesday 9:00am to 3:30pm and Saturday 9:00am to Sunday 4:00pm.
4. Whilst disputing that make-up time is necessary to restore the child's relationship with the father nor in the child's best interests, the mother consents to makeup time such that from 10 September 2025 to 16 February 2026 the child spend time with the father from Wednesday 9:00 am to Thursday 9:00am; an additional period of overnight time on twelve occasions.
5. There is no end date to the father's asserted "make up" time that seeks to vary the orders to increase the child's time with the father by 14 hours a fortnight. Whilst the father submits that make-up time is necessary to restore the child's relationship with him, there is no evidence to ground any such finding.
6. I do not accept that this is "makeup time" but rather an attempt by the father to substantially vary the final orders. Contravention proceedings do not afford the court the appropriate mechanism by which to entertain a significant change in existing parenting arrangements. The court may vary or suspend a child-related order at any stage of the proceedings but must not do so unless it has considered whether there has been a significant change of circumstances and satisfied itself that it is in the best interests of the child for the final order to be reconsidered.[8] Even if the court were satisfied it was in the best interests of the child for the orders to be reconsidered, it is contrary to the child's best interests for there to be a significant change without there being a consideration of the factors as set out in section 60CC of the Act.[9] The father's application to vary the final orders in this manner will be dismissed.
7. Additionally, the father seeks further makeup time on eight occasions in week 2 by the extension of time from Wednesday 9:00am to Sunday 9:00am. The sought makeup time thus increases the child's time from one day and one overnight in week two to spending eight block periods of four nights with the father. Though this is for a defined period of time, it is again a significant change to the child's current parenting arrangements.
8. Whilst a finding of a contravention is not required for the court to make a make-up time parenting order and the amount of time specified in the make-up time order may be different from the amount of time that the child missed as a result of the alleged contravention, such an order is made under Division 6 of the Act. Thus, the child's best interests are the paramount consideration in determining what, if any, make-up time order is to be made.[10] The child is of tender age; being three years old. It is uncontested he has some vulnerabilities. Again, it is contrary to the child's best interests for there to be a significant change without there being a consideration of the factors as set out in section 60CC of the Act. There is no expert evidence before me as to the effect of the child being removed from his primary carer for block periods of time as sought by the father. I cannot be satisfied in those circumstances that the proposed orders are in his best interests.
9. The mother, as the resident parent, consents to orders for makeup time on twelve occasions that extends the child's midweek time afternoon time to overnight, mirroring for a period of time in week 2 the arrangement for week 1. This is an arrangement that currently exists. I will thus make an order that the child have makeup time on twelve occasions in the manner proposed by her.

1. The post-separation program proposed by the father is online, can commence at any time and costs $325.00. Whilst the mother has undertaken a post-separation parenting course, this was undertaken at the time of the parties' separation. The mother thus contravened the orders subsequent to this attendance. I am satisfied that the completion of another course may assist the mother in understanding her obligations pursuant to the final orders and will order that she undertake it as sought.

1. The father submits that it is appropriate to vary Order 14 of the final orders to make it clear to the parties what their obligations are pursuant to joint decision-making authority, to reduce the conflict between the parties and clarify for third party treaters and educators that each party is entitled to receive all information from the child from them.[11]
2. Order 14 of the final orders provides:

If there is any medical emergency involving [X], including but not limited to serious illness, accident or hospitalisation, the parent with the care of [X] is to immediately contact the other parent as soon as practicable and provide the other parent with all documentation and information in their possession regarding the emergency.

1. The "variation" of Order 14 sought by the father extends far beyond a minor change or "tinkering" of the final orders, instead seeking orders that:-
   • The parties advise each other of any medication prescribed for the child;
   • The parties advise the other immediately upon becoming aware of any illness, proposed dental treatment or appointment with any health professional, any issue of concern raised by the child's school/daycare and "any other major long-term issue";
   • The parties to advise each other a raft of details as to the details surrounding the child needing medical care;
   • The parties are entitled to receive all information from any medical practitioner, school/daycare upon which the child attends;
   • Each party is entitled to take the child to any appointments; and
   • Each party is entitled to be listed as an emergency contact at the child's school/daycare and any extracurricular activity the child attends.
2. The mother deposes as to her concerns that the father will be able to ascertain her residential address if the above orders were made. This concern was not challenged by way of any cross-examination.
3. For the same reasons as recorded in paragraph 14 above, the father's application to vary the orders in the manner sought will be dismissed.

1. The imposition of a bond is no trivial thing, a fact plainly recognised by the other less draconian powers and remedies available under the Act.[12] This is the first time the mother has been found to have contravened the orders. She has offered make up time to the father. I am satisfied, having the benefit of observing the mother over the course of the hearing of this application, that she is now aware of the potential consequences of noncompliance with orders of this court. She is further now aware that these findings will be taken into account in considering the consequences of any future contravention by her of the final orders. I am not satisfied that the circumstances justify the imposition of a bond, noting that even if I were so satisfied, a bond of two years as sought by the father is manifestly excessive.

1. The father seeks that the mother pay his costs on an indemnity basis in the sum of $65,399 and in the alternative on a party/party basis in the sum of $27,300, and that payment of any orders for costs can be made from monies of the parties' held in a conveyancer's trust account of $51,675 being the return of a deposit from the recission of a contract to purchase real property. The mother opposes any costs order.
2. Costs are determined pursuant to s 114UB of the Act. The father bears the onus to establish circumstances justifying a departing from the position that each party pay their own costs for the making of a costs order in his favour. The Act and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) confer a broad discretion on the court determining an application as to costs. The Full Court has made clear that it is unnecessary to spell out detailed reasons for decisions in costs matters.
3. The father concedes that the mother's financial circumstances are modest. She earns on average a gross income of $1,858 per week or $96,606 annually, in addition to receiving Family Tax Benefit and child support of $274 per week from the father. Her unchallenged weekly expenses total $2,704 and she deposes as to being required to borrow money funds or have an overdrawn bank account to meet the expenses of both herself and the child. She has nominal savings and deposes as to loans totalling some $68,000. I accept the mother's unchallenged evidence that she will be liable for the future costs of surgery to remove the child's grommets totalling some $3,000.
4. The father's gross weekly income is $1,942 or approximately $134,836 per annum including overtime, allowances and composite. He also has liabilities to third parties. The father deposes as to living with his current partner but there is no evidence as to her income or contributions, if any, to their household.
5. Neither party is in receipt of assistance by way of Legal Aid. The mother was served with the contravention application on 16 May 2025. She applied for Legal Aid on that same day. She was refused on 26 May 2025 as she did not meet income test. She lodged an appeal with Legal Aid and was awaiting a response when the matter was first listed for hearing on 28 May 2025. The mother had requested by earlier correspondence to the father's solicitor agreement to adjourn the matter pending the outcome of the legal aid appeal which was refused.
6. The father did not establish prima facie case as to one count. The mother was found to have had a reasonable excuse on two of the counts. The mother has been found to have contravened orders on two occasions without reasonable excuse. Thus, the father was successful as to only two of the five counts pressed by him.
7. The father did not make any offer to the mother to resolve the application. On 2 July 2025, the mother proposed a reduction in the time the child spend with the father which was rejected.
8. The mother has successfully defended the majority of the orders sought by the father arising from the Application-Contravention. The makeup time I have ordered was that consented to by her. The father has only successfully obtained an order that the mother attend a post-separation parenting program.
9. For the reasons recorded above I decline to displace the ordinary rule under s 114UB(1) of the Act that each party pay their own costs.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch.

[1] Written Submissions of the father filed on 5 August 2025.

[2] Winch & Jackson [2015] FamCAFC 75; (2015) FLC 93-649.

[3] Section 70NBB of the Family Law Act 1975 (Cth) ('the Act').

[4] Ibid s 70NBC.

[5] Ibid s 70NBD.

[7] Ibid s 11E.

[8] See s65DAAA of the Act, which codifies the principles enunciated in Rice v Asplund (1979) FLC 90 - 725; [1978] ("Rice v Asplund").

[9] See Dawe J in Ongal & Materns (no 3) [2013] FamCA 94612, citing the Full Court in Dobbs & Brayson [2007] FamCA 1261.

[10] Section 70NBB of the Act.

[11] Paragraph 10 of the Father's Written Submissions filed 5 August 2025.

[12] Winch & Jackson (2015) FLC 93-649; [2015] FamCAFC 75.