Court Cracks Down on Parenting Order Breaches: Sanctions Imposed for Repeat Contraventions

Introduction

The case of Fermikis & Fermikis (No 2) [2025] FedCFamC1F 58 highlights the consequences of repeated breaches of parenting orders in Australian family law. Justice Carter addressed multiple contraventions by the mother, who had previously been sanctioned for similar violations. The court had to determine appropriate penalties, balancing the need for compliance with parenting orders against the potential impact on the children. The ruling underscores the importance of obeying family court orders and the judiciary’s preference for corrective rather than punitive measures.

Facts and Issues

Facts

• The mother had previously breached parenting orders, leading to the imposition of bonds.
• Despite these bonds, she again failed to comply with orders on four separate occasions (11 December 2022, 27 December 2022, 28 December 2022, and 16 January 2023).
• Her violations included failing to ensure the children attended scheduled visits with their father and involving them in parental disputes during changeovers.
• The father sought severe sanctions, including imprisonment and indemnity costs.
• The mother argued for a more rehabilitative approach, suggesting parenting programs rather than punitive measures.

Issues

1. Should the mother’s breaches be sanctioned under Subdivision E (less serious) or Subdivision F (serious) of the Family Law Act 1975 (Cth)?
2. What is the appropriate penalty for the repeated contraventions?
3. Should the father be awarded costs and compensation for expenses incurred due to the mother’s breaches?

Application of Law

• Under Part VII Division 13A of the Family Law Act 1975 (Cth), Subdivision F applies when a party has previously been sanctioned for contraventions and continues to disobey court orders.
• The court determined that the mother’s repeated breaches while already serving bonds demonstrated a “serious disregard” for her obligations, making Subdivision F applicable.
• The court rejected the father’s request for imprisonment, citing McClintock & Levier (2009) FLC 93-401, which emphasizes that contravention penalties should be coercive rather than punitive.
• Instead, the mother was required to enter four further six-month bonds and attend six counseling sessions on parenting at her expense.
• The court awarded the father compensation of $1,155.81 under s 70NFB(2)(f) of the Act for travel expenses.
• Regarding costs, the court considered Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225 and similar cases, ruling that while indemnity costs were inappropriate, the mother should pay party-party costs for the period before the father obtained legal aid.

Analysis of Judgment

Justice Carter’s decision reflects the court’s strong stance against repeated contraventions of parenting orders while favoring corrective measures over punishment. The ruling aligns with prior case law that emphasizes compliance-focused sanctions rather than punitive ones (McClintock & Levier). The mother’s previous failure to comply despite prior sanctions led the court to impose additional conditions aimed at modifying her behavior rather than escalating penalties. The rejection of imprisonment highlights concerns about the potential negative impact on the children, reinforcing the principle that sanctions must prioritize the children's best interests (s 70NBA(2) Family Law Act).

Take-Home Lesson

Repeated breaches of parenting orders can lead to increasingly severe sanctions, but courts prefer rehabilitative approaches over punitive measures. Parents should take contravention proceedings seriously, as failure to comply can result in financial penalties, legal costs, and court-ordered counseling. Ultimately, compliance with court orders is crucial not only to avoid sanctions but also to support the best interests of the children.