A Distressed Child Did Not Excuse the Contraventions: Four Counts Proved Against a Mother Who Stopped at Encouragement

In Bernet & Alves [2026] FedCFamC2F 1152, Judge Murdoch dealt with a father's contravention application about final parenting orders made by consent on 17 March 2023. The mother admitted two counts, denied two, and said that all four were reasonably excused because of her child's resistance and distress ([1]–[4]). The result: all four pressed counts (counts 3, 5, 8 and 11) were found proved without reasonable excuse. The consequences were adjourned to 10 September 2026, and costs were reserved (Findings 1–4; Orders 5–7; [94]–[95]). The important point is that the test for reasonable excuse is objective, and a resident parent has a positive obligation to facilitate compliance, which includes exercising parental authority and not simply accepting a child's refusal ([13]–[14], [93]). All paragraph references below are to the judgment.

Why it matters: Parents who live with a child who resists changeovers often feel they can only do so much. This judgment says the Court will accept that a child's distress is real, and will still ask whether the parent's response was objectively reasonable ([30]). Genuine distress is relevant. It is not enough on its own, and it does not stop a resident parent from having to take reasonable steps to make the orders work ([15], [56]). The judgment also repeats the proper course for a parent who thinks the orders no longer suit the child: apply to vary them ([16]), which this mother never did ([5]).

🧩 Facts and Issues

The parties and the orders

Mr Bernet (the father) is the applicant and Ms Alves (the mother) is the respondent. The judgment is published under a pseudonym with approval under s 114Q(2) (cover notes).
The parenting orders were made by consent on 17 March 2023. Broadly, the child, X, who is now eleven, lives with the mother and spends time with the father on a graduated basis, culminating in five nights a fortnight and half of all school holidays ([2]).
There are no other substantive proceedings. The mother has never applied to vary or suspend the orders, before or after the contravention application was filed ([5]).

The contravention application

The father filed the contravention application on 10 October 2025, alleging eleven counts. Under orders made in chambers on 21 April 2026 he reduced it to five counts, and he withdrew one at the final hearing ([1], [3]).
He pressed counts 3, 5, 8 and 11 ([3]).
The mother admitted counts 8 and 11 but said they were reasonably excused. She denied counts 3 and 5 and said, in the alternative, that any contravention was reasonably excused ([4]).
The Court heard the case over three hearing dates (4 May, 26 June and 16 July 2026). The evidence included affidavits, a Child Impact Report dated 30 September 2025, outlines of case and written submissions on reasonable excuse ([6]–[9]).
At the close of the father's case, the mother's submission that counts 3 and 5 should be dismissed for want of a prima facie case was rejected, because the counts could be sustained taking the father's evidence at its highest ([7]). The onus then rested on the mother to establish a reasonable excuse ([8]).

The Court's broad factual findings

The Court said it could not decide each count "in an evidentiary vacuum" and made broader findings first ([18]):

X showed genuine resistance to spending time with the father and struggled with the transitions between households throughout 2024 and 2025 ([19]).
X has significant emotional difficulties, including a diagnosed condition, and the evidence showed a genuine deterioration in his emotional functioning over time ([21]). The Court did not accept that the child's distress was fabricated, exaggerated or wholly invented by the mother ([22]).
The mother's case shifted during the hearing, from X being a victim of abuse by the father to the mother's response being reasonable given X's resistance ([26]).
The mother tended to accept X's allegations about the father with little or no critical scrutiny. The Court accepted that she may genuinely hold her concerns but was not satisfied that they were objectively reasonable, and was not satisfied that X was a victim of emotional abuse by the father ([27]–[28]).
The father at times minimised and dismissed X's difficulties and resisted X obtaining psychological support. His responses were "dismissive and unhelpful and at times lacking insight", but they did not establish emotional abuse and did not justify a unilateral suspension of the final orders ([29]).

The four counts

Count 3 (5 October 2024): the start of the second half of the Term 3 school holidays. X did not go with the father. The mother encouraged him but accepted his refusal ([32]–[57]).
Count 5 (3 January 2025): a changeover at the mother's home. X came out without his bag, holding the mother's only security card, and went back inside ([58]–[69]).
Count 8 (28 May 2025): a changeover at school. The mother had promised X she would collect him from school ([70]–[83]).
Count 11 (20 August 2025): a changeover at school. The mother collected X from school just before the father was due to ([84]–[92]).

Issue

Did the mother establish, on the balance of probabilities, that she had a reasonable excuse for each contravention, given X's resistance and distress and her obligations as the resident parent ([11], [17])?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth), Division 13A: the purpose of Division 13A is to ensure compliance with parenting orders ([10]).
s 70NADA: the onus is on the person who contravened the order to establish the reasonable excuse (footnote to [8]).
s 70NAD(3): one circumstance in which a party may be taken to have had a reasonable excuse is where the person reasonably believed the contravention was necessary to protect the health or safety of a person, including a child, and the period of the contravention was no longer than necessary ([12]).
s 70NAD(4): the listed circumstances do not limit the meaning of reasonable excuse, and circumstances outside those listed may also qualify ([12]).
Family Law Act 1975 (Cth), Part XIVB and s 114Q(2): the publication restrictions and the approval of the pseudonym (cover notes).

📌 Precedents Relied On

The reasons cite authority in footnotes to the legal principles:

Savage & Savage [2017] FamCA 93: the reasonable excuse test is objective ([13], footnote 4).
In the Marriage of O'Brien (1993) FLC 92-396: the question is whether there were objectively reasonable grounds for the conduct, and a reasonable excuse is not established merely because a parent believes the orders are no longer in the child's best interests ([13], [16], footnotes 5 and 10).
Stamp & Stamp [2014] FCCA 1269: whether steps taken are a reasonable attempt to comply with a "time with" order depends on the facts and circumstances of each case ([13], footnote 6).
Childers & Leslie (2008) FLC 93-356: the resident parent's positive obligation to facilitate compliance and actively encourage a resistant child ([14], footnote 7).
Stevenson & Hughes (1993) FLC 92-363: the resident parent must exercise the authority ordinarily available to them, as they would to insist on attendance at school ([14], footnote 8).
Fooks & Clark (2004) FLC 93-183 and Raider & Raider [2011] FamCA 488: ordinary reluctance, anxiety or unhappiness associated with spending time under court orders will not ordinarily suffice ([15], footnote 9).

🧠 Analysis

Issue

Was the mother's response to X's resistance and distress objectively reasonable on each of the four occasions, so that she had a reasonable excuse for not complying with the final orders ([17])?

Rule

The purpose of Division 13A is compliance with parenting orders ([10]).
Reasonable excuse can include a reasonable belief that the contravention was necessary to protect a person's health or safety, for no longer than necessary, but the list is not exhaustive ([12]).
The test is objective. It is not merely what the mother believed. It asks whether there were objectively reasonable grounds for her conduct ([13]).
A resident parent has a positive obligation to facilitate compliance. Presenting the child at changeover and accepting a refusal is not enough. The parent must exercise their ordinary authority and actively encourage the child, as they would insist on school attendance ([14]).
A child's distress can contribute to a reasonable excuse, but ordinary reluctance, anxiety or unhappiness will not ordinarily suffice. There must be a reasonable basis to conclude that compliance would expose the child to harm or a material risk to their wellbeing ([15]).
Believing the orders are no longer in the child's best interests is not a reasonable excuse. The proper course is to apply to vary the orders ([16]).

Application

Genuine distress was accepted, but it was not the question

The Court accepted that X was distressed and that the mother genuinely believed he was struggling. It then said "the issue is whether the mother's response to X's distress was objectively reasonable having regard to her positive obligations under the orders as the resident parent" ([30]). The broader findings were the factual context. They did not decide any individual count ([31]).

The mother's concerns about the father were not objectively reasonable

The mother's defence leaned on a belief that the father treated X poorly, and on X's accounts of the father's conduct. The Court found that she accepted X's allegations with little critical scrutiny and, despite some contradictory objective evidence, continued to accept some of them ([27]–[28]). It was not satisfied that X was a victim of emotional abuse, and said the father's dismissive responses did not justify a unilateral suspension of the final orders ([28]–[29]). The Court did not accept that the father was blameless. It said his response was not child focused or helpful ([29]).

Count 3: encouragement without insistence

This was the mother's best count, and the Court said so. Her defence of reasonable excuse was "at its highest" on count 3. The circumstances were "more difficult than those confronting many resident parents faced with an unwilling child" ([55]). The Court accepted X's distress was genuine, and described the father's remark that X would be "coming with" him if he came downstairs as "perhaps unfortunate but an understandable response" ([55]).

Even so, the mother's encouragement was "limited and fell short of what is reasonably expected" ([56]). The Court found she "ultimately accepted X's refusal", did not require him to go downstairs, did not insist on compliance, and imposed no consequence for refusing a parental direction ([56]). It stressed that difficulty in complying is not impossibility, and that "the mother stopped at encouragement and did not move to insistence" ([56]). The Court was not satisfied she met her evidentiary burden ([57]).

This count is the "insufficient encouragement" kind. The mother did not actively defeat the changeover on this occasion ([56], [93]).

Counts 5, 8 and 11: arrangements that undercut the orders

On the other three counts, the Court found something more than insufficient encouragement. In each case it found the mother's conduct frustrated the orders ([68], [82], [91], [93]).

Count 5. X went outside to the father without his bag and with the mother's only building security card. The mother conceded she could not have got back into her unit had X left with the father. The Court found this "telling objective evidence that the mother had no genuine intention for X to enter into the father's care" and that her conduct "positively frustrated implementation of the orders" ([67]–[68]). Earlier that day she had also asked the father to collect X the next morning instead, after telling X she would text the father to ask him to come the next day ([59]). X was delivered at 8:30 am the next day, and the mother gave no explanation for how she managed that when she could not on the evening before ([65]).
Count 8. The mother told X she would collect him from school, and did not tell the father that she had said so ([75]–[78]). The Court said this "was not a case of the mother confronting X's refusal to transition" at changeover. Telling X she would collect him and making arrangements inconsistent with the orders is not encouraging him to spend time with the father. She "had made arrangements inconsistent with the implementation of the orders before changeover occurred" ([82]). The father's decision to leave, so as not to cause X stress, did not turn her conduct into a reasonable excuse ([80]–[82]).
Count 11. The mother texted the father an hour before changeover to say she would collect X, then texted at 2:56 pm, four minutes before school ended, to say she had X with her ([86]–[87]). The Court rejected her evidence that children were to be collected early that day, and drew the inference that she "had planned in advance with X to collect him early and attended early to prevent the father from doing so" ([89]–[91]). A child "cannot have expressed reluctance to attend a changeover that had not yet occurred", so X's reluctance could not explain what she did ([91]).

Belief that she was acting in X's interests was not enough

The Court said that even if the mother genuinely believed she was acting in X's interests, "any such belief is not objectively supported by the evidence, nor does it relieve her of the obligation to facilitate compliance with the final orders" ([93]). It summarised the four counts this way: count 3 is a failure to exercise reasonable parental authority, and counts 5, 8 and 11 are failures to facilitate compliance coupled with positive acts that frustrated compliance ([93]).

Conclusion

The mother contravened the orders on counts 3, 5, 8 and 11 without reasonable excuse ([94]; Findings 1–4). The consequences of the contravention application are to be determined on 10 September 2026, and costs are reserved ([95]; Orders 6–7).

This judgment does not decide what penalty or other consequence follows. It does not decide that the existing orders are in X's best interests today, and the mother has made no application to vary them ([5]). It does not find that the mother invented X's distress ([22]), and it records criticisms of the father's responses too ([29]).

🧠 Take-Home Lesson

Genuine distress is relevant, but the test is objective. The Court accepted X's distress and the mother's good faith, then asked whether her response was objectively reasonable ([30]).
A resident parent must go beyond presenting the child. Accepting a refusal is not enough. The parent must actively encourage and use the parental authority ordinarily available, as they would for school attendance ([14], [56]).
Encouragement alone can still fall short. On count 3, the mother encouraged X but "stopped at encouragement and did not move to insistence" ([56]).
Do not make side arrangements with the child. Promising a child that you will collect him from school, or planning to collect early, is not facilitating changeover and was treated as positively frustrating the orders ([82], [91]).
Tell the other parent what you have told the child. The mother did not tell the father she had promised to collect X on count 8 ([78]).
Believing the orders no longer suit the child is not an excuse. The proper course is to apply to vary the orders, and the mother did not ([5], [16]).
Concerns need objective support. The Court was not satisfied that the mother's concerns about the father were objectively reasonable, and not satisfied that X was a victim of emotional abuse by him ([28]).
The other parent's conduct will also be examined. The Court criticised the father for being dismissive, for minimising X's difficulties and for resisting psychological support, while holding that this did not justify suspending the orders ([29]).
For support workers and McKenzie friends: if a child is resisting time with the other parent, help the client put a documented, practical plan in place that supports compliance, and consider a variation application where the orders genuinely no longer work. A parent who simply waits for the child to agree is exposed.

"Distress explains a child's reluctance. It does not excuse a parent who stops at encouragement."

"If the orders no longer work, apply to change them. Do not quietly stop following them."

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