Hatfield & Rivas
[2024] FedCFamC1A 202
•31 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Hatfield & Rivas [2024] FedCFamC1A 202
Appeal from: Hatfield & Rivas [2024] FedCFamC2F 916 Appeal number: NAA 176 of 2024 File number: MLC 5988 of 2021 Judgment of: AUSTIN J Date of judgment: 31 October 2024 Catchwords: FAMILY LAW – APPEAL – Where an appeal is brought from the dismissal of the husband’s contravention application – Where the primary judge fell into error by conflating the different burdens of proof borne by the parties – Where the primary judge incorrectly applied new legislation to historic contraventions – Appeal allowed – Contravention application remitted for re-hearing by another judge – Where the husband is granted a costs certificate. Legislation: Acts Interpretation Act 1901 (Cth) Sch 2
Family Law Act 1975 (Cth) Pt VII, Div 6, 13A, ss 60CA, 65AA, 70NAC, 70NAD, 70NADA
Family Law Amendment Act 2023 (Cth) ss 2, 7
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 11.69
Cases cited: Dobbs & Dobbs (2021) FLC 94-021; [2021] FamCAFC 78
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Edinger & Duy (2023) 68 Fam LR 55; [2023] FedCFamC1A 194
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32
Huda v Huda (2018) FLC 93-837; [2018] FamCAFC 85
Lim v Comcare (2019) 165 ALD 217; [2019] FCAFC 104
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348
Repatriation Commission v Nation (1995) 57 FCR 25; [1995] FCA 1277
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Number of paragraphs: 77 Date of hearing: 31 October 2024 Place: Melbourne Counsel for the Appellant: Mr Werner Solicitor for the Appellant: Johnston Family Law The Respondent: Litigant in person ORDERS
NAA 176 of 2024
MLC 5988 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR HATFIELD
Appellant
AND: MS RIVAS
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
31 OCTOBER 2024
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The order made on 12 June 2024 is set aside.
3.The Application-Contravention filed by the appellant on 9 February 2024 (confined to Counts 1, 2, 7, 8 and 10) is remitted for re-hearing by another judge of the Federal Circuit and Family Court of Australia (Division 2).
4.The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to him in respect of the costs incurred by him in relation to the appeal.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hatfield & Rivas has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
These reasons explain why the father’s appeal from a decision made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 12 June 2024 to dismiss the contravention application by which he prosecuted the wife for multiple breaches of parenting orders must be allowed and the dispute remitted for re-hearing.
Background
The parties have two children, now aged 17 and 12 years.
Final parenting orders in respect of the children were made between the parties in March 2023.
Contextually, the orders provided for the parties to have equal shared parental responsibility for the children, for the children to live predominantly with the mother, and for them to live with the father for substantial periods of time.
More specifically for the purposes of the contravention proceedings, the orders provided for:
(a)the parties to inform one another as soon as practicable about any injury or medical condition suffered by the children requiring professional care and to keep one another informed of the children’s treating doctors (Order 2(h)) – the alleged breach of which order was the subject of Count 2;
(b)the parties to inform one another within 24 hours of any school absence or late attendance by either child and the reason therefor (Order 18) – the alleged breaches of which order were the subject of Counts 7 and 8;
(c)the parties’ joint obligation to keep the children’s passports current and for the passports to be furnished to the other within seven days of a request to facilitate travel and the acquisition of visas (Order 19) – the alleged breach of which order was the subject of Count 10;
(d)the parties’ joint obligation to attend upon a psychologist to improve their communication and, in the event of their failure to agree upon a psychologist, the mother to choose one from a list of three provided by the father (Order 20) – the alleged breach of which order was the subject of Count 1.
The father filed an Application-Contravention in February 2024 alleging 10 counts of the mother’s breach of the parenting orders.
On the first day of the hearing before the primary judge, five counts were withdrawn and dismissed, so the father prosecuted only the remaining five counts (at [9]), in support of which he relied upon his affidavit affirmed on 11 January 2024 (at [6]-[7]).
The reasons for judgment record the mother denied each of the remaining five counts (at [10] and [12]), but that is not strictly correct. The mother denied Counts 2, 7, 8 and 10. However, in respect of Count 1, she admitted the contravention but maintained the breach was reasonably excused. In relation to that count, the mother had this exchange with the primary judge:
HIS HONOUR: [The mother] is alleged by contravention application filed 9 February 2024 that on 14 April 2024, you did contravene without reasonable excuse, order 20 of the final orders made 1 March 2023. Do you admit or deny the allegation?
[The mother]: I’m just reading it. I admit to that, yes. Oh sorry, so without reasonable excuse, I deny that.
(Transcript 11 June 2024, p.22 lines 8–14) (Emphasis added)
At the close of the father’s evidence, the parties made submissions about whether the evidence was capable of establishing the five remaining counts (at [13] and [32]).
The primary judge pronounced judgment and gave reasons ex tempore, dismissing each count, finding the father’s evidence did not establish, to the civil standard of proof, that the mother either intentionally breached the orders or alternatively made no reasonable attempt to comply with them (at [37] and [39]). Consequently, the contravention application was dismissed without the mother adducing any evidence.
The father appealed from the dismissal order, though the grounds of appeal were later amended.
Ground 12 is a complaint of the denial of procedural fairness and allegedly vitiates the findings in respect of all counts.
The first 11 grounds relate to the individual counts.
Ground 12
This ground is pleaded as follows:
12.The manner and extent of the learned primary judge’s interventions in the [mother’s] cross examination of the [father] was such as to constitute a denial of procedural fairness to the [father].
In support of the ground, the father submitted this in his Summary of Argument:
52.The conduct of the learned primary judge during the cross examination of the [father] constituted an “egregious departure from the judge’s role [such] that it unduly compromise[d] the judge’s advantage of being able to objectively evaluate the evidence.”…
…
59.There will always be a grey area separating legitimate judicial intervention from improper conduct in which a judge has descended into the arena and/or become clouded by the dust of the conflict. Necessarily, it must be a question of fact and degree. In this case, the learned primary judge crossed the line. That is evident not only by the cumulative weight of interventions by his Honour but also the nature of the interventions themselves. In the circumstances, the [father] was denied a fair hearing.
(Italicised emphasis in original) (Footnotes omitted)
The normative adversarial process is for the judge to remain detached from the contest and to determine the justiciable cause on the evidence the parties see fit to adduce (GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 at [19]). Excessive judicial intervention can vitiate the judgment by transcending the boundaries of the distinct, yet inter-related, doctrines of apprehended bias and the denial of procedural fairness (Edinger & Duy (2023) 68 Fam LR 55 at [20]–[31]; Huda v Huda (2018) FLC 93-837 at [20]–[28]) but, as the father correctly acknowledged, whether the lines are crossed is a “question of fact and degree” in the circumstances peculiar to the case at hand (Edinger & Duy at [21]).
Here, the complaint is confined to the denial of procedural fairness and does not extend to an allegation of apprehended bias. It could hardly be otherwise because the father was represented by counsel at the hearing, who made no disqualification application and thereby waived any such complaint on the father’s behalf (Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [76] and [79]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344, 357 and 360; Vakauta v Kelly (1989) 167 CLR 568 at 577–579 and 586–588).
It is certainly true the primary judge frequently interrupted the father’s cross-examination and betrayed a level of irritation with him, or at least with his application. With the benefit of hindsight, his Honour would probably have treated the father with more civility, as he deserved. Nevertheless, the complaint of the father’s denial of procedural fairness due to the primary judge’s intemperate interjections needs to be contextualised by several important observations.
First, the primary judge was entertaining the father’s contravention application, the procedure for hearing which is quasi-criminal, with an expectation that he be put to strict proof of the allegations (r 11.69 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); Dobbs & Dobbs (2021) FLC 94-021 at [24]). It was not an orthodox civil dispute requiring resolution of the parties’ rights in an inter partes sense, much less a parenting dispute under Pt VII, Div 6 of the Family Law Act 1975 (Cth) (“the Act”) decided by an exercise of discretion guided by the child’s best interests (s 60CA and s 65AA).
Secondly, the mother was not legally represented at the hearing, thereby triggering the primary judge’s obligation to try and impartially redress her disadvantage (Re F: Litigants in Person Guidelines (2001) FLC 93-072 at [215], [218], [232]–[241] and [246]–[253]), it being well recognised that the lack of legal knowledge is a misfortune, not a privilege (Gallo v Dawson (1990) 93 ALR 479 at 481).
Thirdly, the father was legally represented by counsel who was well able to robustly protect his interests, but at no point did counsel raise any objection to the primary judge’s interjections. The retrospective complaint now made about the primary judge’s conduct tends to wear the appearance of an afterthought with the aim of enhancing the appeal’s chances. The complaint was not made until the grounds of appeal were amended in October 2024.
In combination, those factors tip the balance against any conclusion the father was deprived of procedural fairness. Ground 12 is rejected.
Grounds 1 and 2
These two grounds pertain to Count 1, which alleged the mother breached Order 20 by failing to choose a psychologist from the list of three given to her by the father’s solicitor in correspondence sent in early April 2023.
Order 20 provides:
That the parties attend counselling at equal expense with such psychologist as shall be agreed between them with a view to improving communication between them and to assist the parties to not involve the children in adult issues and, in the event the parties cannot agree on a psychologist, the [father] shall provide the names of 3 proposed psychologists, and the [mother] shall choose one.
(Emphasis added)
The father’s lawyers wrote to the mother on 5 April 2023, giving her a choice of three psychologists. The mother wrote back on 14 April 2023 saying:
Due to the considerable financial constraints on myself I am unable to afford an expensive psychologist.
I have contacted [a counselling provider] regarding counselling for myself and [the father] and inquired about the fees and they are able to provide counselling for a reasonable price.
(Father’s Affidavit filed 9 February 2024, Annexure MRH-3)
The father’s solicitors replied, advising he was unwilling to attend counselling with the service proposed by the mother and again requested her to choose a psychologist from the list of three earlier provided. The mother did not thereafter engage with the request.
In relation to Count 1, the primary judge said this:
38.On the [father’s] own evidence in relation to [Count 1], the [mother] made reasonable attempts to comply with the Orders, and it is not established that she made none…
39.The terms of s.70NAC of the Act are clear in prescribing the circumstances in which a person contravenes the Orders. The evidence on the [father’s] case is insufficient to prove on the balance of probabilities that the [mother’s] either intentionally failed to comply with the Orders, or that she made no reasonable attempt to comply with the Orders. Accordingly, he has not established that she has contravened them.
The primary judge thereby fell into error because his Honour conflated the different burdens of proof borne by the parties.
The father bore the onus of proving the mother’s contravention of the order, which burden was discharged by proving she either intentionally failed to comply with the order or made no reasonable attempt to do so.
Section 70NAC(1) of the Act defines an act of contravention in this way:
(1)A person contravenes a child-related order only if:
(a) the person is a person (other than a child) to whom the order applies and:
(i) the personal intentionally fails to comply with the order; or
(ii)the person makes no reasonable attempts to comply with the order…
If the father discharged his burden by proving the mother’s contravention as defined and, if she then sought to assert her contravention was reasonably excused (s 70NAD(1) and s 70NAD(2)), she bore the burden of proving the reasonable excuse (s 70NADA).
His Honour confused the father’s initial obligation to prove the lack of any reasonable attempt by the mother to comply with the orders (s 70NAC(1)(a)(ii)) with the mother’s separate subsequent obligation to prove a reasonable excuse for breaching the order (s 70NADA). There is a material difference between, on the one hand, no reasonable attempt to comply with an order and, on the other, a reasonable excuse for not having complied with it.
It was not open for the primary judge to find the father failed to prove the mother made no reasonable attempt to comply with Order 20 (at [38]–[39]). On the evidence, she failed to choose one psychologist from the list of three provided by him, as Order 20 required of her. She either intentionally failed to comply with the order or made no reasonable attempt to do so. The contravention was therefore proven.
The mother advanced an unverified reason why she did not comply with the order during her cross-examination of the father – she asserted she could not afford any of the private psychologists offered by the father and wanted to instead use a public psychologist. But that could only ever be a “reasonable excuse” for the contravention, which the mother bore the burden of proving. She was not called upon to do so because the primary judge wrongly dismissed Count 1 on account of the father failing to discharge his initial burden of proving the contravention. The error was patent from the mother’s admission, made before the hearing started, that she conceded the contravention but asserted a reasonable excuse for it.
These grounds succeed.
Grounds 3 and 4
These grounds pertain to Count 2, which alleged the mother breached Order 2(h) in early July 2023 by failing to inform the father of the medical procedure due to be performed upon the elder child.
Order 2(h) provides:
2.That the parties have equal shared parental responsibility for the children of the relationship…save that:
…
(h)That both parties inform the other as soon as practicable of the details of any injury or medical condition relating to the children requiring professional care and keep the other informed as to such matters including the name and address of any doctor or allied health professional involved in the care of either child.
The father gave evidence the elder child sent him text messages in early July 2023 advising of her impending medical procedure, saying:
I’m having a [medical procedure] tomorrow
I have a lump on my [upper body part]
It’s a small [medical procedure]
(Father’s Affidavit filed 9 February 2024, Annexure MRH-8)
The father had no former knowledge of the medical procedure.
His lawyers wrote to the mother on 26 July 2023 alleging he had sent her an email about two weeks beforehand, on 13 July 2023, requesting information about the elder child’s medical procedure to which she failed to respond. That evidence was unchallenged.
In cross-examination, the mother put to the father that the elder child had the lump on her upper body part for nearly two years and it was up to him to ask her about it, but he said he was never aware of it. During the father’s cross-examination, in discourse with the primary judge, the mother admitted the father had been unaware of the medical procedure. The mother also suggested to the father she had instructed the elder child to tell him of the medical procedure, but she had resisted, to which proposition the father could obviously not respond because it was beyond his knowledge. He found out about the medical procedure from the elder child the night before it occurred and he then quizzed the mother about it, but she did not respond. He insisted he knew nothing about the nature of the medical procedure, why it was needed, or the identity of the doctor performing the procedure.
In relation to Count 2, the primary judge said this:
38.On the [father’s] own evidence in relation to [Count 2], the [mother] made reasonable attempts to comply with the Orders, and it is not established that she made none…
39.The terms of s.70NAC of the Act are clear in prescribing the circumstances in which a person contravenes the Orders. The evidence on the [father’s] case is insufficient to prove on the balance of probabilities that the [mother] either intentionally failed to comply with the Orders, or that she made no reasonable attempt to comply with the Orders. Accordingly, he has not established that she has contravened them.
The same mistake was made as in respect of Count 1.
It was not open for the primary judge to find the father failed to prove the mother made no reasonable attempt to comply with Order 2(h) (at [38]–[39]). On the evidence, she failed to inform the father as soon as practical of the elder child’s medical condition requiring medical procedure. She also failed to tell the father the name and address of the treating doctor.
The mother advanced a reason why she did not comply with the order – she asserted she instructed the elder child to tell the father of the upcoming medical procedure – but she did not give any evidence to verify it. It was merely an assertion she put to the father in cross-examination. The count was dismissed before she was put to her election of whether she would adduce any evidence of “reasonable excuse” in her defence. Significantly, she did not plead reasonable excuse when Count 2 was put to her at the commencement of the hearing. She simply denied the alleged contravention.
These grounds succeed.
Grounds 5, 6, 7 and 8
Grounds 5 and 6 pertain to Count 7, whereas Grounds 7 and 8 pertain to Count 8.
Both counts allege the mother breached Order 18 by failing to promptly advise the father of the school absences of the younger child in June 2023 (Count 7) and of the elder child in April 2023 (Count 8).
Order 18 provides:
That each parent advise the other within 24 hours of all school absences or late attendances occurring during the time the children spend in their care, together with an explanation for the absence or late attendance.
The father gave evidence the mother failed to tell him of the two relevant school absences and he only later learned of them through reading the children’s school reports.
During cross-examination, the father agreed he had access to the Compass app, which alerts him when the children are absent from school. However, he asserted the app does not reveal the reason for the school absence, which information Order 18 requires the mother to divulge to him.
In relation to Counts 7 and 8, the primary judge said this:
38.…In relation to [Counts 7 and 8], the [father] did not deny the suggestion put to him that the [mother] believed his use of Compass meant that information was exchanged. It is, in my view, not to the point that the [mother] could have done other things or could have provided information which the [father] regarded as sufficient. That the [mother] could have done other things does not demonstrate that she has made no reasonable attempt to comply with the orders.
39.The terms of s.70NAC of the Act are clear in prescribing the circumstances in which a person contravenes the Orders. The evidence on the [father’s] case is insufficient to prove on the balance of probabilities that the [mother] either intentionally failed to comply with the Orders, or that she made no reasonable attempt to comply with the Orders. Accordingly, he has not established that she has contravened them.
The same mistake was made as in respect of Counts 1 and 2.
It was not open for the primary judge to find the father failed to prove the mother made no reasonable attempt to comply with Order 18 (at [38]–[39]). On the evidence, she failed to inform the father within 24 hours of the children’s two school absences. Nor did she give him an explanation for the two absences.
The father did not admit, because he was not asked, that he had access to the Compass app at the time of the two relevant school absences in April 2023 and June 2023. No finding was made rejecting the father’s evidence of his ignorance of the two school absences until he read about them much later in the children’s school reports. But even if the father did have access to the Compass app at the time of the children’s absences, learning of their school absences via the app was neither reasonable nor sufficient compliance by the mother with Order 18, nor a reasonable excuse for her not complying with the order. Again, the mother did not plead “reasonable excuse” when Counts 7 and 8 were put to her at the commencement of the hearing. She simply denied the alleged contraventions.
These grounds succeed.
Grounds 9, 10 and 11
These grounds pertain to Count 10, which alleged the mother breached Order 19 by failing to provide the father with the younger child’s passport within seven days of his request for its provision in December 2023 to enable him to obtain a visa for the younger child to travel to Country B with him in January 2024.
Order 19 provides:
That the parties at their joint expense do all acts and things and pay all such fees as may be required to keep the passports of the children current and provide them to the other party upon request within 7 days to facilitate travel and obtaining of Visas.
The father gave evidence of communicating with the mother via AppClose for a month between 12 December 2023 and 8 January 2024, haggling over the production of the younger child’s passport. It is unnecessary to quote excerpts of the communication. It is enough to observe the mother refused to provide the passport, though she did send the father a screenshot of the passport identification page. He alleged it was necessary to have custody of the passport because the visa needed to be stamped upon it.
The primary judge intervened in the father’s cross-examination and extracted a concession from him that Count 10 relied upon Order 19 being construed in a way requiring the mother’s production of the “physical passport” and that her provision of identification details was not enough. His Honour invited the father to explain why the provision of only the identification details was not a “reasonable attempt to comply” with Order 19 by the mother, but the father maintained the order required production of the passport to enable the visa to be obtained.
The father was right. Orders are construed objectively (Repatriation Commission v Nation (1995) 57 FCR 25 at 33–34; Lim v Comcare (2019) 165 ALD 217 at [40]–[41]) and the only reasonable construction of Order 19 is that it required the mother to surrender to the father the younger child’s passport within seven days of his request when it was needed to obtain a visa enabling him to travel to Country B with the father.
In relation to Count 10, the primary judge said this:
38.On the [father’s] own evidence in relation to [Count 10], the [mother] made reasonable attempts to comply with the Orders, and it is not established that she made none…
39.The terms of s.70NAC of the Act are clear in prescribing the circumstances in which a person contravenes the Orders. The evidence on the [father’s] case is insufficient to prove on the balance of probabilities that the [mother] either intentionally failed to comply with the Orders, or that she made no reasonable attempt to comply with the Orders. Accordingly, he has not established that she has contravened them.
The same mistake was made as in respect of Counts 1, 2, 7 and 8.
It was not open for the primary judge to find the father failed to prove the mother made no reasonable attempt to comply with Order 19 (at [38]–[39]). On the evidence, she failed to provide the younger child’s passport to the father within seven days of his request when it was needed to procure a visa. Again, the mother did not plead “reasonable excuse” when Count 10 was put to her at the commencement of the hearing. She only denied the alleged contravention.
These grounds succeed.
Additional legal error
Besides the errors already addressed, another error afflicted the judgment.
The contraventions alleged against the mother were confined to the period between April 2023 and December 2023. The contravention application was heard in June 2024. In the interregnum, on 6 May 2024, the provisions of Pt VII, Div 13A of the Act were substantially amended by the Family Law Amendment Act 2023 (Cth) (“the Amendment Act”).
The Amendment Act did not contain any transitional provision to regulate the timing of the operation of the old Pt VII, Div 13A or the new Pt VII, Div 13A of the Act, but did provide this at item 36(1) to Schedule 2:
The Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Part.
So far as can be discerned, the Minister has not exercised such power to make any such rules by legislative instrument.
That being so, the situation is governed by s 7(2) of the Acts Interpretation Act 1901 (Cth) (“the Acts Interpretation Act”), which relevantly provides:
Effect of repeal or amendment of Act
(1) …
(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.
The operation of that provision is subject to clearly expressed contrary intention (s 2(2) of the Acts Interpretation Act), of which there is none.
It logically follows then that, absent express legislative intention for the new provisions of Pt VII, Div 13A to apply to contraventions alleged to have occurred whilst the old Pt VII, Div 13A was operable, the old provisions must still apply to such historic contraventions.
However, in this instance, while cognisant of the issue, the primary judge expressly applied the new, rather than the old, provisions of Pt VII, Div 13A of the Act (at [14]). That error precludes the contravention proceeding from now being concluded within the appeal, either by hearing the mother’s evidence of “reasonable excuse” in defence of Count 1 or by determining the penalties imposed upon her for the proven contraventions.
Conclusion
The appeal is allowed.
There is no option but to remit the contravention application for re-hearing by another judge, as the father sought, though the remitter is confined to the five counts which the appellant prosecuted at first instance (Counts 1, 2, 7, 8 and 10).
The father’s application for costs against the mother is refused as she was not at fault for the error. However, the father is granted a costs certificate for the appeal under the Federal Proceedings (Costs) Act 1981 (Cth), as he alternatively sought. The appeal succeeded for an error of law.
The mother was self-represented in the appeal and is ineligible for a costs certificate.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 4 November 2024
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