Oswin and Oswin

[2019] FCCA 849

FEDERAL CIRCUIT COURT OF AUSTRALIA

OSWIN & OSWIN [2019] FCCA 849

Catchwords:
FAMILY LAW – Application for contravention – exercise of equal shared parental responsibility – where mother did not inform the father that the child had been enrolled – contravention proved – term of imprisonment wholly suspended.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR OSWIN

Respondent: MS OSWIN

File Number: BRC 11801 of 2014

Judgment of: Judge Vasta

Hearing date: 13 February 2019

Date of Last Submission: 13 February 2019

Delivered at: Brisbane

Delivered on: 13 February 2019

REPRESENTATION

Counsel for the Applicant: Mr D. Carlton

Solicitors for the Applicant: Koolik & Associates Lawyers

The Respondent appearing on her own behalf

AND UPON THE COURT FINDING THAT the Respondent mother has, without reasonable excuse, contravened the Orders made in the Federal Circuit Court of Australia on 25 May 2016 in that:

(A)In contravention of the Order 2 whereby the Respondent did not consult with the Applicant prior to enrolling the child Y born … 2006 at M School and applying for a scholarship.

(B)In contravention of Order of 1 whereby the Respondent enrolled the child Y born … 2006 at P School.

(C)In contravention of the Order 18 whereby the Respondent failed to do all acts and things necessary and sign any documents necessary for a passport to be renewed for the children X born … 2004, Y born … 2006 and Z born … 2008 (“the children”).

ORDERS

1. That the alleged contraventions with respect to Orders 11, 12, 13 and 21 of Orders made on 25 May 2016 are dismissed.

2. That with respect to the above findings of contravention, the Respondent mother be sentenced to seven (7) days imprisonment, wholly suspended for a period of two (2) years.

3. That the Respondent mother pays costs of and incidental to the contravention application filed 13 September 2018 in the fixed sum of $6,455.00.

4. That all outstanding applications be listed for further directions at 9.30am on 10 April 2019 in the Federal Circuit Court of Australia at Brisbane before Judge Jarrett.

IT IS NOTED that publication of this judgment under the pseudonym Oswin & Oswin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 11801 of 2014

MR OSWIN

Applicant

And

MS OSWIN

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 27 May 2016, the parties consented to orders that were subsequently made by a Registrar.  Those orders involved the parental responsibility in regards to three children:  X born … 2004, Y born … 2006 and Z born … 2008 (“the children”). 

2. The Orders were that the parents shall have equal shared parental responsibility in regards to the children. 

3. Order 2 is:

   2. That the parents are to consult with each other about decisions to be made in the exercise of their shared parental responsibility as follows: 

   a. They shall inform the other parent about the decision to be made;

   b. They shall consult with each other on terms that they agree;  and

   c. they shall make a genuine effort to come to a joint decision.

4. Order 12 of those orders was part of the general part of the orders.  That is, dealing with what some may call the incidental aspects of parenting orders.  Order 12 reads that:

   Should either parent be unable to personally care for the children due to work commitments OR for any overnight period then they shall give the other parent first option to care for the children.

5. In the section headed “Overseas Travel”, order 18 reads as follows:

   That each parent shall do all acts and sign all documents necessary for a passport to be issued or renewed for the children, pursuant to section 11 of the Australian Passports Act 2005, within fourteen (14) days of receipt of a written request from the other parent.

6. Order 21 detailed that either party shall be permitted to take the children overseas provided that the travelling parent give 14 days’ notice of the intention, the proposed dates, the destination and other aspects that would allow the other parent to still stay in contact.

7. On 13 September 2018, the father filed an application for contravention.  What is before me are five particularised matters, one of which I have now already found that there is no prima facie case.  Those five matters are these. 

8. Firstly, a breach of order 2, in that the mother, without reasonable excuse, did not consult with the father prior to applying to enrol the child, Y at M School and applying for a scholarship.  To this charge, the mother said that she did contravene the Order, but had a reasonable excuse.

9. The second alleged contravention was a contravention of order 1.  That is, that the mother without reasonable excuse, unilaterally enrolled the child, Y at P School.

10. The third alleged contravention is a contravention of order 12.  That is, that the mother, without reasonable excuse, did not give the father first option to care for the children when she was unavailable due to work commitments.  That allegation involves the mother attending a school camp as part of her duties as a public servant.

11. The fourth alleged contravention was a contravention of order 18 in that on 4 September 2017 the mother, without reasonable excuse, refused to do all acts and things and sign documents necessary for a passport to be renewed for the children within the 14 days of the request being made to her.

12. The fifth contravention was a contravention of order 21, and that is that in December 2017 the mother, without reasonable excuse, did not inform the father of her intention to travel overseas with the child X, and she did not inform the father before or after the trip; did not provide a copy of the itinerary; did not provide return airfares and did not arrange for the child to FaceTime the father during the trip. 

13. Because contravention proceedings must, in effect, be very strictly proved because of the quasi criminal nature of them, in a fairly technical way, I had to rule that there was no prima facie case regarding the fifth contravention because this allegation had been particularised as occurring in December 2017.  That is, the allegation was that the mother went overseas with the child in early December 2017 without telling the father. 

14. It has arisen that the records of the Department of Immigration show that the mother went overseas with the child in June 2017, but did not travel in December 2017.  Therefore, I have found that there is no prima facie case and that allegation is dismissed because it has not been established.

15. With regards to the other four, the father gave evidence that he has learned that the mother had applied to enrol, or had actually enrolled, the child, Y in three high schools without his knowledge or consent. 

16. The first was that she applied for Y to attend M School and applied for him to obtain a partial scholarship.  The father says that he was not informed of this; that it was Y himself who told him that this had occurred and not the mother. 

17. Y informed the father on the phone in March 2018 that the mother had applied for a school scholarship for him to attend M School.  This was the first that the father had heard of it.  The father said that he texted the mother following this and she replied, and informed him that, she had not enrolled the child anywhere.  The message sent simply read:

    I haven’t enrolled Y anywhere just making sure he has options that we can discuss later in the year.  I have no intention of sending him anywhere without discussing it with you first…

18. On 13 June 2018, the mother took the child to an enrolment interview at M School.  The father was not told about the interview at all.  The father recalls dropping Y to school that morning and walking him to the morning assembly, that the mother came towards them, pulled the child away and said something to him. 

19. The father spoke a few minutes later to the child and asked, “What was that all about?” and the child replied that he was going to his scholarship interview that afternoon at M School’s.

20. On 19 June 2018, the father, in his phone contact with the child, asked how the interview had gone.  Following that phone call the mother texted the father a copy of the letter of offer that she had received from M School’s.  That letter was dated 15 June 2018 and was only addressed to the mother. 

21. The father said that this was the first information he had received from the mother in relation to the school.  He said that the mother had demanded that he, the father, provide a response within one week as that was the final date for acceptance.

22. The father responded to the text message and said that he had received no information at all about the school and what would happen as far as school fees, etcetera. The mother responded saying that she had no other information regarding the school, and for the father to look on the website or to contact them directly. 

23. She also told the father that she would not be contributing to any of the costs of private education.  She then said, “I will also leave the P School application for you tomorrow”.  The father said that this was the first time that P School had ever been mentioned to him by the mother in regards to the child, Y. 

24. The mother accepted that chronology and series of events.  It, therefore, made sense for her to say that she had contravened order 2 because there had been no discussion or consultation at all. 

25. As for her excuse, she said that she had done the same thing for the older girl, X, some two years before.  The mother pointed to an email that she had sent on 24 April 2016, annexed to her affidavit filed 5 February 2019, to the father which had the following in it regarding the child, X.  It read:

    …As requested, I am providing you with information regarding high schools for X.  X currently has her name down at two schools these are T School, and P School.  Extensive information on both schools is available on their respective websites.  Once a decision on which school she attends is made all paperwork will need to be completed in a timely fashion…

26. And then there was more in relation to some of the other children.  The mother says that she did exactly the same thing in regards to Y as she had done with X.  The father disagrees with that.  I accept what the father says in this regard. 

27. With regard to X, there was simply a statement that her name was down at two schools.  She had certainly not been enrolled at any school other than, simply, that her name was there.  There was no suggestion that she had attended any form of interview.  The father was kept informed and the father and the mother ended up discussing the matter before deciding that P School was the proper school for X. 

28. This did not happen in this case.  With regard to contravention number 1, I find that the mother did contravene the order and had no reasonable excuse.  Having regard to s.70MAE, I am not satisfied that the mother ought to be excused in respect of the contravention, having regard to all of the evidence.  I am satisfied that she understood the nature of the order given what she had done previously with the child X.  Therefore, contravention 1 is proved.

29. With regard to contravention 2, the father says that the first time that the mother had mentioned P School to him regarding the child, Y was in that text message that I have previously spoken of.  Following this, the father was provided with a copy of a letter sent from P School to the mother only.  That was dated 31 May 2018 which stated:

    Dear Ms Oswin

    I am pleased to confirm acceptance of your son Y for Year 7 in 2019 at our Suburb H campus…

30. The father says that the mother did not inform him that the child had been enrolled at P School and he had not been provided with a copy of that letter until quite some time after it had been sent. 

31. The mother, again, used the excuse that this is what she did for X.  That is, as I have said, not correct.  I accept what the father has said. 

32. Therefore, the mother has not properly exercised equal shared parental responsibility, in that the enrolment for Y was done unilaterally. 

33. I do not accept that she has a reasonable excuse.  I am not satisfied that she ought to be excused in respect of the contravention, and I accept that she did know the obligations that were imposed upon her.  Therefore, the second contravention I find as proved.

34. With regard to the third contravention, the mother, as part of her duties as a public servant, is sometimes needed to go on school camps.  On 27 July 2018, a letter was sent to all the parents and caregivers of children in the year 5 class of which the mother is employed.  The camp was scheduled for Wednesday, 29 August to Friday, 31 August 2018. 

35. The details were given of the camp as to the bus arriving at 7.40 am and departing U School at about 8.00 am to try to arrive at Suburb V by 11.00am on Wednesday, 29 August; and that the bus would be back at school approximately 2.30 to 3.00 pm on Friday, 31 August.  This meant that the mother would be away overnight on the nights of Wednesday, 29 August and Thursday, 30 August 2018.

36. The father was not notified about this event occurring.  About 20 August 2018, the two boys told the father words to the effect that the grandmother was coming up next week and that she was going to look after them.  The father asked why that was happening and the boys informed him that the mother was going on the year 5 school camp. 

37. This was the first time the father knew about the matter.  The father had his solicitor write to the mother by email confirming that, pursuant to the orders, the father would be caring for the children, or at least be given first option for caring for the children, during those two nights.

38. The mother responded this way on Tuesday, 21 August 2018 to the solicitors:

    … I am yet to confirm my attendance at the school camp.  Once confirmation is made I will advise you of the dates. 

    Please confirm with your client that if I do attend camp that he will personally be in attendance to care for Y and Z on the aforementioned dates.  Please advise me of same.

39. The father was somewhat confused. He went to the school, spoke to a woman at the office and was given the handout that was given to the parents and carers about the camp on 27 July, and noted that the matter is supposedly signed by the three staff members, one of whom is the mother.

40. Because the father had this handout on 22 August, the next day, the solicitor forwarded a copy of that notice to the mother and solicitor pointed out that the notice was from the mother and it clearly set out the camp details including the dates.

41. The mother replied on Monday, 27 August.  That is, two days before she was to depart, saying to the solicitors:

    …Would you kindly advise your client that I will in fact be attending the grade 5 camp. I have only today been provided with the details of the camp. 

    Would you please confirm that your client will be available to care for the boys from Wednesday after school until Friday before school this week as I have arrangements in place if he is personally not able to care for the boys…

42. And then asked:

    … Would you also ask that your client cease making inquiries at my place of work about matters that relate to my employment.

43. The solicitor ended up responding and saying that the father would be caring for the children during that time.  The mother said in her evidence that she did not contravene this Order.  She said that she had been busy and she simply had not gotten around to contacting the father. 

44. It was put to the mother that she had her own mother coming from interstate and her plan had been, in effect, to have the maternal grandmother look after the children and, therefore, deny the father that opportunity.

45. The mother denied that suggestion and simply said that she had always intended the father to look after the children, but her hectic schedule had not allowed her to inform him until two days before.  She said that she has not contravened the Order because she did give him that option.

46. It seems to me that there is no evidence that the mother did not give the father the first option. Whilst the timings and everything else is very suspicious, and would ordinarily lead the father to coming to the conclusion that he had, there is no evidence that the father was not offered the option first. Therefore, I find that the contravention has not been established.

47. With regard to the fourth contravention, that is a contravention where the father had sent to the mother, from the solicitors, a letter to the mother; this was a letter sent to the mother on 26 July 2018.  The letter had a number of matters but under the heading “Passport Application” the following is written:

    … Please find enclosed a Passport Application for each child, together with some spare applications in the event they are required.  We ask your client kindly complete her section of the document and thereafter forward same to our office so that our client may complete hi [sic] section and lodge same. 

48. The mother did not comply with that request within 14 days.  The mother accepts that she did not do so.  She said that the forms were blank and that she did not understand what she was to do with a blank document and, therefore, simply did nothing about them.  The solicitors wrote to the mother on 12 September 2018 and said:

    Dear Ms Oswin,

    We refer to the above matter and note your refusal to complete the children’s passport applications.  Given you hold the children’s passports at present, our client does not have all the information necessary to complete the documents (including passport numbers, expiry dates etc).  Accordingly, so that our client may complete the forms as you have requested, please forward all three (3) children’s passports to our office within seven (7) days.  Our client will thereafter return the completed forms and passports to you. 

    Given your blatant refusal to complete the forms yourself, we trust there will be no issue with the above.

49. On 15 September the mother wrote saying:

    Dear Ms W,

    I refer to your letter dated 12/9/2018.

    I have attached copies of the expired passports for your client to complete the new children passports application.  I note it is not necessary to provide these details in the new passport application for the children but as a matter of courtesy I have provided your client with copies of same. 

    I also note that on no occasion has your client contacted me personally either via email or text, in regards to renewing the children’s passports. 

    I trust that now I have provided your client with all the details he has requested that he will be able to complete the applications and forward them to me for submission.

    Kind Regards

    Ms Oswin

50. I note that certainly for the child, Z, his passport was to expire on 3 August 2018, where Y’s was to expire on 5 April 2018.  The original request sent would have meant that Z’s passport would simply need to be renewed, whereas Y’s would have to have been an application for a new passport.  Because the mother did not comply with the request, Z’s passport then needed to be a new passport. 

51. The mother’s excuse, that she simply was shocked or surprised that she was given blank applications, is not a reasonable excuse at all.  I am not satisfied that she ought to be excused in respect of this contravention, and I am satisfied that she readily understood her obligations with regard to that order.  Therefore, I find that the mother has contravened that order and has no reasonable excuse.

52. Having regard to the seriousness of all these matters, I am of the view that I can only impose one penalty.  Having listened to all the submissions, and noting that the father has only submitted that a bond be imposed, I am of the view that such a sentence is not appropriate. I note that the contravention is a serious one, but the consequences of the contravention have not been serious. 

53. The children are still seeing their father; the children are still enrolled at proper schools and are getting a proper education. That means that the children have not suffered too much. But if this were to continue, I can see great suffering not in the short term but certainly in the long term of the children.

1. Notwithstanding I find that the third contravention of which I have convicted the Applicant is not as serious as the first two, I am going to impose one sentence for all three matters. 

2. I sentence you to imprisonment for seven days.  I am going to suspend that period of imprisonment for a period of two years.  If there is any further contravention of these orders in the next two years, then not only will you have to serve whatever penalty you get for contravening those orders, you are going to be going to jail for seven days.  That is how serious I find these matters. 

3. You are very lucky that I am suspending that period and it is only because of the very generous submissions of counsel for the father, that your husband is not seeking a very punitive penalty. 

4. But I am telling you, do not breach these Orders.  You consult with him on matters of which you have equal shared parental responsibility because if you do not, the people who do suffer are your children, and as much as you want to delude yourself that you are acting in the best interests, you are not acting in the best interests of your children at all.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:       18 April 2019