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

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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Oswin and Oswin

Details

AGLC: Oswin and Oswin [2019] FCCA 849
Case: [2019] FCCA 849
Decision Date: 13 February 2019

CaseChat Overview and Summary

In *Oswin and Oswin*, heard before Judge Vasta, the dispute concerned alleged contraventions of court orders made on 25 May 2016. The specific orders in question were Orders 11, 12, 13, and 21.

The court was required to determine whether the respondent mother had contravened these specified orders. Additionally, the court had to consider the appropriate penalty and costs in light of its findings.

Judge Vasta dismissed the alleged contraventions relating to Orders 11, 12, 13, and 21. However, for the contraventions that were found, the respondent mother was sentenced to seven days imprisonment, wholly suspended for a period of two years. The respondent mother was also ordered to pay costs of $6,455.00 in relation to the contravention application. All outstanding applications were listed for further directions on 10 April 2019.

Orders

Orders of the court

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

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.

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.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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