FAMILY COURT OF AUSTRALIA
| OSWIN & OSWIN | [2019] FamCAFC 164 |
| FAMILY LAW – APPEAL – CONTRAVENTION – Where the primary judge found the mother had contravened parenting orders providing for equal shared parental responsibility without reasonable excuse – Where this was the first contravention application with respect to parenting orders made some three years earlier – Where the father sought the imposition of a bond – Where the primary judge imposed a sentence of seven days imprisonment suspended for two years – Where it must follow that the primary judge was obliged to apply the criminal standard of proof – Where the primary judge failed to fulfil the mandatory statutory requirement to give reasons for finding that no other penalty was appropriate – Where investigation of available options for schooling did not constitute a unilateral “decision” about a major long-term issue – Where the mother had declined to sign passport forms which the father had not completed or signed – Where, on the whole of the evidence, it was not reasonably open to the primary judge to find any contravention on the criminal standard or the civil standard of proof – Where the appeal was conceded – Appeal allowed and the findings of contravention and the order for imprisonment set aside – Where the father’s Application-Contravention at first instance is dismissed – Costs certificates ordered. FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Where the mother was self-represented with no relevant legal training – Where the primary judge failed to sufficiently explain to the mother the relevant law to be applied and procedure – Where neither party was afforded any opportunity to make submissions as to whether the application was to proceed under Subdivision E or under Subdivision F of Division 13A of Part VII of the Family Law Act 1975 (Cth) – Where the failure of the primary judge to provide that explanation to the mother and to invite her submissions upon the point was a fundamental failure to provide procedural fairness to the mother – Where the primary judge was not attentive to the fundamental distinction between Subdivision E and Subdivision F of Division 13A – Where the primary judge impermissibly intervened in cross-examination – Where the primary judge’s comments bespeak pre-judgment or predetermination – Where such interventions amount to a denial of procedural fairness – Where the primary judge did not afford the mother the opportunity to be heard as to sentence. |
| Family Law Act 1975 (Cth) Div 13A, ss 61B, 61C, 61D, 65DAC, 65DAE, 70NAA, 70NAC, 70NAE, 70NEC, 70NFB, 70NFG, 117 Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9 |
| Caballes & Tallant (2014) FLC 93-596; [2014] FamCAFC 112 |
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- AGLC
- Oswin & Oswin [2019] FamCAFC 164
- Case
- [2019] FamCAFC 164
- Decision Date
CaseChat Overview and Summary
The central legal issues were whether the primary judge correctly applied the criminal standard of proof in finding a contravention and whether the mother was afforded procedural fairness. The mother argued that the primary judge failed to provide adequate reasons for the sentence, did not explain relevant legal distinctions to her, and improperly intervened in the proceedings. The court needed to determine if these procedural errors warranted setting aside the findings and orders.
The court found that the primary judge did not meet the mandatory requirement to provide reasons for the sentence and failed to apply the criminal standard of proof. The judge's comments suggested prejudgment, which amounted to a denial of procedural fairness. The court also noted that the mother had not acted unilaterally regarding schooling, contrary to the primary judge's findings. Consequently, the appeal was allowed, and the findings and orders were set aside. The father's contravention application was dismissed, and costs certificates were granted to both parties.
The court further ordered the father to repay the mother for moneys paid in compliance with the previous orders. Additionally, the court granted costs certificates to both parties, enabling the Attorney-General to authorise payments for their appeal costs.
Orders
Orders of the court
1.
That the appeal be allowed.
2.
That the findings of contravention and the Orders made by Judge Vasta on 13 February 2019 be set aside.
3.
That within fourteen (14) days of the date of this Order, the respondent father shall pay to the appellant mother the sum of $6,455 being return of the moneys paid to him by the appellant mother in compliance with Order 3 of the Orders made on 13 February 2019 by Judge Vasta.
4.
That the Application-Contravention filed in the Federal Circuit Court of Australia on 13 September 2018 be dismissed.
5.
That there be no order as to costs of the appeal pursuant to s 117 of the Family Law Act 1975 (Cth).
6.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of 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 the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal.
7.
The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 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 the respondent father in respect of the costs incurred by the respondent father in relation to the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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