Oswin & Oswin
[2019] FamCAFC 164
•26 September 2019
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 Oxford English Dictionary (3rd ed, 2010) |
| APPELLANT: | Ms Oswin |
| RESPONDENT: | Mr Oswin |
| FILE NUMBER: | BRC | 11801 | of | 2014 |
| APPEAL NUMBER: | NOA | 20 | of | 2019 |
| DATE DELIVERED: | 26 September 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent, Watts & Tree JJ |
| HEARING DATE: | 28 August 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 February 2019 |
| LOWER COURT MNC: | [2019] FCCA 849 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Galloway |
| SOLICITOR FOR THE APPELLANT: | Journey Family Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Koolik & Associates Lawyers |
Orders
That the appeal be allowed.
That the findings of contravention and the Orders made by Judge Vasta on 13 February 2019 be set aside.
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.
That the Application-Contravention filed in the Federal Circuit Court of Australia on 13 September 2018 be dismissed.
That there be no order as to costs of the appeal pursuant to s 117 of the Family Law Act 1975 (Cth).
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.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Oswin & Oswin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 20 of 2019
File Number: BRC 11801 of 2014
| Ms Oswin |
Appellant
And
| Mr Oswin |
Respondent
REASONS FOR JUDGMENT
On 13 February 2019, the primary judge in the Federal Circuit Court of Australia imposed a sentence of seven (7) days imprisonment, suspended for a period of two (2) years, upon Ms Oswin (“the mother”), the mother of three children aged 14 years, 12 years and 10 years respectively. The mother represented herself at the hearing. The imposition of that sentence followed upon the primary judge finding the mother guilty of committing three contraventions, without reasonable excuse, of parenting orders made by consent between the mother and the children’s father, Mr Oswin (“the father”), some three years earlier on 27 May 2016.
Those orders included the following:
1.That the parents shall have equal shared parental responsibility in regards to the children [X] born [2004], [Y] born [2006] and [Z] born [2008].
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.
…
18.That each parent shall do all acts and things 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.
(As per the original)
The primary judge concluded that the mother had, without reasonable excuse, committed three contraventions of the parenting orders and recorded that in the orders made in the following way:
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] [2008] (“the children”).
(As per the original)
The primary judge also ordered that the mother pay the father’s costs of the contravention application fixed in the sum of $6,455.
In her appeal from those contravention findings and from the sentence imposed, the mother contends that the primary judge’s imposition of that sentence was contrary to law; reflects his Honour’s failure to observe and apply mandatory provisions of the Family Law Act 1975 (Cth) (“the Act”); is a sentence which is manifestly excessive and is one not supported by the provision of adequate reasons.
The mother challenges on appeal the three findings of contravention made by the primary judge, essentially on the contention that the subject facts in relation to each are incapable of sustaining a finding of contravention within the meaning of s 70NAC of the Act.
With respect to the costs order imposed by the primary judge, aside from the consequential effect of a successful challenge on appeal to the foundation for that order, the mother challenges that costs order by reason of the primary judge failing to take account of material considerations including those identified in s 117(2A) of the Act. The mother contends that no adequate reasons were provided for the costs order the primary judge made.
A fundamental contention permeating each of the mother’s challenges both as to conviction, as well as to the sentence imposed, is the contention that the primary judge failed to afford the mother, a self-represented litigant, a fair trial and procedural fairness.
We have concluded the appeal should be allowed. For reasons which we shall develop in detail, the primary judge:
·Found that the mother had contravened orders on three occasions when she had not;
·Incorrectly treated the alleged contraventions in the category of a more serious disregard for orders;
·Failed to follow mandatory provisions of the Act;
·Did not explain the applicable standard of proof;
·Led the mother to plea to the charges in a way which denied her procedural fairness;
·Failed to explain to the mother the meaning and effect of the relevantly applicable law;
·Allowed the father to rely upon inadmissible evidence without telling the mother she had the right to object to it;
·Failed to invite the mother to make submissions on whether the father had established a prima facie case;
·
Inappropriately interfered with the mother’s oral evidence and her
cross-examination;
·Led the father to change his evidence;
·Made disparaging remarks about the mother which had no basis in the evidence before his Honour;
·Prejudged what sentence should be imposed upon the mother;
·Failed to allow the mother to make any submission about penalty and the proposed order for imprisonment;
·Imposed a sentence upon the mother which was plainly excessive; and
·Failed to give adequate reasons.
The appeal is conceded
In the contravention proceedings the father had sought, by way of sanction, an order that the mother be required to enter into a bond pursuant to s 70NEC of the Act for a period of two (2) years requiring the mother to comply fully with the orders. The imposition by the primary judge of a sentence of imprisonment of the mother was not only not a sanction sought by the father, but was contrary to the father’s position throughout the proceedings including in final submissions made by his counsel.
For his part, the father concedes the appeal. Indeed, he and the mother joined in providing written submissions on appeal including the submission that the determination and orders of the primary judge “are affected by manifest, unrectifiable errors. The outcome is unjust, contrary to law and must be set aside.”
In circumstances where both parties join in seeking that the judgment and orders of the primary judge be set aside on appeal, it is necessary that appealable error be identified. The need for this Court to be satisfied of such error is heightened by both the fact that costs certificates[1] are sought by the parties, and that the subject matter of the proceedings was a contravention application, and an order was made for imprisonment, thus taking the matter beyond a purely inter partes dispute.[2]
[1] Pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
[2]Kendling and Anor & Kendling (2008) FLC 93-384 at [73] (“Kendling”).
Challenges on appeal
There are numerous grounds of appeal. The errors of the primary judge contended for fall into several categories. In summary, it is contended that the primary judge’s conduct of the proceedings impeded a fair trial and denied the mother procedural fairness; that substantial errors of law on the part of the primary judge, including as to the proper law and principles to be applied, caused the proceedings to miscarry; and that the primary judge failed to take into account material considerations. Further, that the primary judge was plainly wrong in finding that the subject contraventions were established. Specifically with respect to sentence, it is further contended that it was unreasonable, manifestly excessive and plainly unjust for the primary judge to have imposed a sentence of imprisonment, even if the subject contraventions were capable of being established. Overlaying these categories of asserted error is the contention that the primary judge failed to provide adequate reasons for judgment. It is convenient to deal with these categories of errors, rather than individual grounds of appeal, given that the joint submissions of the parties addressed the appeal in this manner.
For the reasons which follow, we are satisfied that each of these categories of error are established. We are also satisfied that the orders sought by both parties on appeal ought be made.
The contravention application
A number of the parenting orders were the subject of contraventions alleged in the father’s application which were not ultimately pursued and/or established. For present purposes, it is only necessary to refer to those three paragraphs of the parenting orders, and the three counts, which were the subject of positive findings and the sanction imposed by the primary judge, and thus the subject of this appeal.
As already noted, Order 1 of the subject parenting orders provided for the parties to have equal shared parental responsibility for the children. Order 2 obliged the parents to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility. Order 18 related to the obtaining of passports for the children.
The subject counts of contravention alleged in the father’s application, with respect to those orders, were in summary, that the mother contravened:
a)Order 2, on 20 March 2018, because the mother did not consult with the father prior to applying to enrol the child Y at M school;
b)Order 1, on 31 May 2018, because the mother unilaterally enrolled Y at P school; and
c)Order 18, on 4 September 2018, because the mother refused to do all acts and things and sign any documents necessary for passports to be renewed for the children.
As will be further discussed, the gravamen of the mother’s position with respect to counts (a) and (b) above is, that the acts, enquiries and preparations the mother undertook with respect to the child Y’s enrolment, were preparatory and provisional and designed only to ascertain what schooling options might be available for the parties to ultimately choose (jointly) for their child. In short, that such conduct did not constitute any contravention of the subject orders. The gravamen of the mother’s position concerning count (c) is that she was not obliged by the order to sign passport applications submitted to her in blank form, and she pursued the father to submit appropriately completed applications. Again, on the mother’s contention that conduct could not constitute a contravention of the subject order.
Imposition of a sentence of imprisonment
It is convenient to deal with this topic before dealing with the challenges to the findings as to the contraventions being established for two main reasons. First, as will be explained, it must follow from the primary judge’s imposition of a term of imprisonment that the primary judge was obliged to apply the criminal standard of proof to all relevant aspects concerning the contravention application. That has obvious consequences as regards whether the subject contraventions alleged could be established to that standard. Second, as will also be discussed, the primary judge’s approach to sentencing the mother is emblematic of his Honour’s failures to afford the mother procedural fairness and a fair trial.
Standard of proof
Before an order for imprisonment can be made in contravention proceedings under Division 13A of Part VII of the Act the Court must be satisfied beyond reasonable doubt of:[3]
·All the factual matters that relate to the finding of contravention;
·That the contravention is a “more serious contravention” to which the more serious and more punitive powers contained in Subdivision F of Division 13A apply; and
·The inappropriateness of other available sanctions.
[3] See Dobbs & Brayson (2007) FLC 93-346.
As discussed by the Full Court in Dobbs & Brayson (2007) FLC 93-346, the scheme of Division 13A is outlined in s 70NAA of the Act which highlights that a court’s power to make certain orders depends upon whether a contravention is alleged but not established; whether a contravention is made out but there is a reasonable excuse for the contravention or, as the primary judge here found, that there was a contravention without a reasonable excuse. In the case of the latter, Subdivision E applies for less serious contraventions and provides the various powers for dealing with contraventions in that category. Those powers do not include imposing a sanction of imprisonment. Subdivision F and the more serious penalties, including imprisonment, provided for in that Subdivision, are reserved for more serious contraventions.
It can thus be seen that the scheme of Division 13A is to progress from lesser to greater seriousness or punitiveness, with a correlative progression from the usual civil standard of proof to the criminal standard.
Section 70NFG(2) of the Act provides that a court “must not sentence a person to imprisonment … unless the court is satisfied that, in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention under any of the other paragraphs of subsection 70NFB(2)”. Section 70 NFG(3) then provides:
(3)If a court sentences a person to imprisonment under paragraph 70NFB(2)(e), the court must:
(a)state the reasons why it is satisfied as mentioned in subsection (2); and
(b)cause those reasons to be entered in the records of the court.
Whilst it is to be noted that subsection NFG(4) provides that “[t]he failure of a court to comply with subsection (3) does not invalidate a sentence”, that does not carry the consequence that the failure to comply with the subsection cannot constitute appealable error.
Plainly enough, whether alleged contraventions are to be treated as less or more serious involves an exercise of a trial judge’s discretion. In turn, the proper exercise of that discretion entails each party being afforded the opportunity to be heard.
The parties were not afforded any opportunity by the primary judge to make submissions as to whether the application was to proceed under Subdivision E for less serious contraventions or under Subdivision F for more serious contraventions. That difference was never explained to the mother. 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.
Nothing in the transcript of the proceedings, nor in the primary judge’s reasons for judgment, evidences that the primary judge explained to the mother or was attentive to the fundamental distinction between Subdivision E and Subdivision F of Division 13A of the Act, or the centrally important consequence of that distinction in terms of the standard of proof to be applied. Indeed, the primary judge’s reasons for judgment suggest the opposite. None of the primary judge’s findings as recorded in the reasons for judgment are expressed to be reached upon satisfaction beyond reasonable doubt.
As was made clear by the Full Court in Caballes & Tallant (2014) FLC 93-596 (“Caballes”) it is fundamental that self-represented parties to a contravention application receive sufficient information from the judge about the procedures to be followed and the law which is to be applied. We will address this aspect further later in these reasons.
In this context, it bears emphasis that the mother, served with an application accompanied by an affidavit foreshadowing that the sanction sought by the father for her alleged contraventions of orders was the imposition of a bond, elected to represent herself in the proceedings. She has no relevant legal training or experience. This was the first contravention application she had ever faced. These features heightened the obligation upon the primary judge to ensure that the mother was afforded the reasonable opportunity to understand the law to be applied and the procedures to be followed, and to present her case and submissions in answer to the application.
The obligations upon the primary judge were also heightened by the feature that it was the primary judge’s own notion, rather than that of the applicant father, that a sentence of imprisonment ought reasonably be in contemplation. It bears repeating that the only sanction foreshadowed to the mother by the father’s affidavit supporting the application was the imposition of a bond in the event that the mother was found guilty of the contraventions alleged in the application. As earlier noted, many of the alleged contraventions fell away.
Contrary to the mandatory requirements of s 70NFG(3), the primary judge did not state any reasons for being satisfied that it would not be appropriate to deal with the contraventions as found under any of the other paragraphs of subsection 70NFB(2) providing for penalties other than a sentence of imprisonment. That was plainly an error. The primary judge makes no reference at all to, for example, the imposition of a fine and rejected the father’s submission that a bond be imposed, but his Honour’s reasons do not illuminate the reasoning for a conclusion that such a sanction would not be appropriate beyond the bare assertion that the matters were serious. All that the primary judge records at [52] and [53] of the reasons are as follows:
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.
(Emphasis added)
We have emphasised the passage in [52] where his Honour refers to “[h]aving listened to all the submissions” as we consider the following quoted passages from the transcript demonstrate that his Honour’s statement overstates what actually occurred.
Early in the hearing, even before the mother had been called upon to enter any pleas to the contraventions alleged against her, the primary judge revealed his approach to sentencing in the following exchange:[4]
[4] Transcript 13 February 2019, p.4 line 46 to p.5 line 37.
HIS HONOUR: I’m not too sure if you understand how the contravention works. Okay? What will happen is that [Mr Oswin] will be going into the witness box very soon and he’s going to swear that the contents of his affidavit are true and correct; okay?
[MS OSWIN]: Yes, your Honour.
HIS HONOUR: You have the opportunity to ask him questions about that and put to him things as to what the true state of affairs is; okay?
[MS OSWIN]: Yes.
HIS HONOUR: Then, after that has finished, I will then have an opportunity to decide whether or not there is what we call a prima facie case, that is, that on the face of it when one is looking at it, not taking into account anything that you have said in evidence or in your affidavits, whether or not there is a case for you to answer; okay? If I do that, then it’s up to you. You can either give evidence or say nothing. Now, if you want to rely on your affidavits that means that you have given evidence, okay, and it means that you have to get into the witness box and be cross-examined about that; okay?
[MS OSWIN]: Yes, your Honour.
HIS HONOUR: Then at the end of the day I decide whether or not there has actually been a contravention of the order; okay?
[MS OSWIN]: Thank you, your Honour.
HIS HONOUR: And then, if it is that you have contravened it, you’re going to be punished.
[MS OSWIN]: Thank you, your Honour.
HIS HONOUR: Okay? And [counsel for the father] might let you know what happens to people who I find contravene orders.
[MS OSWIN]: Yes, your Honour.
HIS HONOUR: It’s not good.
It was unnecessarily intimidatory of the mother for the primary judge to have, virtually at the outset of the hearing, purported to enlist counsel for the father in telling the mother about the potential consequences of her being found guilty of contraventions.
At the conclusion of the evidence and having made findings that the mother had contravened Orders 1, 2 and 18, the primary judge purported to invite submissions on penalty. Because they are fundamental to a number of the challenges on appeal we set those exchanges and submissions out in full:[5]
HIS HONOUR: All right. Those are my findings. What do you say with regards to punishment?
[COUNSEL FOR THE FATHER]: Your Honour, I have taken instructions from my client. He is not seeking an - - -
[MS OSWIN]: Sorry, but – but I have to stand up. Sorry.
HIS HONOUR: Not yet.
[COUNSEL FOR THE FATHER]: He is not seeking an overly punitive approach. He is aware of the impact that that has.
HIS HONOUR: I know, but I am sick of people not obeying orders. What the mother has done has been to act in a very cavalier fashion with regard to these orders. She has no regard for how the father should be part of these children’s lives. She has no regard for her obligations under the orders. She does whatever it is that she can to somehow make sure that technically she does not breach the orders, but in regards to orders – contraventions 1 and 2, I find that, you know, that has been a blatant breach of her obligations, and the Court needs to send a message that this is not going to be tolerated.
[COUNSEL FOR THE FATHER]: Your Honour has pre-empted most of my submissions from a practitioner’s point of view. Most assuredly orders of the Court should be considered and upheld. That is axiomatic, but perhaps not for some parties. Nevertheless, my client approaches it from the position that is: she is the children’s mother.
(Emphasis added)
[5] Transcript 13 February 2019, p.36 lines 1–26.
We interpolate here to make two points about the above exchanges. First, it can be seen that the father, by his counsel, was seeking to emphasise the potential effect upon the children of punishment of the mother, who was their primary carer. That is reflected in counsel’s observation that the father was not seeking “an overly punitive approach. He is aware of the impact that that has” and the further reference to the father approaching the matter from the position that the mother “is the children’s mother”. This material consideration was not considered by the primary judge at least so far as finding any reflection in the reasons for judgment is concerned.
The second point we make is that, in McClintock & Levier (2009) FLC 93-401, the Full Court emphasised that the focus of a court in dealing with a contravention application under Division 13A of the Act must be in making orders which will enforce future compliance with its orders. The majority of the Full Court held that for a court to decide to punish a party who has been found to have contravened an order for the purposes of making other like-minded persons comply with orders relevant to them, in other words to make an example of them, would be an error of law. In short, the Full Court emphasised that the focus of the statutory provisions is upon the individual party and orders rather than some general policy of deterrence (per Cronin J at [233]-[235] and Coleman J at [156], [158]-[159]).
Returning to the transcript the following exchanges ensued:[6]
[6] Transcript 13 February 2019, p.36 line 28 to p.37 line 26.
HIS HONOUR: Yes.
[COUNSEL FOR THE FATHER]: He seeks a bond; he seeks a bond in the term of two years. Now, your Honour, I’m content to make submissions in respect of a surety. I think a surety should be - - -
HIS HONOUR: I am not thinking of bonds.
[COUNSEL FOR THE FATHER]: No?
HIS HONOUR: [Counsel for the father], you have been in my court a number of times. What do I say about the only place people go if they transgress my orders? Now, I know this wasn’t one of my orders.
[COUNSEL FOR THE FATHER]: I accept that, your Honour, and I accept the seriousness with which your Honour views - - -
HIS HONOUR: I’m – you know, this is – this is it – and then, you know, to go on and behave this way, there needs to be condign punishment, and what your submissions show to me is the thoroughly decent nature of your client, and it really shows to me the despicable way in which he has been treated
- - -[COUNSEL FOR THE FATHER]: Yes, your Honour - - -
HIS HONOUR: - - - because he is a decent person, and yet the mother just treats him as if he is dirt. She doesn’t care about what he wants to do; it will all be done at her convenience.
[COUNSEL FOR THE FATHER]: Yes, your Honour.
HIS HONOUR: Unless I come in with an appropriate penalty, then really, what is there to stop people from – or from the mother to simply say, “Well, what was the use of that? I’ve got a bond.”
[COUNSEL FOR THE FATHER]: Your Honour, I hear everything your Honour says. Your Honour clearly has the power and capacity to do so.
HIS HONOUR: Yes.
[COUNSEL FOR THE FATHER]: But my instructions are held to that my client seeks a bond.
HIS HONOUR: Yes. No. Thank you.
[COUNSEL FOR THE FATHER]: Your Honour, I should for the record also say that seeking an order in respect of costs.
(Emphasis added)
We interpolate here that from our review of all of the evidence including the transcript of oral evidence we fail to see the basis for the primary judge’s disparaging remarks about the mother treating the father “as if he is dirt” or being uncaring about his views. Notably, as can be seen in the above exchange, counsel for the father repeats the father’s position about his client seeking a bond.
Most fundamentally, the emphasised portions of the statements made by the primary judge, before any submissions at all had been made by the mother, bespeak pre-judgment or predetermination by the primary judge that only a sentence of imprisonment was regarded by his Honour as an appropriate penalty for any “transgression” of orders.
Moving then to the exchanges between the primary judge and the mother, it will be seen that the mother was given no reasonable opportunity to defend herself. No sooner had she commenced submissions about sanction than the primary judge interrupted her, before she had the opportunity to complete a single sentence, in a challenging manner. It can be seen that the primary judge’s approach had the effect of the mother being overborne as regards anything further she may have wished to submit in her defence, concerning sanction. That exchange is as follows:[7]
[7] Transcript 13 February 2019, p.37 line 28 to p.38 line 10.
HIS HONOUR: Yes. All right. What do you want to say for yourself, [Ms Oswin]?
You have heard what I have had to say.
[MS OSWIN]: Yes, your Honour. I tried to act in the best interests of my
- - -HIS HONOUR: You have not at all done that. Don’t give me that rubbish. You have done whatever it is that you can do to frustrate the relationship between the father and the child. How on earth can you say that you were acting in the best interests of your child when you didn’t even tell the father that you were doing this and applying for scholarships or applying to put him at [M school]? Don’t give me that rubbish.
[MS OSWIN]: Yes, your Honour.
HIS HONOUR: That’s what it is. It is pure rubbish. This was an act of spite by you to the father. For whatever perceived grievance you have with him, you have used the children as a pawn.
[MS OSWIN]: Yes, your Honour.
HIS HONOUR: That’s what you’ve done.
[MS OSWIN]: Yes, your Honour.
HIS HONOUR: There is only one place that you’re going, but I’m very mindful of the mercy that your ex-husband has asked me to give to you. Okay?
[MS OSWIN]: Yes, your Honour.
HIS HONOUR: All right.
Given that the facts taken into account on penalty had to be proven beyond reasonable doubt, many of the statements made by the primary judge in exchanges during final submissions are troubling, particularly given that the reasons for judgment were delivered extemporaneously upon the conclusion of those submissions. One example is the primary judge’s statement “I am sick of people not obeying orders” indicating that extraneous considerations were taken into account. More troubling is the primary judge’s statement that the mother “has no regard for how the [father] should be part of these children’s lives” and has “no regard for her obligations under the orders”. Further, the assertion by the primary judge to the mother that she has “done whatever it is that you can do to frustrate the relationship between the [father] and the child”; and his statement that she had “used the children as a pawn.” None of those propositions were put to the mother in cross-examination, nor was the mother afforded any opportunity, let alone a reasonable opportunity to answer those contentions either during her oral evidence or by way of submissions. Moreover, no contravention alleged was based upon any loss of time ordered for the children to spend time with the father. The statement by the primary judge that the mother had done whatever she could to “frustrate the relationship” between the father and child/ren was unsustainable on the evidence, yet that characterisation of the mother would appear to be one matter his Honour informed himself about as relevant to the appropriate penalty to be imposed.
Following the above quoted exchange of the submissions, the primary judge delivered extemporaneous reasons including the following in relation to sentence:
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.
54.Notwithstanding I find that the third contravention of which I have convicted the mother is not as serious as the first two, I am going to impose one sentence for all three matters.
55.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.
56.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.
57.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.
The entirety of the primary judge’s reasons in relation to the finding that imprisonment, and no other penalty was appropriate, is contained in [52] and [53] of the reasons above.
Those reasons are plainly inadequate to explain why it was beyond reasonable doubt that there was no other appropriate sanction to be applied or considered.
The reasons for judgment delivered by the primary judge do not reflect that the primary judge took any account whatsoever of the material considerations specifically raised several times on behalf of the father by his counsel, namely, the potential impact upon the children and the children-parent relationships, of their mother being subjected to a sentence of imprisonment as a consequence of an application brought by the father. Nor did the primary judge have any regard to other relevant considerations: for example, the potential effects upon the mother’s then current employment and her future employability as a teacher’s aide if a sentence of imprisonment was imposed.
The absence of any reference in the reasons for judgment to the objective of parity of sentencing or comparable cases leads to the unavoidable conclusion that the sentence imposed by the primary judge was an entirely arbitrary exercise as distinct from the product of a discretion exercised judicially. For ourselves, we are unaware of any decided cases, or comparable cases, as would dispel the conclusion advanced by both parties on appeal that the outcome determined by the primary judge by way of sentence is unjust.
We are satisfied that the sentence imposed by the primary judge was, to adopt the descriptions used by the Full Court in Kendling by reference to authority, “so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried”.[8] Notwithstanding any other error the primary judge has made, appellate intervention is enlivened by the plainly excessive penalty imposed by the primary judge.[9]
[8]Dinsdale v The Queen (2000) 202 CLR 321 at [59].
[9]Wong v The Queen (2001) 207 CLR 584.
It follows from the preceding discussion that we are satisfied that the primary judge was in error in failing to provide adequate reasons for the imposition of the sanction imposed.
Moreover, nothing within the transcript of the proceedings, nor appearing in the reasons for judgment, indicates that the primary judge explained to the mother or was cognisant that if imprisonment was to be the penalty imposed, it was necessary to apply the criminal standard of proof, beyond reasonable doubt, not only to the facts concerning the establishment of each contravention, but also as to the facts to be taken into consideration concerning the penalty to be imposed. Moreover, that standard of proof had to be applied as to a consideration as to whether some other penalty, other than imprisonment, was appropriate.
The findings of contravention
Orders 1 and 2 of the parenting orders, quoted in full above, are each the subject of a contravention as found. As those orders involve “parental responsibility” as defined in s 61B of the Act, the scope and effect of those orders is the starting point in considering the mother’s conduct found to constitute contraventions of the orders.
As already noted, in summary the facts relied upon by the mother, in the contravention proceedings, in paraphrased form, is that in 2018 she had explored possibilities for the child Y’s high school in 2019 by investigating whether the child was eligible to receive a scholarship at the M school if he attended that school and whether he could be enrolled at that school; and also whether he could be enrolled at the P school. In short, that the mother’s evidence was she had not acted unilaterally to make any final decision about which school the child would actually attend in 2019, which remained a matter for decision by both parents.
Section 61B of the Act contains the definition of parental responsibility as follows:
61B Meaning of parental responsibility
In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
(Emphasis in original)
Section 61C(1) of the Act provides that each of the parents of the child has “parental responsibility for the child”. Subsection (3) provides that this is subject to any court order as to which s 61D provides:
61D Parenting orders and parental responsibility
(1)A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
(2)A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order.
It is to be noted in passing that there was no express provision in the subject orders about school enrolment or applying for scholarships.
Section 65DAC provides for the effect of a parenting order that provides for shared parental responsibility in the following terms:
(1) This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
Note:Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
…
Notably, s 65DAE specifically provides that there is no need to consult on issues that are not major long-term issues. That is, the effect of s 65DAE is that where a parent shares parental responsibility for the child with another person, the order does not require the parent to consult about decisions that are made in relation to the child on issues that are not major long-term issues.
Section 4 of the Act contains the following definition of “major long-term issues”:
major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
(Emphasis in original)
“Decision” as it appears in s 65DAC and s 65DAE is not a term defined in the Act and can thus be taken to have its ordinary dictionary meaning. The Oxford Dictionary defines “decision” as meaning: “[a] conclusion or resolution reached after consideration; the action or process of deciding something or of resolving a question”. Plainly enough, the ordinary dictionary meaning of “decision” reflects a degree of finality about a “conclusion” or “resolution”.
Having regard to the provisions of the Act we have discussed and the meaning of “decision”, we are unable to see how either parent acting to investigate possibilities for schooling could conceivably constitute a contravention of the subject orders. A unilateral decision to explore options about future high school is not a decision about the major long-term issue as to which high school is chosen. As noted, s 65DAC obliges persons sharing parental responsibility to consult with each other to make “decisions” about major long-term issues. Likewise, so did the combined effect of Orders 1 and 2 of the subject orders. On the mother’s case, all that she did was explore options available for discussion by the parties in order for them to reach a “decision”.
That this was what occurred is established by the relevant evidence that emerged in the contravention proceedings.
Before dealing with that evidence, however, it is useful to set out certain statutory provisions in Division 13A of Part VII of the Act.
Section 70NAC defines the meaning of “contravened an order” relevantly to include:
70NAC Meaning of contravened an order
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order—he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
…
(Emphasis in original)
Section 70NAE contains a non-exhaustive definition of the meaning of “reasonable excuse” including the following relevant subsection:
70NAE Meaning of reasonable excuse for contravening an order
(1)The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
….
(Emphasis in original)
Had the mother contravened the order, her reasonable excuse did not fall within the specific subsections referred to in ss 70NAE(1) (for example not understanding the order or to protect the health and safety of a child) but rather within the ordinary meaning of “reasonable excuse”.
The finding of contravention of Order 2 – M school
In his affidavit filed in support of his contravention application the father deposed that, on Tuesday 20 March 2018, the child Y informed him by telephone that the mother had applied for a school music scholarship for Y to attend M school. The father there asserts that the mother “made this decision with absolutely no discussion with me whatsoever”.
Having texted the mother about the topic, the father annexes to his affidavit the mother’s reply made on 26 March 2018. That document, critically, states the mother’s position in the following terms:
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. Not sure why you’re so cross lately but I haven’t done anything wrong.
…
The mother’s position as disclosed in her contemporaneous email dated 26 March 2018 was taken up by the mother when she cross-examined the father in the course of the contravention proceedings in the following exchange:[10]
[MS OSWIN]: [Mr Oswin], did I contact you once [Y] had obtained a scholarship to [M school] to ask you if he would be allowed to take up the scholarship?---Yes.
So I did contact you in relation to enrolling [Y] at [M school]?---After you had enrolled him. After – my apologies, after you had applied for the scholarship.
[10] Transcript 13 February 2019, p.11 line 46 to p.12 line 2.
Having referred to the text message of 26 March 2018 which the father had annexed to his affidavit, the mother asks:[11]
[MS OSWIN]: Your annexes sheet referred to as WB01 shows a text message from me stating that I haven’t enrolled [Y] anywhere, just making sure that he has options that we can discuss later. Is this correct?---With the document that I recall – yes.
….
[MS OSWIN]: Do I also say in that text message that I have no intention of sending him anywhere without discussing it with you first?---Yes.
(As per the original)
[11] Transcript 13 February 2019, p.12 lines 17–26.
The mother then moves to question the father about the email that she had sent some two years earlier on 24 April 2016 in relation to seeking options for high school for the parties’ oldest child X as follows:[12]
[MS OSWIN]: In my affidavit dated 25 January 2019, annexure TO03 shows an email I sent to you over two years ago stating that I had put [X’s] name down at two high schools so that we could make a decision on where she should go to high school. Did we both agree to send [X] to [P school] at [suburb G]?---Yes.
….
In the letter to [M school], had I accepted it without your consent to send him to [M school] with a scholarship?---Could you ask the question again, please?
The letter that I provided you with to [M school] required two signatures to accept the scholarship. I had signed one and there was a space for you to sign the other. Is this correct?---Yes.
Did you, at any time, sign and return that paper?---No.
[12] Transcript 13 February 2019, p.13 line 28 to p.14 line 36.
In the face of this evidence the primary judge was plainly in error in concluding that a prima facie case existed in relation to the charge that the mother had contravened Order 2, even on the application of the civil standard of proof, let alone the criminal standard. The requirements of s 70NAC set out above required a finding that the mother intentionally failed to comply with the order or made no reasonable attempt to comply with the order.
None of this, nor the meaning of “reasonable excuse” was explained by the primary judge to the mother for the purpose of receiving submissions. No analysis was undertaken by the primary judge of the scope and effect of the subject orders vis a vis the conduct of the mother alleged by the father taking into account the cross-examination to which we have referred.
In a clear denial of procedural fairness to the mother, she was not afforded any opportunity to make submissions on whether or not a prima facie case was established. Remarkably, at the conclusion of the father’s oral evidence the primary judge engaged with the father’s counsel about whether or not a prima facie case was established with respect to the alleged contraventions but that same opportunity was not given to the mother. She was fundamentally entitled to the opportunity to be heard about whether a prima facie case was established.[13]
[13] See Caballes.
Turning to the mother’s evidence, her affidavit filed on 5 October 2018 contained the following sworn evidence:
4.I deny the alleged contravention of paragraph 2 of the Consent Orders.
5.I had assisted [Y] with an application for a scholarship to [M school]. He was successful with his application and I provided [Mr Oswin] with all the information that the school had provided to me to accept his scholarship. At no time have I enrolled [Y] at [M school].
The mother’s further affidavit filed on 5 February 2019 contained the following important evidence:
5.I deny the alleged contravention of paragraph 2 of the Consent Orders.
6.Annexed hereto and marked TO01 is a copy of an email from [M school] stating that [Y] is not enrolled at [M school].
7.I say that two years ago I followed exactly the same procedure in regard to the matter of schooling for our eldest child [X]. I had submitted [X’s] name to two high schools and provided [Mr Oswin] with details of both. On this occasion we were able to reach a decision without incident. I assumed that, as this was acceptable two years ago, to come to a decision in regard to high schooling, that it would be acceptable this time also.
The mother annexes a copy of a letter (TO03) which is an email from her to the father regarding X’s high school options dated 24 April 2016 which relevantly in part states:
…
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] at [suburb G]. Extensive information on both schools is available on their respective websites. Once a decision on which school she attends is made all paper work will need to be completed in a timely fashion.
(As per the original)
The mother maintained in cross-examination by counsel for the father, that what she had done with respect to examining possibilities for the schooling of Y was in conformity with what she had done in 2016 with respect to the elder child X. The only relevant difference, readily acknowledged by the mother, was that she had not applied for a scholarship for the older child X as she did with the child Y.
In summary, the mother’s sworn evidence both in her affidavits and emanating from her cross-examination supports the conclusion that even if the father had established a prima facie case, by the conclusion of the mother’s evidence it could not reasonably be found that the mother had contravened Order 2 even on the civil standard of proof, let alone the criminal standard.
On the criminal standard the primary judge was bound to apply, it was necessary for there to be a finding beyond reasonable doubt that the mother had intentionally failed to comply with Order 2 or had made no reasonable attempt to comply with that order. The only reasonable view of the evidence is that the father had not established beyond reasonable doubt that the mother had contravened Order 2 and it was thus not open to the primary judge on the evidence to reach the requisite finding.
The finding of contravention of Order 1 – P school
With respect to the alleged contravention of Order 1 as regards the child Y’s enrolment in P school, the father’s affidavit evidence filed on 13 September 2018 included the following:
16.[Ms Oswin] responded informing me she had no other information regarding the school and to look on the website or contact them directly. She told me that she would not be contributing to any of the cost of private education for the boys. She also stated “I will also leave the [P school] application for you tomorrow”. This was the first time [P school] had ever been mentioned to me by [Ms Oswin]. I had no idea that she enrolled [Y] and she did not discuss it with me.
…
23.As stated above, the first time [Ms Oswin] mentioned [P school] to me was by text message on 19 June 2018.
24.Following this I was also provided a copy of a letter sent from [P school] to [Ms Oswin] only, 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.” As stated above, [Ms Oswin] subsequently admitted to enrolling [Y] in three (3) schools in her affidavit of 10 September 2018.
25.[Ms Oswin] did not inform me she had enrolled [Y] at [P school], and I was not provided with a copy of this letter and presumably not noted on the school's contact form as the letter was only addressed to her, and not me. Annexed hereto and marked “WB04” is a copy of that letter from [P school].
Whilst the contravention application charges the mother with “unilaterally enrolling” the child at P school, the letter from the school makes it clear that any enrolment is subject to confirmation and the payment of a
non-refundable fee. There was no evidence that, as at 31 May 2018, the enrolment had been confirmed by the mother nor that she had paid any fee. On the contrary, she had sent it to the father for his consideration.
In cross-examination of the father by the mother, the following exchanges occurred, including some instances of unfortunate interruptions by the primary judge:[14]
[MS OSWIN]: In June of 2018, did I provide to you a letter of acceptance for a scholarship at [M school] and at the same time I also provided you with an enrolment pack to [P school] asking if – where you would like to send the children.
HIS HONOUR: Okay, there’s three – three or four questions there.
[MS OSWIN]: Okay.
HIS HONOUR: Okay?
[MS OSWIN]: I beg your pardon.
HIS HONOUR: In June 2018, did [Ms Oswin] send you a letter showing that there had been an acceptance for [Y] to be enrolled?---Yes, your Honour.
Okay. Did she also send you – what’s the next thing, an information pack?
[MS OSWIN]: An enrolment pack for [Y] to be enrolled in [P school]?---Yes.
[14] Transcript 13 February 2019, p.14 lines 9–27.
At this point of the mother’s cross-examination of the father, and we repeat the mother was self-represented doing her best to present her case, the primary judge interrupted the mother’s cross-examination with a lengthy expression of his Honour’s understanding of the meaning of shared parental responsibility concluding with the entirely incorrect observation that the mother’s
cross-examination was not going to the question of contravention. The passage from the primary judge was as follows:[15]
HIS HONOUR: Okay. Can I – I just want to make sure that you understand what the contravention is and with the reasonable excuse; okay? It’s not whether – what the end result of this is all about. Shared parental responsibility means just that. If there are questions to be decided as to education, religion, where they are living and so on, there has to be, as it were, some form of interaction between the parents; okay? Now, you think about it this way; okay? If the two of you weren’t divorced, if the two of you were living together in the same household and – you know, nice happy family. If you were thinking about, “I’m thinking about converting to Judaism; I would like the kids to do it”, that might be a discussion that you have within the family and you talk about it, why you want to do it and why you want to have the kids doing it. And you discuss those sorts of things. There would be a decision, “yes. I’m going off to the local synagogue and I’m going to talk to the Rabbi there” and so on. But it’s something that you have discussed together. In such a family situation, it would be very rare that the mother goes off and does these things without talking to the father when they’re, you know, both living together. Okay? The concept of
equal – or shared parental responsibility is saying that, notwithstanding that you’re not together as a couple, notwithstanding that you don’t live together, notwithstanding that you – you know, you’re not spending every day – the whole thing is that you need to discuss things before they are done. So the complaint here is not that, you know, you enrolled him in this school, per say, or had an acceptance of enrolment and here you go, it’s that there hadn’t been any discussion about this beforehand. Whereas, what you’ve been able to show is in 2016 there had been discussion about what you were going to be doing with [X]. You had no such discussion with regard to [Y]. That’s the complaint. That’s the allegation of contravention. And your cross-examination at the moment isn’t going to that. All it’s going to is what was the end result. The end result is not really what we’re – what the contravention is all about. It’s not the ends that we’re talking about, it’s the means.
(As per the original) (Emphasis added)
[15] Transcript 13 February 2019 p.14 line 40 to p.15 line 20.
It can be seen that nowhere in that discussion does the primary judge distil the meaning of “decision” or the relevant provisions of the Act as we have earlier outlined. The primary judge was plainly wrong about what does, or does not, constitute a “decision” about a major long-term issue and the effect of s 65DAE. Most fundamentally, it was a clear denial of procedural fairness to the mother that her cross-examination of the father, entirely relevant to the central issues, was interrupted in this manner. Review of the transcript indicates that the primary judge persisted in unfortunate interruptions in the course of the mother’s cross-examination of the father. Even whilst that cross-examination was clearly yet to be completed, the primary judge announced in one of his lengthy interruptions that the mother was “not going to be able to convince [the primary judge] that there has been a reasonable excuse”.[16] Having announced that, the primary judge says:[17]
HIS HONOUR: So that’s fine. You want to ask those questions – it’s great. But we’re – you know, we’re not achieving anything by them.
[16] Transcript 13 February 2019, p.16 lines 1-2.
[17] Transcript 13 February 2019, p.16 lines 14–15.
With all due respect to the primary judge, had his Honour properly analysed the scope and effect of the orders and the relevant statutory provisions to which we have made reference, he ought to have recognised that the mother’s
cross-examination was entirely relevant and that the mother was certainly achieving her defence of the application by pursuing the line of questioning she undertook.
Putting the primary judge’s interventions into context by reference to the transcript the following is what occurs:[18]
HIS HONOUR: So that’s fine. You want to ask those questions – it’s great. But we’re – you know, we’re not achieving anything by them.
….
[MS OSWIN]: Okay. In 2016 had I begun the enrolment process for [X] to attend [T school]?---Yes.
In 2016 had I begun the enrolment process to send [X] to [P school]?---Yes.
Did I then email you and ask you which [school] we would go to?---Yes.
And we both decided that we should send [X] to [P school]?---Yes.
I then, in 2018, began the same sort of procedure. I started the enrolment process for [Y] at [M school]; is that correct?---Yes
At this point the primary judge interjected again, which led to the father giving the opposite answer in the highlighted passage below:
[18] Transcript 13 February 2019, p.16 line 14 to p.18 line 13.
HIS HONOUR: To your knowledge?---To my knowledge, yes.
Yes. So when did you become aware of that?---Your Honour, it was – I was advised by my son.
No – no – no. I’m - - -?---Okay.
- - - asking when did you become aware of - - -?---In June of 2018, your Honour.
Okay. Okay. All right. So in June 2018 you became aware but you say that was not through [Ms Oswin’s] intervention?---That was from [Ms Oswin], your Honour.
She told you in June 2018?---Via text message, your Honour.
Okay. Yes. Yes.
[MS OSWIN]: In 2018 did I also begin the enrolment process for [Y] to attend [P school]?---To the best of my knowledge, yes.
In 2018 did I follow the same procedure as I did in 2016 with [X]?
[COUNSEL FOR THE FATHER]: Objection. My client can’t answer that, your Honour.
HIS HONOUR: Well, with regard to informing him?---No, your Honour.
Okay. Okay. That’s the thing. In 2016 you knew what was happening with [X]?---Yes, your Honour.
And in 2018 were you aware of what was happening with [Y]?---No, your Honour.
Okay. There you go.
The primary judge, having caused the father to change his answer, by an entirely inappropriate intervention during cross-examination, then relied upon that answer by the father in his reasons for judgment. However an assertion by the father that two procedures were different is not evidence that they were:
[MS OSWIN]: In June 2018 were you aware that [Y] was – had - - -
HIS HONOUR: No – no – no. That’s irrelevant.
[MS OSWIN]: Okay.
HIS HONOUR: It’s what you did to inform him. So you can ask him – did I tell you that this is what I was doing if that’s what you want. But whether he became aware of it is totally irrelevant. It’s whether you informed him. That’s the only relevant question. Okay. So you ask relevant questions.
[MS OSWIN]: Did I inform you via text message that [Y] had been awarded a scholarship to attend [M school] - - -?---Yes.
- - - in June?---Yes.
Thank you. In that text correspondence did I also tell you that I was providing enrolment information to [Y] for us to consider?
HIS HONOUR: Well, show him the text. So he knows. Show him a copy of the text. Well, it should be in your affidavit, shouldn’t it?
[MS OSWIN]: I’m not sure that it is, your Honour.
HIS HONOUR: Well, I would have thought that that’s exactly – if it was that that you were going to show me – that it had happened – that that’s the sort of thing that you would do. But you would have a copy of the text anyway. So - - -
(Emphasis added)
Later the primary judge intervened and put the following proposition to the mother:[19]
Well, first off, the order that you attempted to enrol the child without discussing the – at [M school] without discussing the matter with the father?
---Well, I was trying to do – I enrolled him – put his name down at a few schools with the objective of putting that to [Mr Oswin] so that we could open discussions about where we were going to send him to high school, which is exactly what I did two years prior with [X], so I thought I was doing exactly the same thing. It wasn’t my intention to send him somewhere without asking [Mr Oswin]. I fully intended for [Mr Oswin] to be on board, and - - -
But the whole – okay?--- - - - for us to decide together.
I understand that, but the allegation is that you, as you say – the application is a part of the process of enrolment. The allegation is you didn’t even discuss that you were doing the application. That’s what is the gravamen of this allegation of contravention. So what is the reasonable excuse?---That I had followed exactly the same process two years ago. I had already started – I had put [X’s] name down at those two schools. She was already on the books. So I did exactly the same thing this time around for [Y], assuming that we would have discussions and decide between us where he would go.
[19] Transcript 13 February 2019, p.28 lines 3–21.
The primary judge purported to find that there was a prima facie case with respect to the allegation of contravention by the mother of Order 1. That finding was not expressed to be reached on the standard of proof required and, as earlier noted, was made without the mother being afforded any opportunity to be heard, as compared with the father’s counsel. Notably, at [30] of the reasons for judgment the primary judge recorded:
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.
The primary judge’s statement “until quite some time after” is somewhat misleading given that the mother received the letter on 31 May and provided it to the father on 19 June, a period of less than three weeks. High school was due to start in February the following year.
We fail to see how, on the father’s evidence, both affidavit evidence and following his cross-examination by the mother, a prima facie case for contravention of Order 1 could be said to have been stablished, even on the civil standard of proof let alone proof beyond reasonable doubt.
Turning to the mother’s evidence, her affidavit evidence filed on 5 October 2018 relevantly included the following:
7.I deny the alleged contravention of paragraph 1 of the Consent Orders.
8. I have not enrolled [Y] at [P school].
9.I had put [Y’s] name on the waiting list for [P school]. The [school] informed me that he had been accepted to the school for 2019. At this point I provided [Mr Oswin] with all the information [P school] had provided to me so we could make a decision about where [Y] should attend high school.
In a further affidavit filed on 5 February 2019, the mother refers at paragraph 10 to an email from [P school] dated 21 October 2018 which is annexed to the affidavit. Amongst other things, that email from the school confirms the following:
a)An application for enrolment for [Y] was originally made at the same time as the application for [X] in April 2016 (for him to attend year 7 in 2019);
b)Enrolment is not accepted until after an enrolment interview has been attended;
c)On 31 May 2018 [Y] had his enrolment interview and was formally offered a position for year 7 2019 and “Confirmation of Enrolment paperwork was provided to offer a position of enrolment to yourself directly after this interview”;
d)There is no acceptance of the offer until the confirmation of enrolment paperwork has been completed and there has been payment of the confirmation of enrolment fee;
e)As at 21 October 2018 the school had not received any paperwork nor payment; and
f)On 15 June 2018 the mother had made a request to the school for a further extension of the enrolment position offer due to “pressing family matters”.
At paragraph 11 of that affidavit the mother gives evidence that the parties had recently attended a mediation to come to an agreement on where Y should be educated (that is a mediation that took place shortly before 25 January 2019).
Notably, the mother was not cross-examined at all about any of her evidence concerning the alleged breach of Order 1.
It was fundamentally important for the primary judge to consider how these parents had dealt with shared parental responsibility with respect to decision making for the older child X. In our judgment, it was not on the evidence reasonably open to the primary judge to make the findings he did at [26]-[28] as follows:
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.
(As per the original)
There was no evidence one way or the other as to whether or not X went to an interview with P school. The email from the P school dated 21 October 2018 would indicate that, at least at that date, the process at the P school was that an enrolment is not accepted until after an enrolment interview has been attended and the relevant fee paid.
The primary judge apparently concluded that the father had established that the procedure the mother involved herself in in 2018 was a different procedure to the one she involved herself in in 2016 in relation to the child X. Shortly stated, that view or conclusion was not expressed to be reached beyond reasonable doubt. That aside, it was not open on the evidence for the primary judge to reach that conclusion even on the civil standard of proof.
In summary, the primary judge was plainly wrong in concluding that a prima facie case was established with respect to the alleged contraventions concerning the orders relating to parental responsibility. For the reasons we have discussed, the mother’s conduct could not constitute contraventions of the subject orders. Even if a prima facie case existed, it could not reasonably be concluded on the whole of the evidence that the mother had contravened the subject orders without reasonable excuse, either on the civil standard or the criminal standard of proof which the primary judge was bound to apply.
The finding of contravention of Order 18 – passport applications
Whilst the primary judge recorded, at [54] of the reasons for judgment, his view that this contravention “is not as serious as the first two” his Honour there confirms that the sentence to be imposed was for all three contraventions. Thus, it cannot be construed that the primary judge purported to deal with this as a “less serious contravention” under Subdivision E. What we have already discussed about the law to be applied, including as to the criminal standard of proof the primary judge was bound to apply, is apposite to this finding of contravention.
As already noted in summary, the mother’s position with respect to this alleged contravention was that she was not prepared to sign blank (uncompleted) applications for passports for the children and she had made that clear to the father. The father had not completed and signed his part of these documents. That is, there is no suggestion that the mother was opposed to obtaining renewed passports for the children.
Notably, the unequivocal evidence within both the father’s case and that of the mother demonstrates that by no later than 3 September 2018 the mother had made it perfectly clear to the father that she was not opposing applications being made for passport renewals – she was simply not prepared to sign blank documents submitted to her. The date 3 September 2018 is of importance given that it is the following day, 4 September 2018, which is the date adopted by the father in his application as the asserted date of contravention by the mother.
At paragraphs 69 and 70 of the father’s affidavit filed on 13 September 2018 in support of his application, the father deposes to the fact that, on 3 September 2018, the mother had communicated, via the father’s solicitors who had submitted the forms, to the effect that she would not sign documents that were not completed. At paragraph 70 of the father’s affidavit filed on 13 September 2018, he records the mother’s specific advice as follows:
“I note that at no time has your client contacted me directly in regards to getting the children's passports renewed, a matter that should have been easily executed by the parents. I am happy to comply with order 18 as soon as I receive completed applications for the boys. I note that I received 4 completely blank forms and I am not in the habit of signing blank documents. To date I have not received completed applications: Once I have received the completed applications I will attend to signing the documents and lodge them at the post office. Once I receive the new passports I will attend to providing your client with a copy of these for his records.”
(As per the original)
In her cross-examination of the father, he agreed that the mother had completed passport applications and that the passports had been renewed.
What is plain is that at no point does the primary judge appear to be cognisant of the date of the alleged breach contended for on the application for contravention filed by the father. We conclude that the primary judge was thus in error in determining that a prima facie case was made out on the father’s evidence for the contravention he alleged. That is so even if the civil standard were to be applied and as we have noted it was the criminal standard that applied.
With respect to the mother’s evidence, the mother confirmed in her affidavit evidence, her denial of the alleged contravention and confirmed the content of the email to which we have referred.
Moreover, in response to an assertion that because she held the old passports it would be necessary for the mother to complete the forms, the mother’s evidence included her communication on 15 September 2018 in the following terms:[20]
…
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 applications. I note that it is not necessary to provide these details in a 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 that I have provided your client with all details he has requested that he will be able to complete the applications and forward them to me for submission.
(As per the original)
[20] Annexure TO01 to the mother’s affidavit filed on 5 October 2018.
In the mother’s affidavit filed on 5 February 2019, the mother confirms the completion of passport applications in their entirety and the fact that new passports had been issued.
We set out the following extract from the mother’s cross-examination by counsel for the father on the issue of passports as a troubling example of the primary judge having intervened and interrupted cross-examination in a manner which we consider was highly unfair to the mother.
The relevant passage commences with counsel for the father referring to a letter from the father’s solicitors to the mother dated 26 July 2018 as follows:[21]
[21] Transcript 13 February 2019, p.30 line 37 to p.31 line 5.
[COUNSEL FOR THE FATHER]: Thank you, your Honour. A letter enclosing the following paragraph:
Please find enclosed a passport application for each child together with some spare applications in the event they are required.
Do you accept that that letter says that?---Yes.
Do you accept it’s dated 26 July 2018?---Yes.
Do you accept that you didn’t comply within 14 days of doing all acts necessary – all acts and things necessary and sign all documents necessary for a passport to be issued?---I did respond and ask for the applications to be filled out.
Ma’am, that’s not my question.
(As per the original)
We interpolate here to observe that this statement by counsel for the father suggests that the mother’s answer was not responsive to his question (which contained several propositions) but we emphasise that the mother’s answer demonstrates that she was being responsive to the question asked of her. However, what follows from the primary judge is troubling in terms of fairness to the mother.
The extract continues:[22]
HIS HONOUR: No. You have to listen to the question. You see – remember at the beginning I said to you, don’t jump ahead? You have got to answer the question that you’re asked, because that’s what your oath is about. And you were asked whether you complied within 14 days?---No.
That’s all you were asked. So why wouldn’t you respond to that truthfully, if it is that you’re trying to act in accordance with your oath? Okay? Now, I’m not going – that’s obviously a rhetorical question, but I said to you – I expect people to comply with their oaths in this court. So listen to the question and answer the question. It’s not an argument. It’s not a debate. It’s not a soapbox for him or for you to talk about anything else. It’s for him to ask questions, which are important, but more important is your answer, and if I can’t trust your answer because you’re not answering the question, it doesn’t go well for you?---Yes, your Honour.
So ask the question again and let’s get a truthful answer.
[22] Transcript 13 February 2019, p.31 lines 7–21.
The statements by the primary judge were unnecessarily intimidatory of the mother. The inference that the mother was not answering truthfully was unfair. In short, the nature of the primary judge’s statements via this interruption during her evidence was highly unfair to the mother.
We repeat that the evidence established that by the date of the alleged contravention the mother had clearly communicated to the father her reluctance, reasonably, to sign blank forms that had not been completed nor signed by the father.
In our view, that could not amount to a contravention of the subject order, certainly a contravention beyond reasonable doubt. Even if it could be construed to be a contravention within the meaning of the Act, then the mother had plainly demonstrated that she had a reasonable excuse for taking the position that she did.
It bears emphasis that the mother was not opposed to renewing passports for the children and indeed that had occurred by the time of the hearing of the application. What she opposed, reasonably in our view, was being expected to sign blank forms that were not completed by the father himself before they were submitted to her.
Conclusion on findings of contravention
For the reasons discussed, the primary judge was plainly in error in finding that the mother had contravened the orders on the three counts which the primary judge purported to find, presumably on the criminal standard of proof.
Lack of procedural fairness
We have, in the preceding discussion, highlighted instances and examples where the primary judge failed to afford the mother procedural fairness. For completeness, we make some further observations concerning this category of challenge advanced by the mother on appeal.
In Re F: Litigants in Person Guidelines (2001) FLC 93-072 at [253], the Full Court provided guidelines in cases involving unrepresented litigants which included:
a)A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise; and
b)“Where the interests of justice and the circumstances of the case require it a judge may:
i)Draw attention to the law applied by the Court in determining issues before it…”
In relation to the ability to object to inadmissible evidence, such evidence existed in the affidavit which the father had filed in support of his contravention application. The father’s affidavit contains inadmissible evidence including hearsay, assertions, conclusions and submissions. The primary judge did not bring to the mother’s attention the parts of the father’s affidavit to which objection could be taken. By way of example, the father deposes in his affidavit filed on 13 September 2018:
7.As far as I am aware, [Ms Oswin] has applied to enrol or enrolled [Y] in three (3) separate high schools so far without my knowledge or consent and subsequently blatantly denied doing so…
8.[Ms Oswin] recently applied for [Y] to attend [M school] and obtain a partial scholarship…
…
11.On Wednesday 13 June 2018 [Ms Oswin] took [Y] to an enrolment interview at [M school]…
…
19.I met with the Principal of [M school], [Mr D], on 3 August 2018 and was informed by Mr D that [Ms Oswin] had applied for the enrolment in March of this year…
(As per the original)
In relation to drawing the mother’s attention to the law to be applied the primary judge failed to:
a)Explain the meaning of the word “contravened” in s 70NAC;
b)Explain the meaning of the words “reasonable excuse” in s 70NAE;
c)Explain the standard of proof to be applied (s 70NAF);
d)Explain the difference between Subdivisions E and F of Division D 13A of Part VII of the Act;
e)Explain the powers that the Court might exercise if a finding of a more serious contravention is made (s 70NFB); and
f)Explain the provisions of s 70NFG(2);
and the primary judge erred in not having regard to and properly applying each.
It was obvious from the mother’s affidavits, filed and served in advance of the hearing on 13 February 2019, that the mother denied that she had contravened the subject orders in the manners alleged. Yet the primary judge did not ask the mother whether she maintained the position she had set out in her affidavits and did not refer her to her stated position at all. Rather, the primary judge asked the mother to plead to each of the alleged contraventions and informed her that her options were to say:
a)“I did not contravene that part of the order”;
b)“I did contravene that order but I do have a reasonable excuse for doing so”; and
c)“I did contravene that order and I did not have a reasonable excuse”.
After telling the mother about the first option the primary judge said:[23]
Now, be very careful about this. If I find that you – when you say you didn’t contravene it, and if I end up finding that you did contravene it, that’s going to be worse for you in the end…
[23] Transcript 13 February 2019, p.6 lines 10–12.
It was unfair for the primary judge to obtain the mother’s plea in the way in which he did. Unsurprisingly, the mother chose the second option in respect of each alleged breach even though, in her affidavits, she asserted that she had not breached any of these orders.
In the result, the mother conducted her cross-examination of the father, and gave evidence, in accordance with her affidavit evidence. However, this aspect serves as an example of the primary judge failing to afford procedural fairness to the self-represented mother.
Challenge to the costs order
It obviously follows that in circumstances where this appeal is to be allowed, the foundation for the costs order made by the primary judge is removed and that order should be set aside as a consequence.
In any event, the primary judge was in error in failing to seek any submissions whatsoever from either party on the question of costs. The primary judge did not provide any reasons whatsoever for making the costs order that he did and it is unclear as to whether the primary judge purported to make the costs order pursuant to the provisions of s 117(2) or s 70NFB(2)(g) of the Act.
If the costs order was purportedly made under s 117(2) then the primary judge has not demonstrated that he considered any of the matters he was obliged to consider pursuant to s 117(2A). That consideration would necessarily have included the feature that only three of the alleged contraventions were established to the primary judge’s satisfaction whilst seven charges in all were initially the subject of the application.
Section 70NFB(2) provides that orders that are available to be made by the Court include an order for the payment of costs by the person who committed the contravention. However, the fact that that power exists does not obviate the need for reasons to be provided both as to the making of the costs order and as to the amount ordered.
Orders on appeal
The appeal must be allowed and the orders of the primary judge set aside.
We are satisfied that because the appeal is allowed by reason of errors of law it is appropriate to grant each party a costs certificate in respect of their costs of appeal pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth).
For the reasons provided we are satisfied that it is appropriate to make an order as sought by both parties that the father’s application for contravention not be remitted for rehearing but rather be dismissed.
Finally, both parties consented to this Court making an order that the father refund any costs paid by the mother pursuant to the costs order made by the primary judge which has now been set aside.
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Kent, Watts & Tree JJ) delivered on 26 September 2019.
Associate:
Date: 26 September 2019
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