Oxbourne and Ewans and Anor - [2020] FamCA 125

FAMILY COURT OF AUSTRALIA

OXBOURNE & EWANS AND ANOR

[2020] FamCA 125

FAMILY LAW – CONTRAVENTION – Where respondent mothers found guilty of a prima facie case in respect of multiple breaches of Court Orders – Where respondent mothers plead a reasonable excuse in respect of all counts – Where reasonable excuse found in respect of one count only – Where standard of proof in respect of the defence of a reasonable excuse discussed – Where the breaches are serious.

Family Law Act 1975 (Cth), ss 79NAC, 79NAE, 70NAF, 70NEB(1)(d)

Northern Territory v GPAO [1999] 196 CLR 553
Vaughton & Randle (No. 2) [2013] FamCA 286
Saldo & Tindall [2012] FamCA 194
Stevenson v Hughes [1993] FamCA 14, (1993) FLC 92-363, (1993) 16 Fam LR 443

APPLICANT:

Mr Oxbourne

RESPONDENT:

Ms Ewans

RESPONDENT:

Ms Rose

FILE NUMBER:

SYC

1820

2014

DATE DELIVERED:

4 March 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

19 October 2018 and 23 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Christie SC

SOLICITOR FOR THE APPLICANT:

Dorter Family Lawyers and Mediators

COUNSEL FOR THE RESPONDENTS:

Mr Duane

SOLICITOR FOR THE RESPONDENTS:

NLS Law

Orders

That the respondents are found guilty without reasonable excuse of breaching Orders 5 (c) of Judge Sexton’s Orders of 7 August 2015 on the following dates:

(a) 6 March 2016;

(b) 4 September 2016;

(d) 8 January 2017; and

(e) 7 January 2018.

That the respondents are found guilty without reasonable excuse of breaching Order 6 of Judge Sexton’s Orders of 7 August 2015 on the following dates:

(a) 27 March 2016;

(b) 8 July 2016;

(d) 25 December 2016;

(e) 5 March 2017; and

(f) 16 April 2017.

That by way of penalty the respondents to each enter into a bond under section 70NEB(1)(d) of the Family Law Act 1975 (Cth) to be of good behaviour for 12 months.

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 Oxbourne & Ewans 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).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1820 of 2014

Mr Oxbourne

Applicant

And

Ms Ewans and Ms Rose

Respondent

REASONS FOR JUDGMENT

The matter of Oxbourne, Ewans and Anor relates to two Contravention Applications filed by Mr Oxbourne, the biological father of the child, X, born … 2006. There were multiple breaches alleged in each Application.
Ms Christie of Senior Counsel, represented the Applicant and Mr Duane of Counsel represented the…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2020] FamCA 125
Decision Date: 4 March 2020

CaseChat Overview and Summary

In the matter of *Oxbourne and Ewans and Anor*, Henderson J of the Federal Circuit and Family Court of Australia considered allegations that the respondents had breached specific orders made by Judge Sexton on 7 August 2015. The dispute centred on whether the respondents had, without reasonable excuse, contravened Order 5(c) and Order 6 of those earlier orders on multiple occasions between March 2016 and January 2018.

The primary legal issues before the Court were whether the respondents had breached Order 5(c) and Order 6 of the 7 August 2015 orders, and if so, whether they had done so without reasonable excuse. The Court was required to assess the evidence presented to determine if the conduct of the respondents met the threshold for a breach of the court’s orders, and to consider any justifications offered for their actions.

Henderson J found that the respondents were guilty, without reasonable excuse, of breaching Order 5(c) on five specified dates and Order 6 on six specified dates. In determining this, the Court applied the principles of statutory interpretation to the relevant provisions of the *Family Law Act 1975* (Cth) and the terms of Judge Sexton’s orders. The Court considered the evidence in relation to each alleged breach and concluded that the respondents' actions constituted a contravention of the orders. As a penalty, Henderson J ordered that the respondents each enter into a bond under section 70NEB(1)(d) of the *Family Law Act 1975* (Cth) to be of good behaviour for a period of 12 months.

Orders

Orders of the court

That the respondents are found guilty without reasonable excuse of breaching Orders 5 (c) of Judge Sexton’s Orders of 7 August 2015 on the following dates:

(a) 6 March 2016;

(b) 4 September 2016;

(d) 8 January 2017; and

(e) 7 January 2018.

That the respondents are found guilty without reasonable excuse of breaching Order 6 of Judge Sexton’s Orders of 7 August 2015 on the following dates:

(a) 27 March 2016;

(b) 8 July 2016;

(d) 25 December 2016;

(e) 5 March 2017; and

(f) 16 April 2017.

That by way of penalty the respondents to each enter into a bond under section 70NEB(1)(d) of the Family Law Act 1975 (Cth) to be of good behaviour for 12 months.

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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