Oxley & Inglis - [2007] FamCA 1606

FAMILY COURT OF AUSTRALIA

OXLEY & INGLIS

[2007] FamCA 1606

FAMILY LAW – APPEAL – CHILDREN - Orders – Contravention

Family Law Act 1975 (Cth), s 70NAE
Federal Magistrates Court Rules 2001, Rule 25B.04

In the marriage of Gaunt (1978) FLC 90-468
Vlug v Poulos (1997) FLC 92-778

APPELLANT:

MR OXLEY

RESPONDENT:

MS INGLIS

FILE NUMBER:

TVM

2191

2002

APPEAL NUMBER:

2006

DATE DELIVERED:

16 March 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

WARNICK J

HEARING DATE:

13 MARCH 2007

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

4 DECEMBER 2006

LOWER COURT MNC:

[2006] FMCAfam 728

REPRESENTATION

THE APPELLANT:

In person (via videolink)

THE RESPONDENT:

No appearance

Orders

That the appeal be allowed.
That the applications of the father filed 1 and 8 November 2006 in the Federal Magistrates Court be remitted for rehearing by a Federal Magistrate other than Coates FM.
That the court grants to the appellant father a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 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 father in respect of the costs incurred by the appellant father in relation to the appeal.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Oxley and Inglis.

FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 93 of 2006
File Number: TVM 2191 of 2002

MR OXLEY

Appellant

And

MS INGLIS

Respondent

REASONS FOR JUDGMENT

Basically, all that [Mr Oxley] seeks from this appeal is recognition that he was right in respect of two occasions on which he alleges [Ms Inglis] contravened parenting orders relating to arrangements for their child, [B], born [in 1997].
The circumstances of this matter throw up many of the features that so often seem to bedevil contravention applications; actions by the respondent, which even if contrary to orders, are seemingly of little moment and either apparently for the benefit of the child or at least not harmful to the child’s interests (a hint of pettiness in the complaint); and/or a perception from the evidence that the interest of the court in obedience to its orders is being invoked in support of a power struggle between the parents (the frustrating prospect of lending the support of the law to a poor motive); and probably as a result of these features and the frequent lack of legal representation of the parties, a hearing which departs from some of the rules, perhaps in an attempt to provide the proportionality and tolerance often apparently missing from one or both of the parties.
However, this matrix often throws up several consequences. One is that insufficient understanding is given to the dilemma for a party with the benefit of an order which has been breached, especially repeatedly, and even…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Oxley & Inglis

Details

AGLC: Oxley & Inglis [2007] FamCA 1606
Case: [2007] FamCA 1606
Decision Date: 16 March 2007

CaseChat Overview and Summary

The appeal concerned applications made by the father, Mr Oxley, in the Federal Magistrates Court against the mother, Ms Inglis, alleging contraventions of court orders. The Federal Magistrate presided over the hearing of these applications.

The central legal issue before the court was whether the Federal Magistrate had properly conducted the hearing of the contravention applications, specifically in relation to the procedural requirements mandated by Rule 25B.04 of the Federal Magistrates Court Rules 2001. This rule outlines a specific procedure for the court to follow when hearing such applications, including informing the respondent of the allegations, asking them to admit or deny them, and hearing evidence from both parties.

The court found that the procedure followed by the Federal Magistrate did not strictly adhere to Rule 25B.04. The mother was not informed of the allegations and asked to admit or deny them, nor was she given an opportunity to give evidence in chief before being cross-examined. The court noted that a similar failure to strictly follow the prescribed procedure in a previous case, *Vlug v Poulos*, had led the Full Court to consider it unsafe to allow findings of contravention to stand due to the potential penal sanctions. Consequently, the appeal was allowed.

The court ordered that the father's applications be remitted for a rehearing by a different Federal Magistrate. Furthermore, the court granted the appellant father a costs certificate, indicating that it would be appropriate for the Attorney-General to authorise a payment to him in respect of the costs incurred on the appeal.

Orders

Orders of the court

That the appeal be allowed.

That the applications of the father filed 1 and 8 November 2006 in the Federal Magistrates Court be remitted for rehearing by a Federal Magistrate other than Coates FM.

That the court grants to the appellant father a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 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 father in respect of the costs incurred by the appellant father in relation to the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Federal Magistrate said “No you don’t dispute who Ms [Inglis] is do you?” Mr [Oxley] said “I’m not sure about this”. The Federal Magistrate then said “Well you may get on and question Ms [Inglis]”. The father then briefly cross-examined the mother. Therefore, the mother gave no evidence in chief but was immediately subjected to cross-examination. Next, the Federal Magistrate asked the mother some questions. The Federal Magistrate then asked the father if he disputed that [B] had asked his mother to actually pick him up and take him to his place and whether he disputed that [B] seemed to get bored while he was waiting. Rule 25B.04 of the Federal Magistrates Court Rules 2001 applied to the contravention applications and provides:At the hearing of the application, the Court must:(a)inform the respondent of the allegation; and(b)ask the respondent whether the respondent wishes to admit or deny the allegation; and(c)hear any evidence supporting the allegation; and(d)ask the respondent to state the response to the allegation; and(e)hear any evidence for the respondent; and(f)determine the proceeding. In Vlug v Poulos (1997) FLC 92-778, the Full court stressed that the application of O 35, r 14 (the predecessor and essentially identical rule to r 25B.04) must be strictly followed (at 84,598-84,599):“…[I]n relation to the hearing of the husband’s s 112AD application in this case we are somewhat concerned about the procedure which was followed (or perhaps more correctly not followed) at the hearing. Once his Honour decided to permit the application to proceed and although reserving his decision on the competency of the application, he should have ensured that the procedure prescribed for the hearing of contravention applications by O 35 r 14 was adhered to……A consideration of the transcript…might perhaps lead to the conclusion that the prescribed procedure was followed in a very general or broad way. However it was certainly not strictly followed, and had there ultimately been a finding that the wife had, without reasonable excuse, breached the order in question, we may well have considered it unsafe to permit that finding to stand given the penal sanctions which such a finding can attract (emphasis added). The following concerns about the hearing arise:•The mother was not informed of the allegations and asked whether she admitted or denied them.•The mother was not asked if she wished to cross-examine the father.•Neither party was informed of any need to put his/her case to the other party.•The mother gave no evidence in chief.•Questions were asked of the mother by the Federal Magistrate after the cross-examination by the father but neither party was asked if he/she wished to ask about anything that arose out of that questioning.•Some “evidence” seems to have been sought by the Federal Magistrate from the well of the court. It follows from what I have said of the father’s arguments that the appeal succeeds. It may well also have been proper to allow the appeal because of the flawed conduct of the proceedings, even though the father did not argue that as a ground.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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