WINCH & JACKSON - [2015] FamCAFC 75

FAMILY COURT OF AUSTRALIA

WINCH & JACKSON

[2015] FamCAFC 75

FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Contravention of parenting orders application – Where the mother admitted contravening parenting orders – Where parties agree bond was appropriate - Where two year bond imposed - Where the court was able to depart from the procedure in the Federal Circuit Court Rules 2001 (Cth) – Where trial judge obliged to design a fair procedure – Where there was no agreement as to the duration of any bond and no submissions were invited on that point – Where it is for the court alone to determine penalty and parties themselves cannot consent to a penalty – Where failure to determine whether the contraventions fell into the less serious or the more serious category as to determine which statutory provision gave the court power to impose a bond – Section 70NEC(5) discussed - Where failure to comply with statutory requirement to explain to the bond and what would happen if the mother failed to comply with the bond – Where belated explanation was inadequate – Where there was a denial of procedural fairness – Appeal allowed.

FAMILY LAW – APPEAL – SENTENCING – Sanctions – Whether the imposition of a two year bond was excessive – Proper approach to imposition of penalties and sanctions in Division 13A of Part VII of the Family Law Act discussed – Where general sentencing principles should be applied – Where the sanction imposed was at the upper end of power – Where the mother had no previous sanctions approved against her and where she provided an affidavit which detailed the difficulties she had with understanding the orders and with communicating with the father – Where no reasons were provided for the imposition of a two year bond – Where the sanction was excessive – Appeal allowed – Orders set aside - Mother released from the bond.

FAMILY LAW – APPEAL – COSTS – Where it is impermissible to use costs power solely to deter future contraventions – Appeal allowed – Costs order set aside.

Family Law Act 1975 (Cth): ss 60I, 70NEB, 70NEC, 70NECA, 70NFA, 70NFB, 70NFE, 112AP, 117

Federal Circuit Court Rules 2001 (Cth): r 25B.04

Caballes & Tallant (2014) FLC 93-596
Dinsdale v R (2000) 202 CLR 321
Greer & Bedelia [2009] FamCAFC 136
Kendling v Kendling (2008) FLC 93-384
McClintock & Levier (2009) FLC 93-401
Penfold v Penfold (1980) 144 CLR 311
Tak Fat Wong v The Queen (2001) 207 CLR 584

APPELLANT:

Ms Winch

RESPONDENT:

Mr Jackson

FILE NUMBER:

WOC

123

2013

APPEAL NUMBER:

2014

DATE DELIVERED:

17 March 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Ryan & Le Poer Trench JJ

HEARING DATE:

17 March 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

12 May 2014

LOWER COURT MNC:

[2014] FCCA 1314

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr S Schonell

SOLICITOR FOR THE APPELLANT:

Legal Aid NSW, Wollongong

FOR 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.

Continue reading WINCH & JACKSON

Details

AGLC: WINCH & JACKSON [2015] FamCAFC 75
Case: [2015] FamCAFC 75
Decision Date: 17 March 2015

CaseChat Overview and Summary

In the appeal case of Winch & Jackson, the mother and father of a child were engaged in a dispute concerning the contravention of parenting orders. The mother had admitted to breaching the parenting orders, and the matter was brought before the Family Court of Australia for determination of a suitable penalty. The mother had executed a bond, agreeing that she would face a penalty if she continued to contravene the orders. The court was required to decide on the procedural fairness of the proceedings, the appropriateness of the bond imposed, and the costs associated with the appeal.

The court found that the trial judge had contravened the principles of procedural fairness. The judge failed to adhere to the procedural requirements outlined in the Federal Circuit Court Rules 2001 (Cth) and did not invite submissions from the parties regarding the duration of the bond. The court noted that it is not within the purview of the parties to consent to a penalty, and the trial judge had not determined whether the contraventions fell into the less serious or more serious category, as required by statute. Furthermore, the court highlighted that the trial judge did not adequately explain the implications of the bond to the mother, resulting in a denial of procedural fairness. The court also found the two-year bond to be excessive, as it was at the upper end of the court's power, and no reasons were provided for its imposition. The appeal was allowed, and the orders were set aside.

The court held that the use of costs as a deterrent for future contraventions was impermissible. The appeal was allowed, and the costs order was set aside. The orders made by the Family Court of Australia were to allow the appeal, set aside the orders made on 12 May 2014, release the mother from the bond executed on that date, remit the proceedings for rehearing by a different judge, and make no order as to costs. The case highlights the importance of procedural fairness in Family Court proceedings and the need for courts to carefully consider the appropriateness of penalties imposed on parents for contravening parenting orders.

Orders

Orders of the court

The appeal be allowed.

Orders 1, 2 and 3 of the orders dated 12 May 2014 be set aside.

To the extent that it may be required, release the mother from the bond executed by her on 12 May 2014.

Remit the proceedings for rehearing by a judge other than Judge Altobelli.

There be no order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.