Oswin & Oswin 2019 FamCAFC 164

The case of Oswin & Oswin [2019] FamCAFC 164 provides a great deal of guidance about the concepts of contravention and joint parental responsibility.

The case arose as a result of an appeal from a Federal Circuit Court Decision. The primary judge imposed a sentence of seven days’ imprisonment suspended for a period of two years upon the mother of three children aged 14, 12 and 10. The mother was unrepresented.

The trial judge had determined the mother was guilty of committing three contraventions without reasonable excuse.

The contraventions were that the respondent:

“…did not consult with the Applicant prior to enrolling the child [Y] born [2006] at [M school] and applying for a scholarship;

…the Respondent enrolled the child [Y] born [2006] at [P school]”

and thirdly:

“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”).”

The mother’s appeal raised the issue that the sentence was contrary to law, reflected the trial judge’s failure to “observe and apply mandatory provisions of the Family Law Act and was a sentence which was manifestly excessive and not one supported by the provision of adequate reasons”.

The Full Court concluded the appeal should be allowed.  The Full Court said:

“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 court then provided a discussion of the standard of proof which will be helpful to practitioners.

In essence, the standard is beyond reasonable doubt and that must be established before an order for imprisonment can be made.

The court has to consider that the contravention is a more serious contravention so that Subdivision F of Division 13A will apply and it is inappropriate to consider other available sanctions.

Subdivision E of Division 13A applies to 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.

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)“.

Subsection NFG(4) provided that the failure of a court to comply with subsection (3) didn’t invalidate a sentence, but that proviso didn’t protect the subsection against appealable error.

The Full Court found that:

“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.”

The court referred to Caballes & Tallant [2014] FamCAFC 112 which is a case which set out the fundamentals to be applied when self-represented parties are involved in contravention applications.  The judge has to ensure they receive sufficient information about the procedures to be followed and the law to be applied.

At paragraph 30, the Full Court noted:

“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.”

The court found that the primary judge had failed to meet the mandatory requirements of section N70NFG(3) as to the reasons to be provided.

The Full Court considered the trial judge’s behaviour towards the mother to be unnecessarily intimidatory.

The Full Court reflected that in the case of McClintock & Levier [2009] FamCAFC 62, the Full Court had emphasised that in dealing with a contravention under Division 13A, the aim will be to make orders that will enforce future compliance with the order.

The idea that you would make an example of a party would be an error of law. The focus of the statutory provisions is upon the individual party and the individual orders. There is no place for a general policy of deterrent.

The Full Court set out a discussion of parental responsibility and section 61D.

The court reminded practitioners that the effect of section 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.

The definition section of the Act provides the following definition for “major long-term issues 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:

  • the child’s education (both current and future); and
  • the child’s religious and cultural upbringing; and
  • the child’s health; and
  • the child’s name; and
  • changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.”

At paragraph 59, the Full Court said “Decision” as it appears in s 65DAC and s 65DAE is not a term defined in the Act.

The Full Court considered that:

“We are unable to see how either parent acting to investigate possibilities for schooling could conceivably constitute a contravention of the subject orders.”

The court then discussed sections 70NAC and NAE.

At paragraph 84, the Full Court said:

“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.“

The court considered that it was a “denial of procedural fairness to the mother that her cross-examination of the father, entirely relevant to the central issues, was interrupted (by the judge).”

The court concluded there had been no contravention. They then considered the issue of a lack of procedural fairness.

Re F: Litigants in Person Guidelines [2001] FamCA 348 was referred to and the guidelines were discussed.

It is a useful case to review the relevant concepts.