A trial judge who said he was “sick of people not obeying orders” and that “the court needs to send a message that this is not going to be tolerated” when sentencing a mother to imprisonment for alleged parenting contraventions has been found to have erred at law and the mother’s appeal has been allowed.
The appeal judges said: “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”. They also described a litany of other errors had been made by the trial judge.
In the appeal case of Oswin & Oswin [court pseudonyms], heard recently in the family court, the appeal judges found that the trial judge had imposed a “manifestly excessive” sentence which was not supported by adequate reasons and said the trial judge had not afforded the mother a fair trial and procedural fairness.
The case involved the parents of three children aged between 10 and 14, in which consent orders had been made for equal shared parental responsibility. The father had alleged the mother had contravened the orders on three occasions without reasonable excuse. The alleged parenting contraventions concerned enquiries the mother had made with schools which the father alleged contravened her requirement to consult with him on major long term decisions, as is required when parental responsibility is equally shared.
The dad had sought that sanctions be imposed on the mother in the form of requiring her to enter into a bond, but he had not sought a sentence of imprisonment because he was conscious of the potential impact on the couple’s children, and on her employability as a teacher’s aide, if she were imprisoned.
However at trial, the judge imposed a sentence of seven days’ imprisonment suspended for two years.
The father then joined the mother in the appeal in arguing that the trial judge had made “manifest, unrectifiable errors”, and that “the outcome was unjust, contrary to law and must be set aside”. The appeal judges agreed that the primary judge was plainly wrong.
Not only did the appeal judges find that the mother’s alleged parenting contraventions weren’t even contraventions, but they ruled that even if the contraventions had been established, the trial judge had erred in not giving reasons why any other penalty was inappropriate, nor had he applied the criminal standard of proof, which is necessary if a sentence of this kind is imposed.
What were the alleged contraventions?
Although the father had alleged contraventions in relation to decisions about the children’s schooling, all the mother had actually done was undertake “preparatory and provisional” preliminary enquiries with schools, with the intention of the parents ultimately jointly choosing the school. The father had also alleged a contravention in relation to the children’s passports, but the mother had not in fact been obliged to sign the blank passport applications which the father had provided; and she had correctly “pursued the father to submit appropriately completed applications”.
The contraventions didn’t involve any loss of time ordered for the kids to spend with dad. And despite characterising the alleged contraventions as “serious”, the judge himself noted the consequences for the children had not been serious.
The appeal judges found the mother had merely acted “to investigate possibilities for schooling”–and frankly, even a reasonable layperson observer can see that such behaviour hardly falls into a “more serious” category of contravening parenting orders.
However the trial judge categorised the alleged parenting contraventions as “more serious” rather than “less serious”, and he failed to consider whether other available sanctions were more appropriate, which was also contrary to the mandatory requirements of the Family Law Act.
Because the mother was self-represented, it was also incumbent on the trial judge to explain certain aspects of the proceedings to her in the interests of justice and in order for the mother to receive a fair trial. Self-represented parties to a contravention application must receive sufficient information from a judge about the procedures to be followed and the law to be applied. So the judge should have explained to the mum what the meaning and effect of the applicable laws was.
“Less serious” contraventions are dealt with under Subdivision E of Division 13A of the Family Law Act, while “more serious” contraventions are dealt with under Subdivision F. The primary judge didn’t explain to the mother the difference between these parts of the Family Law Act, despite the crucial distinction of the two subsections in terms of the standard of proof that needs to be applied. This was a “fundamental failure” of procedural fairness.
The trial judge also shouldn’t have allowed the dad to rely on inadmissible evidence without telling the mum she had the right to object to it; he shouldn’t have led the mum to plead to charges in a way that denied her procedural fairness; and he should have allowed the mum to make submissions about penalties and the proposed order for imprisonment.
Standard of proof
When a court makes a decision about evidence, it applies a standard of proof. Except for “more serious” contraventions, a party must only prove the allegations on the ‘balance of probabilities’–they must be more likely to exist than not. This is known as the civil standard of proof.
However, in “more serious” parenting contraventions, when a penalty such as a prison sentence might be imposed, allegations of intentional failures to comply with orders need to be proved ‘beyond reasonable doubt’—the same, higher standard as is required in criminal matters.
In this case, the trial judge didn’t explain to the mum, or even appear to recognise, the need to apply the criminal standard of proof to the facts of each contravention as is demanded under the Family Law Act. The trial judge was also criticised for interfering with the mother’s evidence and cross-examination, for being “unnecessarily intimidatory” of the mother and for making “disparaging remarks” about her, including accusing her of treating the father “as if he is dirt”—none of which was borne out by the evidence.
Because the appeals court did identify error on the part of the trial judge, the mother and father in this case were issued costs certificates to cover their legal costs in bringing the appeal.
You can read the case here.
Do you need advice in relation to a parenting or other family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.
You can read the Family Court’s guidance on compliance with parenting orders here.