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Cases published September 2019

Family Court of Australia – Full Court

Phillips & Hansford (No. 2) [2019] FamCAFC 165 (4 October 2019)
Appeal against interim parenting orders – whether the primary judge erred by making an interim order without conducting a Rice and Asplund [1978] FamCA 84; (1979) FLC 90-725 hearing – whether the primary judge gave consideration to the necessary s60CC considerations – where the primary judge did not err and did not deny the parties procedural fairness by not conducting a Rice and Asplund [1978] FamCA 84; (1979) FLC 90-725 hearing – where the primary judge had regard to relevant s60CC considerations – no merit in any of the grounds of appeal – appeal dismissed – written submissions to be provided as to costs.
Application in an appeal – further evidence – where the mother sought to adduce further evidence that was likely to be controversial – where the evidence was not admissible – application dismissed.

Oswin & Oswin [2019] FamCAFC 164 (26 September 2019)
Contravention – where the primary judge found the mother had contravened parenting orders providing for equal shared parental responsibility without reasonable excuse – where this was the first contravention application with respect to parenting orders made some three years earlier – where the father sought the imposition of a bond – where the primary judge imposed a sentence of seven days imprisonment suspended for two years – where it must follow that the primary judge was obliged to apply the criminal standard of proof – where the primary judge failed to fulfil the mandatory statutory requirement to give reasons for finding that no other penalty was appropriate – where investigation of available options for schooling did not constitute a unilateral “decision” about a major long-term issue – where the mother had declined to sign passport forms which the father had not completed or signed – where, on the whole of the evidence, it was not reasonably open to the primary judge to find any contravention on the criminal standard or the civil standard of proof – where the appeal was conceded – appeal allowed and the findings of contravention and the order for imprisonment set aside – where the father’s Application-Contravention at first instance is dismissed – costs certificates ordered.
Procedural fairness – where the mother was self-represented with no relevant legal training – where the primary judge failed to sufficiently explain to the mother the relevant law to be applied and procedure – where neither party was afforded any opportunity to make submissions as to whether the application was to proceed under Subdivision E or under Subdivision F of Division 13A of Part VII of the Family Law Act 1975 (Cth) – where the failure of the primary judge to provide that explanation to the mother and to invite her submissions upon the point was a fundamental failure to provide procedural fairness to the mother – where the primary judge was not attentive to the fundamental distinction between Subdivision E and Subdivision F of Division 13A – where the primary judge impermissibly intervened in cross-examination – where the primary judge’s comments bespeak pre-judgment or predetermination – where such interventions amount to a denial of procedural fairness – where the primary judge did not afford the mother the opportunity to be heard as to sentence.