Bartsch and Redman (No 2)
[2014] FamCAFC 214
•7 November 2014
FAMILY COURT OF AUSTRALIA
| BARTSCH & REDMAN (NO. 2) | [2014] FamCAFC 214 |
FAMILY LAW – APPEAL – CHILDREN – Where the father appeals an order that the mother have sole parental responsibility – Where the father sought an order that the parties have “joint equal shared parental responsibility for all major long term issues, including religion and religious education” – Where the father complains the Federal Magistrate wrongly ignored evidence – Where none of that “evidence” could rationally affect the assessment of whether or not an order for equal shared parental responsibility should be made – Where the Federal Magistrate did not ignore any evidence – Appeal dismissed.
FAMILY LAW – APPEAL – COSTS – Where the Independent Children’s Lawyer made an oral application for costs against the father – Where the father has been wholly unsuccessful in his appeal – Order made that the father pay the Independent Children’s Lawyer’s costs.
| Family Law Act 1975 (Cth), s 65DAC(2)-(3) |
De Roma and De Roma (2013) 49 Fam LR 226
| APPELLANT: | Mr Bartsch |
| RESPONDENT: | Ms Redman |
| FILE NUMBER: | SYC | 1818 | of | 2011 |
| APPEAL NUMBER: | EA | 50 | of | 2013 |
| DATE DELIVERED: | 7 November 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Thackray, Strickland and Watts JJ |
| HEARING DATE: | 15 October 2014 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 April 2013 |
| LOWER COURT MNC: | [2013] FMCAfam 309 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Peter Baker Solicitor |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Falloon |
Orders
The appeal be dismissed.
The appellant pay the Independent Children’s Lawyer’s costs fixed in the sum of $4,124.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bartsch & Redman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 50 of 2013
File Number: SYC 1818 of 2011
| Mr Bartsch |
Appellant
And
| Ms Redman |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The parties had two children, X and Y, who were respectively 11 and 9 years of age at the time of the hearing. On 5 April 2013 Federal Magistrate Sexton (as her Honour then was) made parenting orders which included an order that Ms Redman (“the mother”) have “sole parental responsibility for decisions relating to major long term issues for the children, including … religion”.
By Notice of Appeal filed 3 May 2013, Mr Bartsch (“the father”) appealed that order and sought an order that both parents have “joint parental responsibility for decision [sic] relating to major long term issues for the children, including … religion”. The mother sought that the father’s appeal be dismissed.
At the hearing the father had relevantly sought the following orders:
1.That subject to order 2, the parties each have joint [sic] equal shared parental responsibility for all major long term issues, including religion and religious education, relating to the children of the relationship, namely [the child X] and [the child Y].
2. That the chosen religion must involve an organisation with a strong record of child protection issues and beliefs that imply the equality between women and men.
APPLICATIONS IN AN APPEAL
The father filed an Application in an Appeal on 16 April 2014 to adduce further evidence. A second Application in an Appeal to adduce further evidence was filed on 7 October 2014. Both these applications were dismissed at the appeal hearing on 15 October 2014, for reasons given on that day.
The father filed an Amended Application in an Appeal on 7 October 2014 and that application was allowed by consent. In that application the father sought an extension of time to file an amended Summary of Argument, permission not to use transcripts, and for him to withdraw grounds of appeal 1 and 2. The effect of the last order was that the father sought only to press ground 3 in his Notice of Appeal filed on 3 May 2013.
BACKGROUND
The parties were born in Peru. They commenced cohabitation in Australia in 1996. The mother says the parties separated under the one roof in 2005; the father says that the parties did not separate until they ceased to live under one roof in 2008. The mother took the children to Peru between November 2006 and August 2007.
At the time of the hearing, in accordance with interim orders, the children spent each alternate weekend with the father from 1.00 pm Saturday until 7.00 pm Sunday. The Federal Magistrate found that the father had a lack of understanding of the serious concerns raised about his parenting capacity and his ability to engage appropriately or empathetically with the children. For these and other reasons, fully articulated in her Honour’s judgment, she ordered that the children live with their mother and spend time with the father, limited to four hours each second week, time on special days and other time by agreement.
As indicated above, the Federal Magistrate ordered that the mother should have “sole” parental responsibility for decisions relating to major long term issues for the children, including but not limited to decisions about religion. Her Honour’s reasons for making that order included:
·Consultation between the parties was currently unworkable given that the parties did not communicate and that was unlikely to improve as a result of the father’s emotional capacity and attitude;
·Consultation would lead to conflict, and be likely to involve and impact adversely upon the children;
·The children would likely be used as messengers between the parties, which would be a stressful and inappropriate role for them;
·The father lacked insight, had poor parental judgment, limited capacity to consider issues from the children’s perspective and to consider their wishes;
·Given the father’s strongly negative views about the Catholic Church, there could never be consensus between the parties on religion;
·There was evidence of occasions when the father had been unable to agree upon quite simple proposals made by the mother.
It is important to record that the father did not seek to challenge any of these findings by the Federal Magistrate.
The mother was raised in the Catholic faith and continues to practice Catholicism. Her evidence at trial was that the children have developed an interest in this religion. Her Honour found that the children wished to attend scripture lessons and to participate in church related activities with the mother. Her Honour recorded that the child X told the family consultant that she enjoyed going to church and the activities associated with church.
The effect of her Honour’s order granting the mother parental responsibility is that the mother can make decisions about the children attending scripture class and being involved in her church, without the requirements imposed by s 65DAC(2) and s 65DAC(3) of the Family Law Act 1975 (Cth) which would, if the order sought by the father was made, require decisions about religion to be made jointly, require consultation with the father and require a genuine effort to come to a joint decision. The only requirement imposed by her Honour was that the mother notify the father by email, as soon as practicable, of any major long-term decisions she has made in respect of the children’s education or religion.
GROUND OF APPEAL
The remaining ground of appeal was expressed by the father, who was unrepresented, in the following terms:
The Magistrate wrongly ignored evidence being given. The Vatican documents and Vatican-related documents filed as Affidavits demonstrate that the Catholic Church has no moral authority to teach scripture class to any children. Magistrate Sexton seems to fail to grasp the gravity of the actions of the Holy See. The Holy See’s disgraceful conduct was not just historical as the cover ups continue to this day. So far, the Holy See is yet to admit the authenticity of the documents and, more importantly, is yet to provide proper financial compensations to the victims named in those Vatican documents. Magistrate Sexton appears to have normalised in her mind the notion that religious organisations can do no wrong, and if they do something wrong she will not talk about that, she will not write about that, and particularly she will not spend even one word about that in her Reasons for Judgement. This is the kind of Magistrate (and indeed, the kind of police officer, teacher, nurse, doctor, Catholic Bishop, etc) that the Catholic Church has used for decades, if not centuries, to keep covering up child sexual abuse crimes…
DISCUSSION
The “Vatican documents and Vatican-related documents” to which the ground of appeal refers are limited. As mentioned above, the father’s applications in an appeal to adduce further evidence, being a volume of additional documents, were dismissed.
The contested appeal book contains six affidavits which were not relied upon by the father at the hearing before the Federal Magistrate (see the father’s case outline document of 20 March 2013). Whilst some of this material responds to affidavits filed by the mother from time to time, the bulk of it relates to the failings of the Catholic Church in dealing with paedophile priests and the position of women in the Catholic Church. The father did not seek to rely upon any of the documents in the contested appeal book and sensibly did not make any application to adduce this material as further evidence.
What “Vatican documents and Vatican-related documents” remained are annexed to the father’s affidavit filed on 12 March 2013. That affidavit refers to a book and a website. The annexures to the father’s affidavit contain the following:
·A letter in a foreign language;
·A table of contents;
·A two page letter from one American cleric to another;
·One page of what seems to be a record of an interview between a journalist and Pope Benedict XVI.
The father asserts in this affidavit that this material establishes that three Popes protected a paedophile priest by not reporting him to police, and that Pope Benedict XVI was lying in order to cover up crimes against children. The father concludes:
6. …It follows that the Holy See’s leaders and top officials have willingly and deliberately covered up crimes against children for decades, if not centuries.
7. As a result, it is obvious that it is not in the best interests of children anywhere in the world to attend Catholic scripture class.
The father claims that the Federal Magistrate ignored what was in his Affidavit filed 12 March 2013 and failed to grasp the relevance of the actions of the Holy See.
None of the documents provided by the father could rationally affect (directly or indirectly) the assessment of whether or not an order for equal shared parental responsibility (which would encompass responsibility for religion) should be made, with the condition which the father wished to impose. It would not have been an appealable error had her Honour ignored these documents. However, whilst her Honour did not specifically refer to the contents of the father’s affidavit filed on 12 March 2013, her Honour was mindful of the issues raised in that affidavit.
Paragraph 23 of her Honour’s reasons is as follows (original emphasis, footnote omitted):
The Father expresses definite views about certain issues, including strong opposition to the Catholic religion, and the need for the children to focus on homework and educational tasks. In relation to Catholicism, the Father is opposed to the children attending scripture classes at school. The Father believes that “the children may be exposed to homophobic, misogynist and ‘soft-on-paedophiles’ views while attending the Catholic church.” He says “I believe scripture teachers in Australia become complicit in the cover up if they choose not to resign despite all the scandals engulfing the Catholic Church.” There is no issue that the Father is entitled to hold these views. The concern arises from the manner in which he behaves as a result of these views.
The reference to the father’s behaviour includes events of a disturbing nature arising from the father’s attendance at the children’s school in February 2011 and March 2011 to ensure that the children were not attending scripture classes.
Later in her reasons her Honour refers to “the father’s strongly negative views about the Catholic Church” ([73(iv)]).
We do not accept that her Honour “wrongly ignored evidence”. Her Honour refers to the definite views that the father held, including his strong opposition to the Catholic religion, which are evidenced by the material that was before her Honour.
For these reasons, the father’s only ground of appeal fails and the appeal must be dismissed.
COSTS
The mother did not seek an order for costs against the father.
The Independent Children's Lawyer sought an order for costs against the father in the sum of $4,124. The Independent Children's Lawyer is to be treated as being unfunded (De Roma and De Roma (2013) 49 Fam LR 226). The father had not filed a financial statement, but indicated that he could not pay the amount. He said he is receiving social security benefits and has no assets. The father said if he knew that he would be required to pay the Independent Children’s Lawyer’s costs, he would have taken a different approach. He indicated if he was required to pay, he would have to do so in instalments. We accept that the father is currently impecunious.
The father has been wholly unsuccessful in this appeal. It is proper that an order for costs be made as sought.
The quantum of costs claimed is in accordance with the scale established by Legal Aid NSW and is reasonable.
An order will be made that the father pay the Independent Children’s Lawyer’s costs fixed in the sum of $4,124.
I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 7 November 2014.
Associate:
Date: 7 November 2014
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