Bartsch and Redman (No 2) - [2014] FamCAFC 214

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

2011

APPEAL NUMBER:

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…

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 Bartsch and Redman (No 2)

Details

AGLC: Bartsch and Redman (No 2) [2014] FamCAFC 214
Case: [2014] FamCAFC 214
Decision Date: 7 November 2014

CaseChat Overview and Summary

In Bartsch and Redman (No 2), the father appealed against the orders of a Federal Circuit Court Magistrate regarding the religious instruction of the children. The father contended that the Magistrate had ignored evidence, specifically Vatican documents, in making her decision. The central issue was whether the Magistrate had erred in her handling of evidence, particularly the Vatican documents, and whether she had overlooked the Catholic Church's moral failings. The Court was required to determine if the Magistrate's decision was based on an appropriate assessment of the evidence and whether there was any procedural error in the handling of the appeal.

The Court found that the father's appeal was without merit. The father had not relied on the contested appeal book or sought to adduce further evidence as permitted by the Court. The remaining evidence consisted of limited and largely irrelevant documents that the father had not sought to use. The Court concluded that the Magistrate had correctly assessed the evidence before her and had not erred in her handling of the appeal. The Court further found that the father's assertions regarding the Vatican documents were not substantiated and did not form a basis for overturning the Magistrate's decision.

The Court dismissed the appeal and ordered the appellant to pay the Independent Children's Lawyer's costs. The Court found no merit in the father's argument that the Magistrate had ignored or mishandled evidence. The Court held that the Magistrate had appropriately assessed the evidence and made her decision based on the material properly before her.

Orders

Orders of the court

The appeal be dismissed.

The appellant pay the Independent Children’s Lawyer’s costs fixed in the sum of $4,124.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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… 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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