Bircher and Bircher

[2018] FamCA 364

FAMILY COURT OF AUSTRALIA

BIRCHER & BIRCHER [2018] FamCA 364

FAMILY LAW – CHILDREN – PARENTING – Contravention – Where each of the parents have brought numerous contravention applications against the other – Where each of the parents formally agreed to pursue and prosecute two alleged contraventions and discontinue all of the other contravention applications – Where each of the parents are found to have contravened without reasonable excuse on two counts.

Australian Passports Act 2005 (Cth), s 11(1)
Family Law Act 1975 (Cth)

APPLICANT: Mr Bircher

RESPONDENT: Ms Bircher

INDEPENDENT CHILDREN’S LAWYER: Ms Singh-Pillay

FILE NUMBER: BRC 1459 of 2011

DATE DELIVERED: 24 May 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 15 May 2018

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Singh-Pillay

Cornerstone Law Offices

Orders

1. That within twenty eight (28) days, each of the mother and the father shall pay the sum of $654.00 to the Legal Aid Office Queensland on account of the Independent Children’s Lawyer’s costs of and incidental to her appearance at the Contravention hearing on Tuesday, 15 May 2018.

2. That the parenting Orders made by Judge Demack on 18 November 2014 as varied on 9 December 2014 and 10 March 2015 be varied as follows:

   (i)Paragraphs (8) and (9) be deleted and replaced with the following:

   (8) That the school holidays shall commence at the formal conclusion of school on the last day of school term and shall conclude at the formal commencement of school on the first day of the next school term.

   (9) Changeovers shall take place at the exact mid-point of those school holidays (calculated pursuant to paragraph (8) hereof), but should that mid-point fall overnight between 6:00 pm one day and 8:00 am the next day then the changeover shall take place at 6:00 pm at the commencement of that overnight period.

   (ii)      Paragraph (37) be deleted and replaced with the following:

   (37) Notwithstanding the conferral of equal shared parental responsibility for the children, B born … 2007, C born … 2008 and D born … 2009, on the mother and the father, the father, MR BIRCHER is hereby authorised to apply for and obtain Australian passports for the said three children without the consent of the mother, MS BIRCHER and without the need for the mother to sign any applications for the issue of any such passports.

   (iii)     by adding the following paragraph:

   (59A)(i)     That by Friday 8 June 2018, the father shall have taken all necessary steps to contact F Group at their E Town Offices and shall have registered or enrolled and commenced the process of being accepted into that service’s first available Parenting Orders Program that can accommodate him. He shall at his sole expense complete that course by no later than the end of February, 2019 and he shall provide the Independent Children’s Lawyer (“the ICL”) and the mother with documentary proof of completion of that course by no later than the end of February, 2019.

   (ii)Should the father not be accepted into a Parenting Orders Program offered by F Group, E Town for any reason, he shall immediately notify the ICL and the mother in writing of that fact and he shall provide them with a copy of any written reasons given to him for his non-acceptance and he shall also notify the Judicial Services Manager of this Registry of the Family Court, …, who shall bring the matter to the attention of Justice Forrest so that his Honour may give consideration to listing the matter for further mention.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bircher & Bircher has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1459 of 2011

Mr Bircher

Applicant

And

Ms Bircher

Respondent

REASONS FOR JUDGMENT

1. On Tuesday, 15 May 2018, after a contravention hearing I found the mother in this case had contravened primary parenting orders without reasonable excuse. I also found the father had contravened those same parenting orders without reasonable excuse.

2. I heard submissions from each of them as to the appropriate consequences that should follow and I reserved my judgment on that.

Some Background

1. The parents consented to the relevant primary parenting orders being made by Judge Demack of the Federal Circuit Court in November 2014. Notwithstanding that fact, what can, in my view at least, reasonably be described as high conflict between them has continued unabated ever since. Indeed, the mother filed an application commencing fresh parenting proceedings in 2016 in which she seeks to vary those primary orders. The father responded with his own application to significantly vary those primary orders as well. Those proceedings are still pending. 

2. Each of the parents has also brought contravention applications against the other. Each alleged multiple contraventions by the other. The alleged contraventions totalled well over forty.  Those were, for some reason not known to me, not listed for hearing in the Federal Circuit Court and many months later the proceedings, including the contravention applications, were transferred to this Court.

3. The contravention applications were subsequently listed before me for hearing. At the commencement of the hearing, I informed the mother and the father, who both appeared without legal representation, that I had no intention of hearing and determining all of their contravention applications as I just did not have the time available to do so. I had another contravention hearing with unrepresented parents listed to start two hours later in the morning.  

4. I invited the parents to consider discontinuing their applications as the factual content would, no doubt, all be considered in the trial that would come in the fresh parenting proceedings that are now underway. The mother told me she was prepared to take that course. The father told me that he was not and that he wanted to press at least two alleged contraventions. I told him I would hear the two he chose to prosecute. I then also invited the mother to choose two alleged contraventions to prosecute and I would hear them at the same time. She agreed. Each agreed to formally discontinue all of the other contravention applications and I pronounced accordingly with formal acknowledgment of that.

5. The hearing proceeded and at its conclusion I found that the mother contravened without reasonable excuse a primary order that I considered required her not to take the children or any of them to a paediatrician without the father’s agreement as to the identity of that paediatrician or, absent his agreement, as nominated by the Independent Children’s Lawyer (“the ICL”). I also found her to have contravened without reasonable excuse a primary order that required her to sign passport applications for the children.

6. The mother has previously been found to have contravened that particular order obliging her to sign passport applications for the children. Indeed, she told the Court during the hearing that regardless of the outcome of the contravention application she would still not sign passport applications for them and would disobey any order made by me as a consequence of my finding against her in these contravention proceedings. I will return to that issue.

7. I also found the father contravened without reasonable excuse a primary order that required him to return the children to the mother on a Sunday afternoon at the end of a school holiday period. Additionally, I found that he contravened a primary order conferring equal shared parental responsibility on him and the mother when he unilaterally had their daughter’s ears pierced without the mother’s knowledge and consent.

The Father’s position and the Mother’s position

1. At the commencement of the hearing I asked each of the parents what consequences each wanted the Court to visit upon the other in the event of findings of contravention without reasonable excuse.

2. The father told the Court that he wanted the Court to impose a fine on the mother. He did not mention anything else, though in his application he had sought some variation to the existing primary orders. 

3. The mother said that she sought a variation to the existing primary orders.

4. At the end of the hearing, after I had made my determination that each of the parents had contravened the primary orders without reasonable excuse, unsurprisingly the father did not press for the mother to be fined. He submitted that the primary order should be varied such that the school holidays be more particularly defined so that it is entirely clear to each of the parents how to calculate the time the children spend with each parent during any particular school holiday period. He also submitted that the primary order should be varied such that the father be authorised to apply for passports for the children without the requirement for the mother to sign the applications.

5. There is, in my judgment, merit in those submissions of the father.

6. The mother agreed that the school holidays should be more particularly defined so that the parents can readily work out when the children are to spend time with the father. She also submitted that the father should be required to attend and complete a parenting orders program as he has not ever done such a program or course. There is, in my judgment, also merit in the mother’s submissions.

How the Contraventions are to be dealt with

1. Part VII Division 13A of the Family Law Act 1975 (Cth) includes provision empowering the Court to vary a primary parenting order in circumstances such as this (see s 70NBA). However, if the Court finds that Subdivision F of Division 3A applies to a contravention committed by a parent, the Court must take into account any of the matters set out in s 70NBA(2) that may be relevant, in addition to having regard to the best interests of the children as the paramount consideration.

2. Subdivision F of Division 13A applies in certain circumstances. It is headed “Contravention without reasonable excuse (more serious contravention)”. Relevantly, it applies if “a Court has previously … made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order.”

3. In this case, the mother has previously been found to have committed a contravention of the same primary orders that I found her to have contravened. In particular, as already observed, she was previously found by Judge Demack to have contravened the order that obligated her to sign passport applications for the children. Judge Demack did take action in respect of that contravention. She made orders varying the primary order and those orders, as varied, still required the mother to sign passport applications for the children as may be presented to her by the father.

4. Section 70NFA(4) confers a discretion on the Court to deal with the contravention under Subdivision E if satisfied that it is more appropriate. Subdivision E is headed “Contravention without reasonable excuse (less serious contravention)”.  Section 70NEA(4) confers a discretion on the Court to deal with a contravention under Subdivision F (even if it could be dealt with under Subdivision E pursuant to other pre-conditions being satisfied) where the Court is satisfied the contravening parent behaved in a way that showed a serious disregard for his or her obligations under the primary order. My consideration of those subsections satisfies me that contraventions are to be dealt with under Subdivision F, whether the contravening parent has been found to have committed contravention of the same primary order before or not, where the person committing the contravention did so “in serious disregard for his or her obligations under the primary order”.

5. In this case, I am satisfied that the mother committed the contravention of the primary order that required her to sign passport applications for the children in serious disregard for her obligations to do so. She claimed she had reasonable excuse but I did not accept that. She consented to the order when she was legally represented by solicitor and counsel. With respect to the mother, I do not accept her assertion that she was “bullied” into consenting by the ICL who was then in the matter and the barrister that ICL had engaged is. If, at some later point in time, she changed her mind about the order being in the best interests of the children she should have brought an application to vary or discharge the order rather than simply wilfully refuse to comply with it. Accordingly, I consider Subdivision F applies to that contravention.

6. I also consider that the mother’s contravention of the order that required her only to take the children, or any of them, to a paediatrician agreed upon with the father or as determined by the ICL was committed in serious disregard for her obligation under the orders. Her obligation was clear. She was required to get the father’s agreement in respect to any paediatrician she was taking the children to or, failing agreement, it was for the ICL to determine the particular paediatrician to take the children to. There can be no mistake about that. The mother complains and brings contravention proceedings against the father for his breach of an obligation to get her agreement on a decision that required her agreement, yet she proceeded to take one of the children to a paediatrician without the father’s agreement when the order prohibited that. I consider that to be a serious disregard by her of her obligations under the order. It must, accordingly, also be dealt with pursuant to Subdivision F.

7. As for the contraventions committed by the father, though he has not previously been found to have contravened the primary orders, I am satisfied that his contravention of the equal shared parental responsibility order was done in serious disregard for his obligations. As I found, in late 2014, the father wrote an email to the mother asking for her agreement to allow him to have their daughter’s ears pierced. He expressly told her that he was asking her for her agreement as he accepted that the decision to have the girl’s ears pierced was not an issue falling under her day to day care. Implicit in that assertion was his acceptance that it was a decision about a major long term issue pertaining to the care, welfare and development of the child. I consider he was correct about that. As I found, the mother clearly let him know that she did not agree.

8. In my judgment, having the ears of a child pierced is not a day to day care issue. It is an issue that goes to the health and long term care of the child. The father clearly understood that when he first asked the mother for her approval. Less than two years later, the father told the mother after he had caused the child’s ears to be pierced, that he had done so. He caused it to happen without the mother’s prior knowledge and consent and told her after it was done without any apparent regard to his previous acknowledgement that it was an issue about which he needed to get her agreement. The father told the Court he had changed his mind about it being a major long term issue but he gave absolutely no evidence about what it was that had caused him to change his mind. I was satisfied that he just wilfully disregarded the obligation to get the mother’s agreement as is required by s 65DAC of the Family Law Act 1975 (Cth).

9. As for his other contravention, it is quite clear that the primary order says that the school holidays cease as at 4:00 pm on the Sunday before school re-commences. The father did not return the children to the mother at that time at the end of his second half of the holidays despite the mother telling him in advance that is when she expected the children to be returned. He did not tell her the basis of his assertion that he considered himself entitled to hold the children over. He was wrong about that in any event, even if he truly believed it. If he did truly believe it, which I doubt, I do not accept that he had reasonable grounds to do so having regard to the wording of the primary orders. I am quite satisfied that the conflict that exists between the parents in this case adversely influences the way in which they read and interpret the primary orders, when, by an objective reading of the orders, their meaning is clear.

10. I am quite satisfied that the contraventions committed by the father were both committed in serious disregard of his obligations. Accordingly, they, too, are to be dealt with pursuant to Subdivision F of Division 13A.

The Powers of the Court

1. In addition to being able to vary the primary order if it considers it in the best interests of the children, the Court must, where Subdivision F applies, do something in relation to the person who committed the contravention. The Court has a choice of consequences as set out in s 70NFB(1) and then s 70NFB(2).

2. Pursuant to s 70NFB(1)(a), the Court must make an order under paragraph (2)(g) unless it is satisfied that it would not be in the best interests of the children concerned to make that order. Paragraph (2)(g) empowers the Court to make an order that the person who committed the contravention pay all of the costs of another party, or other parties, to the proceedings under this Division.

3. Neither parent had legal representation, so they did not incur costs that could be ordered to be paid by the other. However, the ICL appeared and sat through the entire three hours of the hearing. Sometimes ICLs do not appear at contravention hearings as they do not consider it necessary to be involved in them. On this occasion, the ICL appeared, though she took no active part in the prosecution or defence of the contravention applications. She did so as she is relatively recently appointed to the proceedings and considered it important to learn about the parents in the case. I considered that to be a reasonable position. She did not make application as such for costs and, at the time, I expressed my understanding for that position.

4. However, now, having considered the matter further, in particular my obligation to make an order under s 70NFB(1)(a) unless I am satisfied that it would not be in the best interests of the children concerned to make such an order, I am quite prepared to make an order that each of the parties pay half of the ICL’s costs of and incidental to her appearance at the hearing on Tuesday, 15 May 2018. I consider that there needs to be some form of consequence for each of the parents so as to signal to them the Court’s opprobrium at their serious disregard for the orders that they consented to. I am quite satisfied that it is in the best interests of the children in this case for their parents, in such a high conflict case that requires the presence and assistance of an ICL who is funded through the publicly provided resources of the Legal Aid Office of Queensland, to share equally in paying the costs of the ICL incurred in connection with the hearing of these contravention applications.  I will make an order that provides for that. My mandatory obligation to make an order pursuant to s 70NFB is satisfied thereby.

5. To be able to make an appropriate order in this respect, I had my Administrative Associate write to the ICL (copied to both parents) requesting her to provide the Court with the detail of the costs of her appearance. She responded by email, copied to both parents, informing the Court that her costs were $1,308.00. I consider it appropriate to order each parent to pay half of that amount, namely $654, directly to the Legal Aid Office Queensland within 28 days. I will so order.

The variation of the existing primary order

1. The evidence satisfied me that the parents have been in fierce disagreement about school holiday time that the children are to spend with each of them. As I have observed, only the high conflict between them can explain that, as the existing orders are easily read and understood. I will discharge paragraphs 8 and 9 of the primary order and replace them with orders that, in my judgment, better define the school holidays and should make it less likely that there will be disputes between them about this issue.

2. One of the father’s complaints was centred around the holidays being defined as ending on the Sunday before school starts when (as occurred in the September/October school holidays in 2015) school sometimes starts back in the next term on a Tuesday after a Public Holiday on the Monday. The mother, as was her right under the primary order, maintained then that the children were to be returned to her on the Sunday at 4:00 pm. The father unilaterally held them over to the Monday, wrongly asserting that he had the right to do that.

3. I consider that it would be appropriate and in the children’s best interests for the whole holidays to be included when determining what days make up the half of the holidays that they are to spend with each parent. I am also satisfied that when the children stay with the father for the second half of the school holidays that there is, as things currently stand, no good reason why they should have to return to the mother’s home a day or two before school recommences.

4. The primary order, made by consent, provides for the children to spend alternate weekends with the father during school term and they stay with him from after school on Thursdays until school starts on Tuesdays. Accordingly, they are well accustomed to going to school from the father’s home. I am satisfied that they could do that at the end of school holidays as well. This principally reduces the need for the parents to come into each other’s presence at a handover of care at the end of the holidays. In this case, from the evidence I have seen, I am satisfied that the fewer occasions the parents come into contact with each other the better for the children, as it reduces their direct exposure to the parental conflict.

5. The orders I will make to replace the relevant paragraphs in the primary orders will, as I told the parties at the hearing, define the school holidays as commencing from the formal end of school on the last day of school term and ending at the formal commencement of school on the first day of school term. They will also deal with circumstances where the mid-point of those holidays falls during the evening or night time, so that a handover is scheduled at a reasonable hour of the day.

6. I will also vary the primary orders by deleting paragraph 37 that requires the mother to sign passport applications for the children. There is no point leaving that order in place, in my view, as the mother told the Court she had no intention of signing passport applications for the children. In my judgment, that can readily be overcome in order to achieve the outcome provided for in the orders the parties consented to.

7. Section 11(1) of the Australian Passports Act 2005 (Cth) provides that the Minister must not issue an Australian travel document to a child unless:

   (a)each person who has parental responsibility for the child consents to the child having an Australian travel document; or (my emphasis)

   (b)an order of a court of the Commonwealth, a State or a Territory permits:

   (i)the child to have an Australian travel document; or

   (ii)the child to travel internationally; or

   (iii)the child to live or spend time with another person who is outside Australia.

8. The existing order providing for the parents to have equal shared parental responsibility for the children has required, to this time, the consent of each of them for the issue of Australian passports to the children. However, s 11(1)(b) clearly provides that Australian passports can be issued to the children if an order of this Court permits it. Accordingly, I will make an order that permits it without the mother’s consent.

9. The mother told the Court that she and the father had each been previously ordered to do a parenting course and that she had done one but the father had not. She submitted that he should be ordered to do one.

10. The father told the Court in response, that whilst he had never done a parenting course he had done what the Court ordered him to do. He said the Court order had required him to make enquiries about doing a parenting course and, if assessed by the provider as suitable for the course, to do it. He said that he had done what was required of him but that the provider of the course had found him not to be suitable to undertake the course so he did not undertake it. Whilst he did not volunteer to do one, he told the Court that he would do such a course if the Court ordered him to.

11. Given that I have found he committed contraventions with serious disregard to his obligations under the primary order, I am satisfied that he should undertake a parenting program such as the Parenting Orders Program (“the Program”) offered to parents in post-separation, post-court orders situations to help promote co-parenting in this context. F Group offers such programs.  I will make such an order requiring the father to commence the enrolment process within a few weeks and to complete the Program by the end of February next year. I will give him that long as I know there can be waiting times before a parent can get into the Program. He will have to provide the mother and the ICL with documentary proof of completion.

12. As the father told the Court that he was not considered suitable for such a program on a previous occasion, I will require him to immediately notify the mother and the ICL if he is not accepted into the Program because he is considered to be unsuitable and I will require him to provide each of them with a copy of any written reasons that are given to him explaining that decision. I shall also require him to immediately notify the Judicial Services Manager of this Registry so that she can bring the matter to my attention so that I can consider listing the matter for further mention, with a view to possibly ordering the father to undertake one-on-one private counselling that would provide him with a similar service to the Program. Such private counselling would, of course, be more expensive.

13. As I found that Subdivision F applies to all four of the contraventions I found these two parents to have committed, I must consider the provisions of s 70NBA(2) when considering varying the primary order. Those provisions include, relevantly to this case, circumstances where the person who committed the contravention did so after having attended or after having been found to be unsuitable to take any further part in, a post-separation parenting program or a part of such a program. In this case, the mother committed contraventions after having attended such a program and the father committed contraventions after having been found to be unsuitable to attend such a program.

14. Having considered those facts, I am fortified in my view that the orders I propose to make varying the primary order should be made. I will make them.

15. I make the orders set out at the commencement of these reasons.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 24 May 2018.

Associate:

Date:  24 May 2018