Bircher and Bircher

[2014] FamCAFC 154

FAMILY COURT OF AUSTRALIA

BIRCHER & BIRCHER [2014] FamCAFC 154

FAMILY LAW – APPEAL FROM A DECISION OF A FEDERAL CIRCUIT COURT JUDGE – CONTRAVENTION – Where the trial judge found that the mother had contravened parenting orders on one occasion by failing to deliver the children to the father’s residence on time – Where the mother argued reasonable excuse on the basis that the parties had agreed that the children’s time with the father would commence half an hour later – Where the mother relied upon an annexure to her affidavit which the judge did not refer to in her Honour’s reasons – Discussion of principles relating to errors of fact by reference to De Winter v De Winter (1979) 4 Fam LR 583 – Appeal allowed – The matter be remitted to the trial judge for rehearing.

Family Law Act 1975 (Cth)
Family Law Regulations 1984 (Cth)

De Winter v De Winter (1979) 4 Fam LR 583

House v The King (1936) 55 CLR 499
Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542

APPELLANT: Ms Bircher

RESPONDENT: Mr Bircher

FILE NUMBER: BRC 1459 of 2011

APPEAL NUMBER: NA 18 of 2014

DATE DELIVERED:: 25 August 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: May J

HEARING DATE: 25 August 2014

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 19 March 2014

LOWER COURT MNC: [2014] FCCA 971

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Appeared in person

SOLICITOR FOR THE RESPONDENT: Appeared in person

Orders

1. The mother’s application in an appeal filed 8 July 2014 be allowed.

2. The appeal against paragraph (a) of Judge Demack’s order of 19 March 2014 be allowed.

3. The matter, confined to count 1 of the father’s amended contravention application filed 13 March 2014, be remitted to Judge Demack for rehearing.   

4. There be no order as to costs.

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).

THE APPELLATE JURISDICTION THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 18 of 2014
File Number: BRC 1459 of 2011

Ms Bircher

Appellant

And

Mr Bircher

Respondent

REASONS FOR JUDGMENT

1. By way of notice of appeal filed 9 April 2014, Ms Bircher, (“the mother”) appeals paragraph (a) of orders made by Judge Demack on 19 March 2014, which provided that the mother had contravened certain parenting orders by failing to facilitate contact between the children and the father on 7 August 2013.

2. Mr Bircher (“the father”) opposes the appeal.

3. I heard the appeal as a single judge pursuant to a direction issued by the Chief Justice on 27 June 2014 under s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).

Is leave necessary

1. The mother’s notice of appeal seeks leave to appeal. Subsection 94AA(1) of the Act sets out a table of circumstances where leave to appeal is required before an appeal may lie to the appellate jurisdiction of this court, which is described as “a prescribed decree”.

2. Regulation 15A(1) of the Family Law Regulations 1984 (Cth) defines a prescribed decree as an interlocutory decree; however a decree in relation to a child welfare matter is expressly excluded from the requirement of leave to appeal. A child welfare matter is further defined as being matters relating to where a child is to live or with whom a time is to spend time, or any other aspect of parental responsibility within the meaning of Part VII of the Act.

3. The father’s amended contravention application filed 13 March 2014 was brought pursuant to the provisions of Division 13A of Part VII of the Act, being an allegation that the mother had contravened orders affecting children. Thus, it may be seen that the judge’s order of 19 March 2014 was a decree relating to a child welfare matter, namely, the contravention of a parenting orders. As such, the mother does not require leave to appeal.

The mother’s application in an appeal

1. On 8 July 2014 the mother filed an application in an appeal seeking relief from providing the whole of the transcript of the proceedings on 19 March 2014. Contemporaneously with that application, the mother filed an extract of the transcript, being some 24 lines of exchange between the judge and the mother. In an affidavit filed in support of the application, the mother deposed to be unable to afford the cost of production of the full transcript and had provided the relevant portion of the transcript, the balance being irrelevant to the appeal.

2. The father opposed the mother’s application, submitting that the full transcript was necessary as it would demonstrate that the mother was provided an opportunity to produce evidence regarding a reasonable excuse for the contravention and failed to do so. 

3. In Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542, the Full Court, when considering an application for the Court to provide a transcript, considered at [15] that

   … a complete transcript may not be necessary for the prosecution of an appeal. Deciding this requires an examination of other factors relevant to the interests of justice in the particular case and more broadly.

4. The cost of providing a transcript would be a significant financial burden for the mother. Given the narrow scope of the appeal, it appears that this is such a matter where a full transcript of the proceedings is not necessary to determine the appeal. The application should be allowed.

The appeal

1. On 3 June 2011 Federal Magistrate Demack (as her Honour was then) made parenting orders by consent relating to the parties’ three young children. Relevantly, paragraph 3(a)(i) of those orders provided that, failing agreement between the parties, the children shall spend time with the father on Wednesday between 5:30 pm and 7:30 pm in weeks one and two. The orders further provided that the children would spend time with the father from 5:30 pm Tuesday until 8:00 am Wednesday in week 3, and in week four on Wednesday between 5:30 pm and 7:30 pm again.

2. The father’s contravention application alleged nine contraventions of those orders and one contravention of certain parenting orders made 2 August 2013 which I will not refer to. The judge found on a prima facie basis that the mother had contravened several of the orders, including count 1 as alleged by the father, and then correctly turned to consider whether a reasonable excuse had been proffered by the mother for those contraventions on the balance of probabilities.

3. The judge made the following findings:

   15.Count 1 is with respect to 7 August 2013, which relates to order 3a(i) of the parenting order of 3 June 2011 which read:

   That the children shall spend time and communicate with the father as agreed and arranged between the parties and failing agreement in week one and two Wednesday between 5:30 pm and 7:30 pm.

   16.The children were not presented to the father at 5:30 pm.  Another order requires that is how the transport be attended to.  Order 4 provides that the mother will deliver the children and collect the children from the father’s residence in week 1, and it seems agreed that that was week 1.  The mother says that the parents had agreed between themselves in June that year that the time would commence at 5 and conclude at 7.  The mother does not take me to any paragraph which sets out that arrangement but just simply says, in the paragraph that she has referred me to that she relied upon for the purpose, that it was simply agreed to on or about 15 June.

   17.The date in question, 7 August, was five days after the parties had been in court on a contravention hearing before a Registrar.  At that point in time, some make-up time was ordered with respect to time the father had earlier lost.  No changes were made to the order.  There is no evidence before me, save for the mother’s assertion that the agreed time had changed.  The mother’s own evidence is that she left the father’s home at 5.25 and therefore did not present the children at 5.30.  There were no matters with respect to the health or safety of the children.  I am satisfied that is not a reasonable excuse and I find the mother has contravened the first of those alleged in count 1.

   (Emphasis added)

4. The mother submits that she referred the judge to [44], [45] and annexure 8 of her affidavit filed 25 February 2014. The excerpt of the transcript from the proceedings supports that assertion. Paragraph [44] of the mother’s affidavit discusses an agreement between the parties that the time the children spend with the father be changed from 5:30 pm – 7:30 pm back to 5:00 pm – 7:00 pm. The conclusion of the paragraph refers to annexure “NFB10”, which appears to be an email from solicitors then acting for the mother to the father, and certain SMS text messages exchanged between the parties. The mother contends that the judge was in error when finding at [16], set out above, that the mother did not take the judge to any material that set out the arrangement.

Discussion

1. The principles in relation to errors of fact are well known and best summarised in the decision of De Winter v De Winter (1979) 4 Fam LR 583 where Gibbs J said at p 588 after referring to House v The King (1936) 55 CLR 499 that:-

   It is apparent from this statement, and is clear law, that a discretionary judgment which is based on a mistake of fact will not be upheld merely because the result reached in itself does not appear unreasonable or unjust. In Storie v Storie (1945) 80 CLR 597, both Latham CJ, at p 600, and Rich J, at p 604, cited from the judgment of Viscount Simon LC in Blunt v Blunt [1943] AC 517 at 526 ; [1943] 2 All ER 76 at 79: “If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal. In such a case the exercise of discretion might be impeached, because the court's discretion will have been exercised on wrong or inadequate materials. …” There are many other authorities, from Young v Thomas [1892] 2 Ch 134 at 137 to Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627, that recognize that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may, in some cases, appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error. But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which has proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary judge.

2. It appears that the judge simply missed the material that the mother referred to in her affidavit. No criticism is made of the judge, this being a matter with an enormous amount of material and, significantly, substantially more important matters that required the judge’s attention.

3. No doubt the evidence relied upon by the mother is controversial and will be contested by the father. It is impossible to say whether, with the material referred to by the mother being brought to the attention of the judge, the contravention will stand or a reasonable excuse be found. As such, I will remit the matter to Judge Demack for rehearing. For the benefit of the parties, I record that the remission relates solely to count 1 of the father’s amended contravention application, being the alleged contravention of paragraph 3(a)(i) of the 3 June 2011 orders on 7 August 2013.

Costs

1. At the conclusion of the hearing I enquired as to whether the parties wished to make any application as to costs. Both parties having appeared in person, no application was made.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 25 August 2014.

Associate: 

Date:  25 August 2014