Bircher & Bircher - [2022] FedCFamC1A 59

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bircher & Bircher [2022] FedCFamC1A 59

Appeal from: Bircher & Bircher [2021] FedCFamC1F 168

Appeal number(s): NAA 58 of 2021

File number(s): BRC 1459 of 2011

Judgment of: ALDRIDGE, BENNETT & HOWARD JJ

Date of judgment: 11 May 2022

Catchwords: FAMILY LAW – APPEAL – CONTRAVENTION APPLICATION – Appeal against findings by the primary judge that three counts of contravention of parenting orders were established without reasonable excuse – Where the contraventions included the appellant retaining the children over the school holidays, denying the respondent contact on a child’s birthday and not obtaining consent prior to taking the children to medical appointments – Defence of reasonable excuse – Allegation of earlier breach of orders by respondent not a reasonable excuse for subsequent breach by appellant – Where the findings were open on the evidence – No merit in any ground of appeal – Appeal dismissed – No orders for costs made.

Legislation: Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NAF, 70NBA

Cases cited:
Childers and Leslie (2008) FLC 93-356; [2008] FamCAFC 5

Gaunt and Gaunt (1978) FLC 90-468; [1978] FamCA 97

Number of paragraphs: 66

Date of hearing: 1 April 2022

Place: Brisbane (via video link), delivered in Adelaide

The Appellant: Self-represented litigant

The Respondent: Self-represented litigant

ORDERS

NAA 58 of 2021
BRC 1459 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS BIRCHER

Appellant

AND:
MR BIRCHER

Respondent

ORDER MADE BY:

ALDRIDGE, BENNETT & HOWARD JJ

DATE OF ORDER:

11 MAY 2022

THE COURT ORDERS THAT:
1.The mother’s Notice of Appeal filed on 3 November 2021 be dismissed.
2.There be no order as to costs.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bircher & Bircher has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, BENNETT & HOWARD JJ:
INTRODUCTION

This is an appeal against the decision of the primary judge on 28 October 2021 that Ms Bircher (“the mother”) had contravened a parenting order in three respects. The mother and Mr Bircher (“the father”) have three children; B born in 2007 (15 years old), C born in 2008 (13 years old) and D born in 2009 (12 years old). The relevant parenting orders were made by Carew J on 27 November 2019 (“the parenting orders”).
The father filed a contravention application on 24 May 2021 alleging that between 30 January 2020 and 1 January 2021 the mother contravened the parenting order…

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 Bircher & Bircher

Details

AGLC: Bircher & Bircher [2022] FedCFamC1A 59
Case: [2022] FedCFamC1A 59
Decision Date: 11 May 2022

CaseChat Overview and Summary

The mother appealed against findings by the primary judge that three counts of contravention of parenting orders were established without reasonable excuse. The contraventions included the mother retaining the children over the school holidays, denying the father contact on a child’s birthday and not obtaining consent prior to taking the children to medical appointments. The mother alleged that the father had breached parenting orders by providing the children with alcohol and allowing them to stay out late on a number of occasions, which she claimed constituted a reasonable excuse for her subsequent breaches. The mother’s appeal was dismissed.
The court considered whether there was any merit in the mother’s grounds of appeal. The court found that the primary judge’s findings were open on the evidence. The court rejected the mother’s argument that the father’s alleged breaches of parenting orders constituted a reasonable excuse for her subsequent breaches. The court found that the mother had not demonstrated any causal connection between the father’s alleged breaches and her own contraventions of the parenting orders. The court concluded that there was no merit in any of the grounds of appeal.

The mother’s appeal was dismissed and there was no order as to costs. The mother had not succeeded on any ground of appeal, and neither party sought any order as to costs. Therefore, the appeal was dismissed and there was no order as to costs. The orders of the court were that the mother’s Notice of Appeal be dismissed and there be no order as to costs.

Orders

Orders of the court

NAA 58 of 2021

BRC 1459 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS BIRCHER

Appellant

AND:

MR BIRCHER

Respondent

ORDER MADE BY:

ALDRIDGE, BENNETT & HOWARD JJ

DATE OF ORDER:

11 MAY 2022

THE COURT ORDERS THAT:

1. The mother’s Notice of Appeal filed on 3 November 2021 be dismissed.

2. There be no order as to costs.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As a result, Ground 3 must also be dismissed.CONCLUSION AND COSTS As the mother has not succeeded on any ground of appeal the appeal must be dismissed. In the mother’s Notice of Appeal, she sought an order that the father pay her costs of the appeal. At the hearing of the appeal we enquired of the parties whether either sought any order as to costs and were informed that they did not. Therefore there will be no order for costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NAA 58 of 2021 BRC 1459 of 2011
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS BIRCHER Appellant
AND:	MR BIRCHER Respondent

Appeal from:		Bircher & Bircher [2021] FedCFamC1F 168
Appeal number(s):		NAA 58 of 2021
File number(s):	BRC 1459 of 2011
Judgment of:	ALDRIDGE, BENNETT & HOWARD JJ
Date of judgment:	11 May 2022
Catchwords:	FAMILY LAW – APPEAL – CONTRAVENTION APPLICATION – Appeal against findings by the primary judge that three counts of contravention of parenting orders were established without reasonable excuse – Where the contraventions included the appellant retaining the children over the school holidays, denying the respondent contact on a child’s birthday and not obtaining consent prior to taking the children to medical appointments – Defence of reasonable excuse – Allegation of earlier breach of orders by respondent not a reasonable excuse for subsequent breach by appellant – Where the findings were open on the evidence – No merit in any ground of appeal – Appeal dismissed – No orders for costs made.
Legislation:	Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NAF, 70NBA
Cases cited:	Childers and Leslie (2008) FLC 93-356; [2008] FamCAFC 5 Gaunt and Gaunt (1978) FLC 90-468; [1978] FamCA 97
Number of paragraphs:	66
Date of hearing:	1 April 2022
Place:	Brisbane (via video link), delivered in Adelaide
The Appellant:	Self-represented litigant
The Respondent:	Self-represented litigant

ORDER MADE BY:	ALDRIDGE, BENNETT & HOWARD JJ
DATE OF ORDER:	11 MAY 2022