Bircher & Bircher
[2022] FedCFamC1A 59
•11 May 2022
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 2011FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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 on five different occasions.
At the first instance hearing on 27 August 2021 the primary judge found that the father had not established a prima facie case in respect of two of the five counts of alleged contravention and dismissed those counts. The primary judge reserved her decision in relation to the balance of the father’s contravention application.
On 28 October 2021 the primary judge delivered her decision on the remaining three counts of alleged contravention. The primary judge found the contraventions were established without reasonable excuse. The notation records:
4.The [mother], without reasonable excuse, contravened the orders made on 27 November 2019 by failing to provide the child C, born in 2008, to her father on 1 January 2021 such that she spent seven (7) nights less with him during that school holiday period than she should have pursuant to the orders.
5. The [mother], without reasonable excuse, contravened the orders made on 27 November 2019 by failing to ensure that the children spent time with their father between 3.00 pm and 7.00 pm on 30 January 2020 [...]
6.The [mother], without reasonable excuse, contravened the orders made on 27 November 2019 by taking the children to a dentist on 2 September 2020 and an optometrist and, in doing so, behaved in a way that showed a serious disregard of her obligations under the orders made on 27 November 2019 which restrained her from taking the children to any appointments with any medical practitioner, therapist or allied health professional unless the father agreed in writing beforehand.
By way of consequence for the three counts of contravention which were established, the primary judge ordered:
1. Pursuant to s 70NEB(1)(b) of the Family Law Act 1975 (Cth), the child C, born in 2008, shall, in addition to the time she will spend with him pursuant to the terms of the order made on 27 November 2019, spend an additional seven (7) consecutive nights in her father’s care during the June/July school holidays in 2022, so as to compensate the father for the time that she did not spend with him during the December 2020/January 2021 school holidays.
2. Pursuant to s 70NFB(2)(d) of the Family Law Act 1975 (Cth), the [mother] is fined $600.00 and shall pay that fine of $600.00 to the Registry Manager of the Brisbane Registry of the Federal Circuit and Family Court of Australia (Division 1) by 4.00 pm on Friday, 22 April 2022.
THE APPEAL
By Notice of Appeal filed on 3 November 2021, the mother appeals Orders 1 and 2, and also Notations 4, 5, and 6 of the order made on 28 October 2021.
Notations 4, 5 and 6 merely summarise the outcome of the successful contravention applications and thus cannot be appealed. The operative orders are therefore Orders 1 and 2.
The primary judge also varied the parenting orders pursuant to s 70NBA of the Family Law Act 1975 (Cth) (“the Act”) but the mother makes no complaint in that regard.
The grounds of appeal are as follows:
1. The [primary judge] erred in failing to properly consider the evidence provided, that the Father did spend half of the 2020/2021 school holidays with [C], and thereby [the primary judge] made a decision that was plainly wrong.
2. The [primary judge] erred in failing to properly consider the evidence provided, that the Mother was supposed to have this time with the children that she has been contravened on, and thereby [the primary judge] made a decision that was plainly wrong.
3. The [primary judge] erred in failing to properly consider the evidence provided, that the Father was not attending to his responsibility regarding the children’s health and there was a health concern for the children that the Mother responded to, and [the primary judge] made a decision that was plainly wrong.
The grounds of appeal relate only to the primary judge’s determination that the three counts of contravention were established. They do not allege that the penalties were excessive.
Each party filed a detailed Summary of Argument[1] upon which they relied. Neither wished to augment their summary with oral submissions.
[1] The mother’s Summary of Argument was filed on 27 January 2022. The father’s Summary of Argument was filed on 18 February 2022.
For the reasons which follow, we are of the view the appeal should be dismissed.
GROUND 1 OF THE APPEAL & COUNT 1 OF THE CONTRAVENTION
Ground 1 is solely concerned with the primary judge’s findings in relation to Count 1 of the contravention.
By Count 1 of the contravention application filed 24 May 2021, the father alleged that on 1 January 2021 at 10.00 am at Chambers Flat and in contravention of Order 6 of the parenting orders, the mother undertook deliberate action to refuse to allow the father to spend time with their daughter, C, for one week and one hour past the school holiday midpoint and did so without reasonable excuse.
The primary judge noted Orders 4 and 6 of the parenting orders as the orders allegedly contravened and stated[2]:
[2] At [8]–[11].
8.I accept that the father emailed the mother on 3 December 2020 to seek her agreement about the calculated midpoint for the upcoming end of Term 4, 2020 school holidays. I accept that, on 29 December 2020, the mother replied to confirm her agreement that 1 January 2021 was the midpoint of those school holidays. I also accept that the mother advised the father that, whilst she would provide the boys to him for them to go into his care at 5.00 pm that day, she intended to retain C in her care until 6.00 pm on 8 January 2021. I accept that, on 31 December 2020, the mother reiterated her position in relation to C’s time with her father during these school holidays.
9. I accept that the mother retained C in her care until 6.00 pm on 8 January 2021.
10. Having regard to the evidence before me:
(a)I am persuaded to the requisite standard[3] that the mother intentionally failed to provide C to spend half of the end of Term 4, 2020 school holidays with her father; [4] and
(b)I am not persuaded that the mother’s actions amounted to her making a reasonable attempt to comply with the relevant terms of the November 2019 orders; [5] and
(c)I am persuaded that the mother contravened the November 2019 orders on 1 January 2021 by not providing C to her father that day so that she could spend half of that school holiday period with him in accordance with the terms of the November 2019 orders.
11.The mother’s evidence included that she had retained C in her care because she alleged the father had, without justification under the November 2019 orders, previously withheld C from her. Even if this was the case, I am not persuaded that “evening the score” constitutes a reasonable excuse for contravening the terms of the November 2019 orders. I am not persuaded, on the balance of probabilities,[6] that the mother had a reasonable excuse for contravening the November 2019 orders on 1 January 2021 – I am not persuaded that the contravention was because or substantially because the mother did not at that time understand the obligations imposed by the November 2019 orders on her and I do not accept that the mother believed on reasonable grounds that retaining Cloe in her care until 8 January 2021 so that she did not spend half of that school holiday period with her father was necessary to protect C’s health or safety.[7]
[3] Family Law Act 1975 (Cth) s 70NAF(1).
[4] Family Law Act 1975 (Cth) s 70NAC(a).
[5] Family Law Act 1975 (Cth) s 70NAC(a).
[6] Family Law Act 1975 (Cth) s 70NAF.
[7] Family Law Act 1975 (Cth) ss 70NAE(1) and (5).
Under Ground 1 and in her Summary of Argument, the mother alleges that the primary judge erred in her assessment of the evidence in relation to the first count of the contravention application and came to a conclusion that was plainly wrong. We do not agree.
In May 2020, C was assessed by a surgeon for surgery. On 1 June 2020 the surgeon wrote to C’s general practitioner recommending surgery and stated, inter alia, “I have referred C to [a specialised] clinic at the [X] Hospital and I aim to see her there within the next few months and make arrangements for her to have her surgery”[8]. On 17 June 2020, the father forwarded a copy of the specialist’s letter dated 1 June 2020 to the mother. On Friday 27 November 2020, the children were dropped off to school in the morning by the mother and were to reside with the father until the conclusion of school on Friday, 4 December 2020. The mother was entitled to the first half of the long summer school vacation in December 2020/January 2021. On 28 November 2020 at 7.16 pm, the father sent an email[9] to the mother which, omitting formal and irrelevant parts, read:
As you are aware, [C] was assessed by [Dr T] as requiring a …surgical procedure …for the untreated fracture for 1 July 2017.
At short notice she underwent this procedure on Friday 27 November 2020. The procedure went as planned. Naturally [C] is under pain management now.
Pursuant to Parenting Order (34) attached is a contemporaneous letter stating [C] is to remain in my care until a post-operative review.
I have told [C] that she is allowed to speak to you at any time. As her pain level is still high, she asked for tomorrow night. Therefore, if you so [wish], please telephone my mobile at Sunday 6 pm 29 November to talk with [C].
[C] and I will assess each day whether she will attend school. We will make all efforts to attend her School Graduation on Wednesday night.
Finally, I will inform you of [C]’s progress at her two-week post-operative review.
(Emphasis removed)
[8] Father’s affidavit filed 24 May 2021, Tender Bundle A, p.5.
[9] Father’s affidavit filed 24 May 2021, Tender Bundle A, p.7.
The attached undated correspondence was a letter from a doctor of the X Hospital in the specialised clinic[10] which, omitting formal and irrelevant parts, read:
[C] was admitted to [X] Hospital for a …surgical procedure on the 27/11/20 and discharge[d] the following day. She will need to be cared for over the next two weeks as her wounds heal.
We will review her in 2 weeks’ time to assess how she is progressing post operatively.
As her father, Mr [Bircher], has been awarded sole custody of her health decisions, it is important that [C] remains with her father at least until her wound review in two weeks’ time.
Thank you for your understanding.
If you have any further questions, please do not hesitate to contact me.
(As per the original)
[10] Father’s affidavit filed 24 May 2021, Tender Bundle A, p.8.
On 3 December 2020, the father sent an email to the mother seeking agreement about a precise date for the mid-point December/January holiday changeover of the children pursuant to Order 4 of the parenting orders. C attended the last week of school. The boys went to reside with the mother at the conclusion of school on 4 December 2020 in accordance with the parenting order, however the father retained C at his residence until 11 December 2020. The boys returned to the father’s residence on 1 January 2021 (as provided for in the parenting orders) but the mother retained C and did not deliver C to the father until 8 January 2021. As far as the mother is concerned, her retention of C for seven days was justified because “[t]he Father then withheld C for the first week of the school holidays, 4th to 11th December 2020”.[11]
[11] Mother’s Summary of Argument filed 27 January 2021, paragraph 5.
By Ground 1 the mother asserts that the primary judge erred in finding, as appears at Notation 4 of the primary judge’s order, that “[the mother], without reasonable excuse, contravened the orders made on 27 November 2019 by failing to provide [C] to her father on 1 January 2021 such that she spent seven (7) nights less with him during that school holiday period than she should have pursuant to the [parenting orders]”. That conclusion of the primary judge also finds expression at [10(c)] of the primary judge’s reasons as “I am persuaded that the mother contravened the November 2019 orders on 1 January 2021 by not providing C to her father that day so that she could spend half of that school holiday period with him in accordance with the terms of the November 2019 orders”.
The mother contends that the father’s retention of C at his residence for the first week of the December/January 2020 school holidays, between 4 and 11 December 2020, counted as seven days of the December/January holiday which, when added together with the period for which C resided with her father after 8 January 2021, equates to one half of the December/January holiday period. Accordingly, the mother argues, it was incorrect for the primary judge to find that C “spent seven (7) nights less with [the father] during that school holiday period than she would have pursuant to the [parenting orders]” (Notation 4) or alternatively, that the father did not have C for one half of the holidays.
Whilst it may have been the intention of the parenting orders, in a general sense, to provide for the parties to share the school holiday period, it is necessary to consider the actual wording of the parenting orders when considering a contravention application. Order 4 of the parenting orders provided for C to spend the entirety of the second half of the December 2020/January 2021 holidays with the father. The order is in the following terms:
(4) During the December/January school holidays in each year the children live with the mother and father at all times as may be agreed between them in writing but failing agreement … and commencing in December 2020, with the mother in the first half of the school holidays and with the father in the second half …
It was agreed between the mother and the father in writing that the first half of the school holidays ended, and the second half of the school holidays began, on 1 January 2021. It is clear that the mother breached the terms of this order.
The mother’s defence is that the father nonetheless had C reside with him for an aggregate period equivalent to one half of the holidays even if he did not have the precise days provided for in the parenting order. At [11], the primary judge discusses whether the mother’s allegation that the father withholding C from her for the first week of the first half of school holidays, was a reasonable excuse for the mother contravening the parenting order. The primary judge concluded that it was not.
Whether the father’s retention of C for the first week of the December/January school holidays was appropriate is attended with some doubt. Order 34 of the parenting orders provides that each parent has day-to-day responsibility for the children, including when a child is “unwell”, unless a medical certificate is provided to the other parent “detailing the reasons why the children (or one of them) cannot move into the care of the other parent”. The father relies upon the undated letter from a doctor within the specialised clinic at X Hospital (extracted extensively at [17] of these reasons) as the medical certificate which details the reasons why C could not reside with the mother for the first week of the December/January school holidays. The only reason for C to remain in the care of her father, as referred to in that letter, is the doctor’s understanding that “her father, Mr [Bircher], has been awarded sole custody of her health decisions, it is important that C remains with her father at least until her wound review in two weeks’ time”. Self-evidently, no reason is provided as to why it was important that C remained with the father.
Section 70NAE(1) of the Act provides an inclusive definition of the phrase “reasonable excuse”. In Childers and Leslie (2008) FLC 93-356, Warnick J confirmed that the circumstances described in s 70NAE(1) of the Act are not the only circumstances in which reasonable excuse may be found. However, even if the father contravened Order 4 of the parenting orders, by retaining C until 11 December 2020, that lack of compliance and potential contravention of the orders does not entitle the mother, on the facts of this case, to over-hold C as she did, until 8 January 2021. If the mother alleges non-compliance with, or contravention of, an order, by the father she may invoke the court’s powers under Pt VII Div 13A of the Act (which relate to consequences of failure to comply with orders, and other obligations, that affect children) by making an application. A person against whom contravention of an order is alleged is entitled to the proper process of the court including, procedural fairness and the protections afforded to them under Pt VII Div 13A of the Act. It is not for one party to take these matters into their own hands and engage in self-help.
It is conceivable that a reasonable excuse may involve a reasonable belief held by one party concerning the effect of the other party’s failure to comply with an order. However, on the facts of this case, we are not persuaded that it was open to the mother to over-hold C and then claim that time as compensation for a previous wrongdoing on the part of the father. To accept such an argument would lose sight of the fact that parenting orders regulate the actions of parents for the benefit, protection and security of children. Viewed from the perspective of the child, the father’s actions deprived C of the company of her brothers and spending the first week of school holidays in the mother’s household. Then, as if that was not unfortunate enough, the consequence of the mother’s action was to replicate that situation in relation to the first week of the holiday period to which the father was entitled to have the children reside with him. Superficially, it was a tit-for-tat exercise as between the parents. In substance, however, the disruption and deprivation was doubled for C and would also have impacted her and her brothers, the three people whose interests the parenting orders are designed to protect and who are innocent of wrongdoing including non-compliance with, or contravention of, orders. On a more general level, self-help is not open to citizens when they believe another citizen has breached a court order or legal rule: the remedy always lies in an application to the courts who adjudicate upon such issues according to law.
There was no element of reasonable excuse in the mother’s actions. Withholding C from the father for seven days was a self-help remedy by the mother against him, for the father not having delivered C with her brothers on 1 January 2021: the remedy for the mother’s complaint was to bring an application in the courts.
In our view, the primary judge’s finding that the mother had failed to make out her case that she had a reasonable excuse for contravening the orders was a finding clearly open to the primary judge. The mother’s claims would, of course, be a significant factor when considering what consequential orders should be made as a result of the contravention, however there is no appeal with respect to the consequential orders that were made by the primary judge.
For these reasons Ground 1 must be dismissed.
GROUND 2 OF THE APPEAL & COUNT 2 OF THE CONTRAVENTION
Ground 2 solely concerns the primary judge’s findings in relation to Count 2 of the contravention.
By Count 2 of the contravention application, the father alleged that on 30 January 2020 at 3.00 pm at City Y and in contravention of Order 9 of the parenting orders the mother without reasonable excuse undertook deliberate action to refuse to allow the father to spend time with the children ...
The primary judge noted Order 9 of the parenting orders as the order alleged to have been contravened and stated[12]:
[12] At [18]–[19].
18.I accept that the mother removed each of the children from their respective schools before 3.00 pm such that none of them were at school when their father arrived to collect them for the purpose of spending time with them [...].
19. Having regard to the evidence before me:
(a)I am persuaded that the mother intentionally failed to comply with Order 9(a) of the November 2019 orders on 30 January 2020 by removing the children from their respective schools before 3.00 pm in order to prevent them from spending time with their father [...]; [13] and
(b)I am not persuaded that the mother’s actions amounted to her making a reasonable attempt to comply with the terms of order 9(a) of the November 2019 orders;[14] and
(c)I am persuaded that the mother contravened the November 2019 orders on 30 January 2020 by acting to prevent the children from spending time with their father that day [...]; and
(d)I am not persuaded, on the balance of probabilities,[15] that the mother had a reasonable excuse for contravening the November 2019 orders on 30 January 2020 – I am not persuaded that the contravention was because or substantially because the mother did not at that time understand the obligations imposed by the November 2019 orders on her and I do not accept that the mother believed on reasonable grounds that removing the children from school before 3.00 pm and ensuring that they did not have the opportunity to spend time with their father that day [...] was necessary to protect their health or safety.[16]
[13] Family Law Act 1975 (Cth) s 70NAC(a).
[14] Family Law Act 1975 (Cth) s 70NAC(a).
[15] Family Law Act 1975 (Cth) s 70NAF.
[16] Family Law Act 1975 (Cth) ss 70NAE(1) and (5).
In Ground 2 and her Summary of Argument, the mother alleges that the primary judge erred in finding that the children were residing with the father, rather than the mother on B’s birthday. His 13th birthday was his second birthday since the parenting orders were made. It was a school day. Order 9(a) of the parenting orders provides that the parent who does not have the children in their care on their birthday is to collect the children after school and return them to the parent with whom they are residing at 7.00 pm.
The father’s version is that he and the mother had reached a concluded agreement that the children would reside with the mother for 29 and 30 January 2020 in order to reduce the number of changeovers for the children consequent upon the commencement of the school term parenting arrangements and B’s birthday. The mother’s version is that where the children would reside on 29 and 30 January 2020 was only part of a larger proposal contemplated but never agreed upon. The mother contends that, because she and the father had not reached agreement about everything, there was no alteration to the parenting order and the children would remain residing with the father until the end of that week, including 29 and 30 January 2020.
By way of background, the father sent an email to the mother on Monday, 16 December 2019[17], stating, inter alia:
First week of School
The school holidays conclude for [C] and [D] on Wednesday 29 January 2020 and Thursday 30 January 2020 for [B]. These days are my first week for 2020. Therefore, by the Orders:
· On Wednesday 29 January 2020 I am to collect [C] and [D] from school and then collect [B] from your place- Order (3)(a), (14) and (15);
· On Thursday 30 January 2020 you are to collect all three children from school [...] and then I am to collect all three children at 7:00 pm from your place – Orders (3)(a), (9)(a), (14) and (15);
· On Friday 31 January 2020 you are to collect all three children from school as your week commences – Order (3)(b).
[17] Father’s affidavit filed 24 May 2021, Tender Bundle B, p.2.
Proposal in the best interests of our children
In the best interests of our children whilst reducing the number of transitions, I propose:
· On Wednesday 29 January 2020 you collect [C] and [D] from school and our children remain spending time with you this night;
· On Thursday 30 January 2020 I collect all three children from school [...] and then you collect at 7:00 pm from my place.
So, in the best interests of our children, I forego our children spending time with me for two nights (reducing two transitions) prior to another week with you and I spend time with our children for [B] birthday dinner instead of you.
(As per the original)
The mother responded on Saturday 28 December 2019[18], as follows:
I am happy to keep the children with me on Wednesday 29th and I suggest we share [...] Thursday 30th, so you have them until 5:30pm and I have them after that. Do you agree?
[18] Father’s affidavit filed 24 May 2021, Tender Bundle B, p.2.
The father replied on 14 January 2020[19], as follows:
I do not agree with your proposal for reduced time on [...]; the Parenting Orders are specific with respect to time with for (sic) our children’s [...]. I note you refused to cooperate for our children to spend time with me [...] in November 2019. Our children will be with you in both the morning before school and after 7 pm on [...], if you accept my original proposal.
[19] Father’s affidavit filed 24 May 2021, Tender Bundle B, p.5.
The mother did not respond. The father sent emails on 21 January 2020 and 23 January 2020 asking for a response and explained that he needed to coordinate his availability with his employer. On Monday, 27 January 2020 at 6.41 am the father sent the following email to the mother[20]:
As I am yet to receive a response from you in email or SMS, my position held is:
1.Our children will continue to live with you on Wednesday (29 Jan) and Thursday (30 Jan), as agreed by you via email dated 28 Dec 2019;
2.Our children will spend time with me from 3 pm Thursday 30 Jan [...] with me collecting them from their respective schools;
3.Our children will be ready for your collecting from my residence at 7 pm Thursday 30 Jan;
4.Our children will commence the week about living arrangements with you from Friday 31 Jan.
[20] Father’s affidavit filed 24 May 2021, Tender Bundle B, p.4.
The mother responded on Monday, 27 January 2020 at 9.54 am with “[p]lease re-read your emails, don’t just pick out what you want. I have not agreed to these and you will not negotiate, so please stop your controlling games”.[21]
[21] Mother’s affidavit filed 6 July 2021, Annexure 2, p.4.
On 30 January 2020, the father sent an electronic message to the mother saying that he would be collecting the children from school that afternoon in compliance with the parenting orders. The mother responded “No [you] will not, [you] have the only available option of picking them up from my place at 7pm tonight, as per the Orders. So let me know if [you] do or don’t want to do that”.[22] The mother collected B from his school at 1.48 pm, more than an hour before the end of school. The mother collected C and D from their school at 2.22 pm. In respect of both schools, the father found out from the school administration that the children had been collected.
[22] Mother’s affidavit filed 6 July 2021, Annexure 2, p.7.
The mother deposed:[23]
23.… I was concerned he would be physically and verbally aggressive and abusive, as has happened previously, so removed the children earlier than the finish time, so that it would not occur again. He should not be allowed to behave so badly, without repercussions. His Modus Operandi is to always manipulate situations and twist the small kernel of truth and present untruths so he doesn’t look bad for doing what he did, as well as use coercive control.
(As per the original)
[23] Mother’s affidavit filed 6 July 2021, paragraph 23.
There was the following exchange between the father and the mother during the father’s cross examination of the mother[24]:
[24] Transcript 27 August 2021, p.13 lines 19–40.
[THE FATHER]: … So, you are agreeing that on – on 30 January, that you collected our children from school before they finished school?
[THE MOTHER]: To prevent aggression, yes.
[THE FATHER]: No. You are agreeing that you picked up the children before the end of school?
[THE MOTHER]: Yes. To prevent aggression, yes.
[THE FATHER]: No, that’s not the question. The question is, did you collect the children before the end of school?
[THE MOTHER]: To prevent aggression, yes.
[THE FATHER]: Did you collect the children before the end of school?
[THE MOTHER]: That’s my answer.
HER HONOUR: I think it’s yes. It’s yes, isn’t it?
[THE MOTHER]: Yes.
[THE FATHER]: It’s a yes.
HER HONOUR: I mean, you say there’s a reason, and I presume you’re going to say to me in submission that that constitutes a reasonable excuse for your actions in collecting them. Am I - - -?
[THE MOTHER]: Yes.
HER HONOUR: - - - hearing where you’re going?
[THE MOTHER]: Yes.
HER HONOUR: All right, and I’m assuming [the father] is going to say to me it’s not. Okay.
However, the mother did not address the primary judge on any allegations as to the father’s aggressive behaviour of which she said impelled her to collect all the children early from school.
It was open to the primary judge on the evidence to find that the mother had adopted the father’s proposal by having the children reside with her for the last two school nights of the first week of school being 29 and 30 January 2020. Notwithstanding that the mother’s written communication of 30 January 2020 (extracted above at [40]) stated that she did not agree, the mother took possession of the children on both 29 and 30 January 2020 consistent with the father’s proposal that the children reside with her on those nights. As the children were residing with the mother, the father was entitled to have the children from after school until 7.00 pm on 30 January 2020 in accordance with Order 9(a) of the parenting orders.
It was conceded by the mother that she collected the children from school early to avoid seeing the father and to prevent the father from collecting the children at the conclusion of the school day. The mother’s statements about the father’s “aggression” lack the specificity necessary to have enabled the primary judge to be satisfied on a balance of probabilities that the mother was genuinely fearful. Importantly, the mother did not provide evidence as to why collecting the children from school early, unbeknownst to the father, was the only option reasonably available to her, such that the mother’s beliefs could have constituted a reasonable excuse within the meaning of s 70NAE(4) of the Act.
The finding of the primary judge that the mother did not have a reasonable excuse was a finding open to the primary judge on the evidence.
For these reasons we are of the view that Ground 2 has no merit.
GROUND 3 OF THE APPEAL & COUNT 3 OF THE CONTRAVENTION
Ground 3 is concerned solely with the primary judge’s findings in relation to Count 3 of the contravention.
Under Ground 3 and her Summary of Argument, the mother alleges that the primary judge erred in her assessment of whether the mother had a reasonable excuse in relation to the third count of the contravention application and came to a conclusion that was plainly wrong.
By Count 3 of the contravention application, the father alleged that on 2 September 2020 at 9.00 am at City P and in contravention of Order 2(b) of the parenting orders, the mother without reasonable excuse took the children to two medical appointments without first obtaining written consent. Order 2(b) of the parenting orders provides:
2. …
(b)The father has sole parental responsibility in relation to all health issues relating to the children and, unless the father agrees in writing beforehand, the mother is restrained from making any decision relating to the children’s health and from making any appointments or attending any appointments (unless the father is unable to attend) for the children with any medical practitioner, therapist or allied health professional and from taking the children (or causing the children to be taken) to any appointments with any medical practitioner, therapist or allied health professional and, in particular, the mother is restrained from taking any of the children for further assessment in relation to any health issues including but not limited to Autism Spectrum Disorder (“ASD”). This injunction against the mother does not prevent her from taking the children for treatment or assessment in cases of a genuine health emergency;
The primary judge noted that the father sought that this alleged contravention be dealt with on the basis that the mother had acted with serious disregard for her obligations under Order 2(b) of the parenting orders and that the mother be penalised by way of either being placed on a bond or being fined. The primary judge found[25]:
[25] At [23]–[24].
23.I accept that the mother took the children to a dentist on 2 September 2020 and an optometrist on an unspecified date and that she did so without first obtaining the father’s written agreement.
24. Having regard to the evidence before me:
(a)I am satisfied beyond reasonable doubt that the mother intentionally failed to comply with Order (2)(b) of the November 2019 orders when she took the children to a dentist on 2 September 2020 and to an optometrist on an unspecified date;[26] and
(b)I am satisfied beyond reasonable doubt that the mother’s actions did not amount to her making a reasonable attempt to comply with the restraint imposed on her by the terms of Order (2)(b) of the November 2019 orders;[27] and
(c)I am satisfied beyond reasonable doubt that the mother contravened the November 2019 orders by taking the children to see a dentist on 2 September 2020 and optometrist on an unspecified date without first obtaining the prior written agreement of the father; and
(d)I am not persuaded, on the balance of probabilities,[28] that the mother had a reasonable excuse for contravening the November 2019 orders on 2 September 2020 – I am not persuaded that the contravention was because or substantially because the mother did not at that time understand the obligations imposed by the November 2019 orders on her; I do not accept that the mother believed on reasonable grounds that taking the children to see the dentist and the optometrist without first obtaining the father’s written consent to her doing so was necessary to protect their health or safety[29] and I simply do not accept the mother’s assertion that she did not believe that a dentist was included within the meaning of the phrase “allied health practitioners”; and
(e)I am persuaded beyond reasonable doubt that the mother did not have a reasonable excuse for contravening this aspect of the November 2019 orders.
[26] Family Law Act 1975 (Cth) s 70NAC(a).
[27] Family Law Act 1975 (Cth) s 70NAC(a).
[28] Family Law Act 1975 (Cth) s 70NAF.
[29] Family Law Act 1975 (Cth) ss 70NAE(1) and (5).
The mother admitted to taking the children to the dentist and to the optometrist, on an unspecified date, without the father’s prior written consent.
Before the primary judge, the mother gave evidence that she did not understand that a dentist was covered by Order 2(b) of the parenting orders. The mother’s evidence was:[30]
[THE MOTHER]: Okay, okay. And for count three, I did take them to the dentist. Our son had a toothache which was going on. The father wasn’t responding to my emails. I didn’t know how else I could actually get something done, because I was asking him to do it. He wasn’t doing it. My son was complaining to me, so I took them to the dentist. The optometrist was also later one. But I also didn’t believe that the dentist was part of the allied health practitioners, which is in the wording of the orders. It was for the children’s health. It was not malicious in any way. I don’t understand why the father was so upset about it, and that is all I can say about that one.
[30] Transcript 27 August 2021, p.21 lines 25–34.
The primary judge did not accept the mother’s evidence that she “didn’t believe that the dentist was part of the allied health practitioners”.
Notably, the mother referred to the dentist together with the children’s optometrist and chiropractor in an email sent to the father on 2 December 2019[31] in the following terms:
Their last appointments were –
Dentist - … - end of May (6 monthly) and they are due to go again now. You will be able to make an appointment in the next few weeks before Christmas as they have two locations – … .
Optometrist - … - end of May and due again next May.
Chiropractor - … - mid November and due again mid February.
(As per the original) (Emphasis removed)
[31] Mother’s affidavit filed 6 July 2021, Annexure 3, p.11.
On 10 June 2020, the mother followed up with the father in regards to the above as follows[32]:
Subject: RE: URGENT: Children’s Scheduled Medical Appointments
…
I sent this information to you last year and you still haven’t taken the children to any of their required appointments, particularly their Dentist Appt last December (instead taking the children to your Mother’s place as a last minute attempt to stop the stay order - as well as through and to the bad bushfires there). Their teeth are looking particularly in need of attention, especially since you haven’t taken them to their 6 monthly appointments as you said you would.
Please attend to taking the children to their required appointments (as listed below) asap. These are things that you need to keep on top of, for the health and well-being of the children, and shouldn’t need to be reminded about.
[32] Mother’s affidavit filed 6 July 2021, Annexure 3, p.11.
It is difficult to accept that any reasonable person would not see a dentist as within the category of at least an “allied health professional”, if not a “medical practitioner”. The mother referring to the dentist in the same context as medical practitioners, the optometrist and the chiropractor is evidence of the mother having understood that the dentist was covered by Order 2(b) of the parenting orders. The primary judge was entitled to accept that evidence. Indeed, it is compelling evidence.
In our view, the rejection by the primary judge of the mother’s contention that she did not understand that the dentist was an allied health professional or that a dentist was covered by Order 2(b) of the parenting orders, was a course open to the primary judge on the evidence.
The mother also submitted that her conduct had not demonstrated a serious disregard for her obligations under the parenting order, saying[33]:
[THE MOTHER]: I don’t believe it was in serious disregard of my obligations. I was looking after my children, and the children are important. They are the reason we have these orders. I don’t think a normal parent would think that another parent should have a penalty for doing something that is beneficial or what is needed for the children, and I definitely don’t think that any penalty should be applied.
[33] Transcript 27 August 2021. p.22, lines 40–45.
The mother relied upon allegations that the father had neglected the children’s needs as a reasonable excuse.
The case Gaunt and Gaunt (1978) FLC 90-468 in the Full Court of the Family Court of Australia (as it was then known) considered whether a parent, who does not agree with the court’s decision about access, can defy the access order based on his or her genuine belief that to allow the order to operate would be contrary to the welfare of the child. The Full Court stated at 77,398:
The question of the child’s welfare is, of course, the paramount consideration for the Court in determining the access question in the first place. To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the Court’s order or from the consequences of non-compliance would undermine the purpose and intentions of the Act.
This is not to say that the Court’s decision, once reached, determines the matter for all time. It can be challenged by appeal and it can be reviewed and varied if new evidence or new circumstances dictate such a course of action (see Hayman v. Hayman (1976) FLC 90-140). The husband did not appeal. Nor did he apply to vary the order. His reasons for failing to do so suggest that he was given bad advice but we cannot determine whether that is so. A party’s subjective view of the rights and wrongs of a decision cannot be relied on as “just cause or excuse” or “reasonable cause”. Evidence of changed circumstances or of matters not considered when the order was made might be.
There was no immediate urgency for the children to see a dentist. The mother did not apply to vary the orders. The primary judge’s rejection of the mother’s contention of reasonable excuse was soundly made.
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.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Bennett & Howard. Associate:
Dated: 11 May 2022
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