Bircher & Bircher - [2021] FedCFamC1F 168

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bircher & Bircher [2021] FedCFamC1F 168

File number(s): BRC 1459 of 2011

Judgment of: HOGAN J

Date of judgment: 28 October 2021

Catchwords: FAMILY LAW – CONTRAVENTION – Where the father alleges the mother has contravened parenting orders – Where the mother has not made a reasonable attempt to comply with the relevant terms of the parenting orders – Whether the contraventions are to be dealt with under Subdivison E or Subdivision F of Division 13A of Part VII of the Family Law Act 1975 (Cth) – Where the mother has previously contravened parenting orders.

Legislation:
Acts Interpretation Act 1901 (Cth) s 2B

Crimes Act 1914 (Cth) s 4AA

Family Law Act 1975 (Cth) Pt VII, Division 13A, ss 70NAC, 70NAE, 70NAF, 70NBA, 70NEA, 70NEB, 70NFA, 70NFB, 70NFE

Number of paragraphs: 33

Date of hearing: 27 August 2021

Place: Brisbane

The Applicant: In person

The Respondent: In person

Table of Corrections

The following amendment has been made pursuant to rule 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to correct a clerical mistake.

24 November 2021 On the coversheet the date of hearing has been changed from “13 August 2021” to “27 August 2021”.
ORDERS

BRC 1459 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR BIRCHER

Applicant

AND:
MS BIRCHER

Respondent

ORDER MADE BY:

HOGAN J

DATE OF ORDER:

28 OCTOBER 2021

THE COURT ORDERS THAT:
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 Respondent 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.
3.Pursuant to s 70NBA(1) of the Family Law Act 1975 (Cth), the parenting order made by Carew J on 27 November 2019 relating to the children B, born in 2007, C, born in 2008 and D, born in 2009 is varied by:
(a)discharging Order (6) of the same; and
(b)making an order in the following terms in lieu thereof:
“(6) For the purpose of school holiday time in paragraph (4) hereof:
(a)       school holidays are taken to commence after school on the last day of term and conclude on the morning of the first day of the next school term;
(b)       the calculation of half school holidays shall be based on the number of nights in each school holiday period;
(c)       changeover…

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 [2021] FedCFamC1F 168
Case: [2021] FedCFamC1F 168
Decision Date: 28 October 2021

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Mr Bircher brought an application against Ms Bircher alleging that she had contravened parenting orders made by the Court. The dispute centred on the parenting arrangements for their three children, born in 2007, 2008 and 2009, and the failure of Ms Bircher to adhere to the terms of those orders. The matter was heard by His Honour Judge Hogan.

The primary legal issue was whether Ms Bircher had made a reasonable attempt to comply with the relevant terms of the parenting orders, and if not, whether the contraventions should be dealt with under Subdivision E or Subdivision F of Division 13A of Part VII of the Family Law Act 1975 (Cth). Additionally, the Court had to consider the appropriate remedy in light of Ms Bircher’s previous contraventions.

Judge Hogan found that Ms Bircher had not made a reasonable attempt to comply with the parenting orders, and that the contraventions should be dealt with under Subdivision F of the Act. The Court emphasised the importance of the mother’s compliance with the orders and noted her history of non-compliance. As a result, the Court ordered additional time for the child born in 2008 to spend with the father during the June/July school holidays in 2022 to compensate for time missed during the December 2020/January 2021 school holidays. Furthermore, a fine was imposed on Ms Bircher, and the parenting order regarding the calculation of school holiday time was varied to clarify the process for future school holidays.

Orders

Orders of the court

BRC 1459 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR BIRCHER

Applicant

AND:

MS BIRCHER

Respondent

ORDER MADE BY:

HOGAN J

DATE OF ORDER:

28 OCTOBER 2021

THE COURT ORDERS THAT:

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 Respondent 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.

3. Pursuant to s 70NBA(1) of the Family Law Act 1975 (Cth), the parenting order made by Carew J on 27 November 2019 relating to the children B, born in 2007, C, born in 2008 and D, born in 2009 is varied by:

(a) discharging Order (6) of the same; and

(b) making an order in the following terms in lieu thereof:

“(6) For the purpose of school holiday time in paragraph (4) hereof:

(a) school holidays are taken to commence after school on the last day of term and conclude on the morning of the first day of the next school term;

(b) the calculation of half school holidays shall be based on the number of nights in each school holiday period;

(d) if there is an odd number of nights in the school holiday period, then the children will spend the extra night with the parent who the children are spending time with for the first half of the school holidays in that year and changeover shall occur at 10.00 am on that day.”

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	BRC 1459 of 2011
Judgment of:	HOGAN J
Date of judgment:	28 October 2021
Catchwords:	FAMILY LAW – CONTRAVENTION – Where the father alleges the mother has contravened parenting orders – Where the mother has not made a reasonable attempt to comply with the relevant terms of the parenting orders – Whether the contraventions are to be dealt with under Subdivison E or Subdivision F of Division 13A of Part VII of the Family Law Act 1975 (Cth) – Where the mother has previously contravened parenting orders.
Legislation:	Acts Interpretation Act 1901 (Cth) s 2B Crimes Act 1914 (Cth) s 4AA Family Law Act 1975 (Cth) Pt VII, Division 13A, ss 70NAC, 70NAE, 70NAF, 70NBA, 70NEA, 70NEB, 70NFA, 70NFB, 70NFE
Number of paragraphs:	33
Date of hearing:	27 August 2021
Place:	Brisbane
The Applicant:	In person
The Respondent:	In person

Table of Corrections
The following amendment has been made pursuant to rule 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to correct a clerical mistake.
24 November 2021	On the coversheet the date of hearing has been changed from “13 August 2021” to “27 August 2021”.

BRC 1459 of 2011
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR BIRCHER Applicant
AND:	MS BIRCHER Respondent

ORDER MADE BY:	HOGAN J
DATE OF ORDER:	28 OCTOBER 2021