Bircher & Bircher
[2021] FedCFamC1F 168
•28 October 2021
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 shall occur at 10.00 am on the day calculated to be the halfway point in the school holiday period; and
(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.”
IT IS NOTED THAT THE COURT FOUND THAT
4.The Respondent, 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 Respondent, 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 Respondent, 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.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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
HOGAN J:
By a Contravention Application filed 24 May 2021, the father alleged that, between 30 January 2020 and 1 January 2021, the mother contravened orders (2)(b), (6) and (9) of orders made on 27 November 2019 (the November 2019 orders) in the manner particularised. These orders regulate the parenting arrangements for the parents’ children, B,[1] C[2] and D[3] and were made after the parents participated in a three day trial, which commenced on 20 November 2019, before Carew J.
[1] Born ... 2007.
[2] Born ... 2008.
[3] Born ... 2009.
The order made on 27 August 2021 dismissed Counts 4 and 5 of the application for the reasons then expressed.
The reasons which follow deal with the remaining allegations of contravention.
It is pertinent to note that the father submitted, in essence, that, whilst the Court would be satisfied that it was more appropriate for Counts 1 and 2 of the application to be dealt with under Subdivision E of Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”),[4] it would be persuaded to deal with Count 3 of the application pursuant to Subdivision F of Division 13A of Part VII of the Act because it would be satisfied that the mother had behaved in a way that showed a serious disregard of her obligations under the primary order[5] and would not be satisfied that it was more appropriate for that contravention (if established) to be dealt with under Subdivision E.[6]
[4] Family Law Act 1975 (Cth) s 70NEA.
[5] Family Law Act 1975 (Cth) s 70NFA(2)(b).
[6] Family Law Act 1975 (Cth) s 70NFA(4).
I have accepted the father’s submissions in this respect.
Count 1: Application for Contravention filed 24 May 2021
The father alleged that, on 1 January 2021, the mother contravened the November 2019 orders by failing to provide C to spend time with him for half of the school holidays at the end of Term 4, 2020 and instead retained her in her care until 6.00 pm on 8 January 2021, which he alleged was seven days after the mid-point of the holidays calculated in accordance with Order (6) of the November 2019 orders.
The relevant aspects of the November 2019 orders are 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 2019, with the father in the first half of the school holidays and with the mother in the second half, and commencing in December 2020, with the mother in the first half of the school holidays and with the father in the second half, and alternating in years thereafter.
…
6. For the purpose of school holiday time in paragraph (4) hereof the 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 and the calculation of half school holidays shall be based on the number of nights in each school holidays, and if there is an odd number of nights then the children will spend the extra night with the parent who is spending time with the children for the first half of the school holidays in that year.
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.
I accept that the mother retained C in her care until 6.00 pm on 8 January 2021.
Having regard to the evidence before me:
(a)I am persuaded to the requisite standard[7] that the mother intentionally failed to provide C to spend half of the end of Term 4, 2020 school holidays with her father; [8] 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; [9] 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.
[7] Family Law Act 1975 (Cth) s 70NAF(1).
[8] Family Law Act 1975 (Cth) s 70NAC(a).
[9] Family Law Act 1975 (Cth) s 70NAC(a).
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,[10] 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 C 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.[11]
[10] Family Law Act 1975 (Cth) s 70NAF.
[11] Family Law Act 1975 (Cth) ss 70NAE(1) and (5).
Whilst the father sought that he be given compensatory time with the children – that is, that all of the children spend an additional week in his care during a school holiday period – the established contravention related only to C not having the opportunity to spend the entirety of half of the end of year school holiday period with her father. The boys spent the time ordered.
Given this, I am not persuaded that it is appropriate or proper or in the boys’ best interests that they, in effect, lose some of their ordered holiday time with their mother when they have not missed out on any ordered time with their father.
However, as I am persuaded that, as a result of the mother’s contravention of the relevant terms of the November 2019 orders, the father did not spend a week of holiday time with C in accordance with the relevant terms of the November 2019 orders, I consider it appropriate and proper that he be compensated for this lost time; I am not persuaded that it would not be in C’s best interests for this to occur.[12] In arriving at these conclusions, I have taken into account the mother’s submissions about the time C actually spent with each of her parents at this time.
[12] Family Law Act 1975 (Cth) s 70NEB(5).
So as to minimise the prospects of future conflict between the children’s parents, I consider it appropriate and proper and in the children’s best interests that the compensatory time between C and her father occur during the school holidays that occur at the end of Term 2 in 2022. In this way, both parents will have sufficient opportunity to make the appropriate arrangements.
Count 2: Application for Contravention filed 24 May 2021
The father alleged that, on 30 January 2020, the mother deliberately refused to allow him to spend time with the children ... and that she did so by removing the children from their respective schools before 3.00 pm, the usual end-of-school time.
The relevant aspect of the November 2019 orders is in the following terms:
9. On each of the children's birthdays, with all the children, at all times as may be agreed between the parents in writing but otherwise as follows:
(a)if a school day then from after school until 7.00pm with the parent who does not have the children in their care on that day; and
(b) if a non-school day from 2.00pm to 7.00pm with the parent who does not have the children in their care on that day.
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 ...
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).
As the father sensibly did not seek compensatory time to compensate for the loss of what he described as basically a dinner time, I do not intend to order the same.
Count 3: Application for Contravention filed 24 May 2021
The father alleged that, on 2 September 2020, the mother took the children to two medical appointments without first obtaining his prior written consent. He sought that this alleged contravention be dealt with on the basis that it established that the mother had acted with serious disregard for her obligations; he sought that she be penalised by way of either being placed on a bond or fined.
The relevant aspect of the November 2019 orders is in the following terms:
2. The parents have equal shared parental responsibility for major long term issues (as that term is defined in s 4(1) of the Family Law Act 1975 (Cth)) for the children B born [...] 2007, C born [...] 2008 and D born [...] 2009 (“the children”) save that:
….
(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;
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.
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;[17] 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;[18] 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,[19] 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[20] 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.
[17] Family Law Act 1975 (Cth) s 70NAC(a).
[18] Family Law Act 1975 (Cth) s 70NAC(a).
[19] Family Law Act 1975 (Cth) s 70NAF.
[20] Family Law Act 1975 (Cth) ss 70NAE(1) and (5).
I consider it more appropriate for Count 3 to be dealt with under Subdivision F of Division 13A of the Act because I am satisfied beyond reasonable doubt that:
(a)all of the relevant statutory prerequisites prescribed by ss 70NFA(1) and (2) of the Act have been established; and
(b)in taking the children to a dentist on 2 September 2020 and an optometrist on an unspecified date, the mother behaved in a way that showed a serious disregard for her obligation under the November 2019 orders to refrain from doing so without first obtaining the father’s written agreement to that action: that is, I am satisfied beyond reasonable doubt that the mother showed serious disregard for that aspect of the November 2019 orders which restrained her from doing the very thing that she did.
Whilst s 70NFB(1)(a) of the Act mandates that, unless I am satisfied that it would not be in the children’s best interests, I must make an order that the mother pay all of the father’s costs of the contravention proceedings, both parties have represented themselves during the contravention proceedings; there is no evidence to suggest that the father has incurred any legal costs; if the father has incurred legal costs associated with the current application, there is no evidence as to the quantum of the same so as to permit a consideration of whether an order that the mother pay the fathers costs of the contravention proceedings would not be in the children’s best interests. In the circumstances, I do not intend to make such an order.
The father submitted, in essence, that, if, as has been the case, the Court found that the mother contravened Order (2)(b) of the November 2019 orders in the manner alleged, the Court would either make an order requiring the mother to enter into a bond in accordance with s 70NFE of the Act or would fine the mother in accordance with s 70NFB(2)(d) of the Act. The mother opposed the imposition of any penalty on the basis that she thought the same was “grossly unfair”; she submitted that she could not afford to pay a fine.
I consider there to be absolutely no utility in ordering that the mother enter into a bond: I think it highly unlikely to have any real effect on her in terms of future compliance with orders (noting that, for reasons delivered following a hearing on 15 May 2018, Forrest J found that the mother had contravened earlier orders by refusing to sign passport applications for the children and noted that she had said that she would not sign the same irrespective of the order made). Further, I consider that requiring the mother to enter into a bond is insufficient recognition of the seriousness of her contravention of Order (2)(b) of the November 2019 orders in the manner I have found occurred.
I consider that the most appropriate of the orders under s 70NFB(2) of the Act to be an order made pursuant to s 70NFB(2)(d) of the Act: that is, to fine the mother an amount not more than 60 penalty units (currently $13,320.00).[21] The power to fine the mother is predicated on the Court being satisfied beyond reasonable doubt that the grounds for making such an order exist.[22] I record that I am so satisfied.
[21]See: Acts Interpretation Act 1901 (Cth) s 2B which defines “penalty unit” to mean: “including in relation to a civil penalty provision, has the meaning given by section 4AA of the Crimes Act 1914”; Crimes Act 1914 (Cth) s 4AA; Notice of Indexation of the Penalty Unit Amount, dated 14 May 2020.
[22] Family Law Act 1975 (Cth) ss 70NAF(3)(a), 70NFB(2)(d).
I consider that the appropriate order is that the mother is fined $600.00 and, given her submission that she cannot afford to pay a fine, allowed six months to pay the same. In arriving at this conclusion, I have taken into account the potential impact on the children of the mother being required to pay a fine in the amount ordered.
Variation of the November 2019 orders[23]
[23] Family Law Act 1975 (Cth) s 70NBA(1).
During the hearing I raised with the parents the prospect of varying Order (6) of the November 2019 orders to nominate a time for changeover so as to avoid the continued requirement to calculate and communicate about the same and to eliminate the possibility of disagreement about the calculation.
I consider varying the November 2019 orders as particularised in the orders set out at the commencement of these Reasons is something that is in the children’s best interests as it will hopefully remove an issue about which there is the prospect of future parental disagreement. In determining to make this order, I have also considered those matters which, by s 70NBA(2) of the Act, I am required to consider where the same are relevant and the evidence has permitted me to do so.
For the reasons expressed, I make orders in terms of those set out at the commencement of these Reasons.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 28 October 2021
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