Bircher & Bircher (No 3)
[2022] FedCFamC1F 1037
Federal Circuit and Family Court of Australia
(DIVISION 1)
Bircher & Bircher (No 3) [2022] FedCFamC1F 1037
File number(s): BRC 5628 of 2022 Judgment of: JARRETT J Date of judgment: 3 November 2022 Catchwords: FAMILY LAW – parenting – contravention – where the respondent admits the contravention and alleges reasonable excuse – where the evidence does not persuade the Court the respondent has a reasonable excuse – where the contraventions are serious contraventions - where the respondent is ordered to enter into a bond Legislation: Family Law Act 1975(Cth) ss 70NAC, 70NAE, 70NFB, 70NFE Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 3 November 2022 Place: Brisbane Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Litigant in person ORDERS
BRC 5628 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BIRCHER
Applicant
AND: MS BIRCHER
Respondent
order made by:
JARRETT J
DATE OF ORDER:
3 NOVEMBER 2022
AND UPON THE COURT FINDING that the applicant has, without reasonable excuse, contravened the orders made under the Family Law Act 1975 (Cth) on 19 November, 2019 and varied by the orders made under the Family Law Act 1975 (Cth) on 28 October, 2021, in that:
(a)in contravention of paragraph (3)(a) thereof, on 2 September, 2022 the applicant without reasonable excuse undertook deliberate action to refuse to allow the child, C, to live with the respondent for one week; and
(b)in contravention of paragraph 8 thereof, on 3 September, 2022 the applicant without reasonable excuse undertook deliberate action to refuse to allow the child, C, to spend time with the respondent for 24 hours for Father’s Day;
THE COURT ORDERS THAT:
1.Pursuant to s.70NFB(2)(b) of the Family Law Act 1975 (Cth) the applicant enter into a twenty-four (24) month bond on the following conditions:
(a)to be of good behaviour during the time that the bond is in force;
(b)to comply fully with all parenting orders with respect to B born 2007, C born 2008 and D born 2009 and in particular, the orders of Justice Carew made 27 November, 2019 as varied by the orders of Justice Hogan made 28 October, 2021 and the orders of Justice Jarrett made 3 November, 2022 and as further amended or varied from time to time;
(c)without surety or security.
2.By way of compensation for time not spent between the child, C, and the respondent by reason of the applicant’s proven contravention of previous orders without reasonable excuse, C shall, in addition to the time she will spend with him pursuant to the terms of the orders made 27 November, 2019 and varied 28 October, 2021 spend the following time with the respondent:
(a)from 3.00 pm on 4 November, 2022 until 3.00pm on 5 November, 2022; and
(b)an additional week during the 2022-2023 Christmas holidays, commencing 22 December, 2022 until 29 December, 2022 when her usual holiday time with the respondent shall commence.
3.Changeover for the purposes of time to be spent between C and the respondent under paragraph (2) herein shall be pursuant to the existing orders.
4.Pursuant to s.70NFB(1)(a) and (2)(g), the applicant shall pay the respondent’s costs incurred pursuant to the Application – Contravention filed 13 September, 2022 fixed in the sum of $146.70 (one-hundred and forty-six dollars and seventy cents) within 30 days of the date of this order.
5.The Application – Contravention filed 13 September, 2022 is otherwise dismissed.
6.Judgment on other outstanding applications is adjourned sine die.
IT IS NOTED:
A.Should time between C and the respondent pursuant to paragraph (2)(a) herein not occur, the respondent is at liberty to apply to have the matter relisted., by directly contacting the Chambers of Jarrett J.
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
JARRETT J:
This is an application for contravention of certain orders that were made by a judge of this Court on 27 November, 2019 and subsequently amended on 28 October, 2021. The orders concern the parenting of three children. Under those orders there are some arrangements for these parents to have shared parental responsibility in some respects, and sole parental responsibility in others. There is an arrangement whereby the children will spend equal time in each household.
By his contravention application filed on 13 September, 2022 the applicant father alleges that on 2 September, 2022 in breach of paragraph 3(a) of the order as amended the respondent mother, without reasonable excuse, took deliberate action to refuse to allow their child, C, to live with the applicant for one week. As I understand the material, C is the parties’ middle child who is about 14 years of age presently. The second count is that on 3 September, 2022 the respondent, in breach of paragraph 8 of the orders, without reasonable excuse, undertook deliberate action to refuse to allow C to spend time with the applicant for 24 hours for Father’s Day.
When I put those counts in the contravention application to the respondent she admitted them, but said that she had a reasonable excuse for contravening the orders. I will come back to that matter shortly.
The evidence from the applicant supporting the contravention is that on 25 August, 2022 his relationship with his daughter was essentially normal. He describes her as being in high spirits. On the next day the parties’ three children caught the school bus to school from his home or thereabouts.
On 26 August, 2022 there was a hearing before this Court in connection with an application for further amendments to the parenting orders that had been commenced by the respondent mother earlier in 2022. On 31 August, 2022 according to the unchallenged evidence, there was a telephone call between the father and the children, which according to his affidavit was for all intents and purposes, normal. He says that C was in high spirits and was looking forward to spending time with him for Father’s Day. The father says that on 31 August, 2022 at 8.32pm he received an email from the respondent stating that she would be withholding C until the Court changes the parenting order. The email is in evidence. That is what it says, essentially. No real basis was set out in the email for that stance. There are some assertions in the email, but the assertions are not proved in any evidence before me. For example, there is an assertion that C is, “Quite distressed that the process is taking so long.” It is curious that she would even know about the process, although in the context of this case it is probably not surprising. It says that she, “Wants her voice to be heard.”
Further, the email from the respondent says this:
The psychologist you engaged informed you in June that [C] has had thoughts of self-harm, and not only did you keep this from me. You breached the orders by prohibiting the psychologist and her office from speaking to me. I have spoken to the school counsellor who confirmed these issues and that [C] stated she wants to live here. So you are making things more difficult for her and causing her more distress. Unfortunately[C] has already engaged in self-harm behaviours which is even more of a concern.
Of those matters, none is proved in evidence. In fact, much of it is the subject of contention. The evidence shows that C was engaged with a psychologist having recently been engaged with her in June this year, but after one visit and after contact, according to the father’s affidavit material, between the psychologist and the respondent mother, the psychologist declined to treat C and the other children any further. There is no evidence that proves the suggestion that the father, in fact, prohibited the psychologist from speaking to the respondent. The evidence is to the contrary. Apart from the mother’s sworn testimony before me in these proceedings, there is no evidence from the school counsellor either. It is said that C has self-harmed, but there is no description in the evidence of what that means. It means different things to different people. I do not know what it means in this case.
On the strength of the assertions in the email, C was not made available, as the mother concedes, to spend time with her father. It seems to be common ground that for the weekly period nominated in the application for contravention, C was not made available to the father and she was not given the opportunity to spend time with him. So too, in respect of count 2 for the same reasons, she did not spend time with the father for Father’s Day.
Section 70NAC of the Family Law Act 1975 (Cth) provides that:
A person is taken to have contravened an order under the Act effecting children if and only if:
(a) where the person is bound by the order he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempts to comply with the order…
The mother’s concession that she has contravened the order as the father alleges indicates that she has intentionally failed to comply with the order. The wording of his contravention application, which she concedes, is that she undertook deliberate action. There is no contention that she has not contravened the order.
Section 70NAE of the Family Law Act 1975 (Cth) sets out the meaning of the phrase, “Reasonable excuse for contravening an order”. The circumstances in which a person may be taken to have had for the purposes of division 13A, Part VII of the Act, a reasonable excuse for contravening an order effecting children include a number of scenarios set out in s 70NAE(2) through to s 70NAE(7), but they are not limited to those circumstances. In particular, s 70NAE(4), provides that:
A person is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with who the child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a)the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of the person and;
(b)the period during which because of the contravention the child did not live with the person whose favour the order was made, was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
It is the respondent’s case here that she was taking steps to protect the health and safety of C. Her affidavit filed on 18 August, 2022, in support of a related application to vary the final parenting orders, sets out her evidence in relation to the matter. I will quote it in full because it is not very long:
4.A trial for parenting matters was attended in November 2019, with Justice Carew making orders that included the children spending half of their time with each parent, in a week about arrangement and half of the Summer holidays and other special holiday orders.
5.These Orders have been in place for over two (2) years now, and the children were not happy after they changed in November 2019. They continue to be unhappy about the current arrangement.
6.The children have been asking for changes to these Orders very soon after, however the Mother encouraged the children to continue with the Orders.
7.The Mother has encouraged the children to continue with the Orders quite a few times since November 2019, hoping that they would settle into a routine and be comfortable with the Orders in place, however, this is still not happening and the children are voicing very strong views about changes they want to make, as they are not happy with the current living arrangements.
8.Since the Orders changed in November 2019, all three (3) of the children have become teenagers and their views about how much time they spend with each parent has become a point of concern for them and state that they want to, “speak to the Court”. Due to their Father informing them about every court attendance we have had since 2011 and many of the details, they are very aware of the Courts and Orders.
9.The Mother has emailed the Father in an attempt to allow the children to decide where they want to live and for how long, to make a new agreement, however the Father has ignored these attempts. The children have also attempted to speak to the Father about the living arrangements to no avail.
10.The Mother then initiated an FDR session at the [City O] Family Dispute Resolution Centre to discuss the issue of living arrangements, however the mediation did not proceed, and a certificate was issued. This certificate is attached as a separate document with the initiating application.
11.I have attached two (2) discontinuation letters for [C] and [B]. These are written by the Psychologist engaged by the Father, and shows that the children have been speaking to this Psychologist about the Orders changing as well. [Annexure MH-1] - Discontinuation letters from psychologist dated 14th July 2022 and 16th June 2022.
There is then a paragraph about child support assessments, which is not relevant. The mother’s evidence, as I said earlier, was supplemented by some oral testimony about having spoken to a school counsellor.
It is significant, I think, that in the context of the present application the final orders provide the father with sole parental responsibility in respect of C’s health. It is clear that the references to the psychologist and the letters by the mother demonstrate that the father was attending to C’s health by giving her the opportunity to consult with a psychologist. There is nothing in the mother’s evidence that would suggest that there was any need whatsoever for the mother to take the action that she did.
Further, the question of the children’s wishes was addressed in the orders and the reasons made by Carew J in November, 2019. That was a matter of significance at that time and there was nothing apart from the mother’s very generalised statements in her affidavit that suggest that these wishes have changed. The generalised statements do not set out the children’s views at all other than that they want to make some changes. The nature and extent of the changes are not set out.
The onus of proof is on the mother to demonstrate on the balance of probabilities that she had a reasonable excuse for contravening the orders. I do not accept that she had discharged that onus. There was no reasonable excuse for contravening these orders. The contraventions are proved and, as I have indicated, there was no basis for doing so.
The evidence demonstrates that this is not the respondent’s first rodeo, as it were, in terms of contraventions. She has contravened these orders before. Hogan J dealt with the contraventions on the last occasion, and her Honour’s rulings about them were the subject of an unsuccessful appeal. The respondent was fined on the last occasion. That must mean that those contraventions then were seen as serious contraventions. One of the contraventions dealt with on the last occasion included the withholding of C. This is the same thing.
There is no reason not to deal with these contraventions under subdivision F of division 13A, part 7 of the Act rather than subdivision E. It is clearly a more serious contravention. One might have expected that if the mother takes the view that there are serious matters afoot here, far greater evidence would have been placed before the Court to substantiate her claims. None was.
Subdivision F has, in section 70NFB(1), a direction to the Court. It says that:
If this Subdivision applies, the Court must, in relation to the person who committed the current contravention:
(a) make an order under paragraph 2(g) unless the Court is satisfied that it would not be in the best interests of the child concerned to make that order.
Paragraph 2(g) provides:
An order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under the division.
The father seeks an order for costs. His costs are limited to the outlay expended by him in having the application for contravention served on the respondent. She says I should not make that order because she is a student on Centrelink benefits. Impecuniosity is no answer. The test is whether it would not be in the best interests for the child concerned to make the order for costs. I am not persuaded that it is not in the best interests of the child concerned, C, or the other children not to make an order for costs.
Accordingly there will be an order pursuant to ss 70NFB(1)(a) and 70NFB(2)(g) that the respondent pay the applicant’s costs of this application for contravention fixed in the sum of $146.70. Such cost to be paid within 30 days of today.
Having made an order under subsection (2)(g), the Court may make another order under subsection 70NFB(2) if it considers it is appropriate to do so.
This is a serious contravention and, as the father has submitted, it represents repeat behaviour. It is appropriate to impose some further sanction to secure compliance with the current parenting orders because it is clear that, in the absence of some sanction, there is a real reason to think that the orders will not be observed. The father suggested that there ought to be an order for a fine. The mother suggests that, given her status as a Centrelink recipient and student, that would be inappropriate. It would be inappropriate, in my view, because to impose a sanction that the mother has either an incapacity to meet or an unwillingness to meet is really no sanction at all.
I discussed with the father the power of the Court to ask the respondent to enter into a bond, and I explained to him and to the respondent, at the same time, what that meant. So that it is clear, I will repeat the explanation.
In light of the mother’s indication that she is prepared to enter into a bond, having regard to the explanation that I’ve given, her, it is appropriate to make an order that she enter into a bond pursuant to the provisions of ss 70NFB(2) and 70NFE. The bond will be for a period of two years. Given the history of this matter there is no reason to make it for anything less than that. It will be conditioned on the basis that she will be of good behaviour and that she comply, in all respects, with all parenting orders made from time to time in these proceedings, but in particular the order made in this case on 27 November, 2019 as amended on 28 October, 2021 and as might be subsequently amended from time to time.
The father seeks an order for compensatory time. That is entirely appropriate. The order that he seeks for compensatory time is provided for in his affidavit. He seeks an order that in addition to the time that C will spend with him pursuant to the terms of the order, she should spend an additional seven consecutive nights in his care during some school holidays so as to compensate him for the time that she did not spend from 2 to 9 September, 2022. The next period of school holidays is the school holidays at the end of this year, and it is appropriate for that time to be spent then. The week that she will spend with the father in accordance with the compensatory order will be one week immediately preceding the time that she is to come into his care. In addition to that there will be one additional 24-hour period. Accordingly I order that C live with the father from 3 pm Friday afternoon, 4 November, 2022 through to 3 pm on Saturday, 5 November, 2022. Changeover arrangements will be in accordance with the current orders. In the event that the time on Friday, tomorrow afternoon, and Saturday does not occur, the applicant has liberty to contact my associate on Monday morning. The matter will come back to Court for the purposes of dealing with the mother for a breach of the bond because non-compliance with that order of course will be a breach of the bond.
Otherwise I order the mother to enter into the bond to which I have earlier referred and the application for contravention will otherwise stand dismissed.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 3 November 2022
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