Burchardt & Burchardt (No 2)

[2015] FamCA 807

FAMILY COURT OF AUSTRALIA

BURCHARDT & BURCHARDT (NO 2) [2015] FamCA 807

FAMILY LAW – CONTRAVENTION

APPLICANT:  Mr Burchardt

RESPONDENT: Ms Burchardt

INDEPENDENT CHILDREN’S LAWYER: Mr David Ridge

FILE NUMBER: CAC 738 of 2012

DATE DELIVERED: 23 February 2015

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 23 February 2015

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr David Ridge

IT IS NOTED that publication of this judgment by this Court under the pseudonym Burchardt & Burchardt (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 738 of 2012

Mr Burchardt

Applicant

And

Ms Burchardt

Respondent

REASONS FOR JUDGMENT

1. In this matter, the allegations before the Court were commenced with a formal application lodged on 2 December 2014.  The application asserted a number of allegations that the respondent Ms Burchardt had failed to comply with orders of this court without reasonable excuse. 

2. The orders referred to were made by consent between the parties, and formally made by the Registrar, though nothing turns on that.  The orders themselves, as I remarked to Mr Burchardt during the course of his presentation of his case before the court, were somewhat infelicitously worded in a number of respects, and that has prevented, possibly, his ability to determine or to establish that there were breaches of some of the orders. 

3. In short – and I will not reiterate what had occurred previously.  I dismissed, as failing to be established at a prima facie level, the allegations contained on pages 3, 4, 5 and 8 of the documents, for the reasons that I explained at the time.  The remaining allegations before me were those on pages 2, 6 and 7, and I will deal with each of those separately.  The first of these refers to an allegation that the respondent, without reasonable excuse, in effect prevented the children from having time with their father on 25 November 2014 in accordance with an order which provided that the children will spend time on their birthdays with the parent with whom they are not living as follows:  8.1 if on a day they are at school, from after school until 5 pm

4. On the relevant day, which is agreed as being E’s birthday, the children were not available at the school because they had been removed by Ms Burchardt at or about lunchtime.  That is not in dispute.  In those circumstances, there is clearly a prima facie case that there was a breach of the order.  However, in this matter Ms Burchardt asserted that she had a reasonable excuse for failing to comply with the order.  She gives evidence about this, and it is incumbent upon her to establish that evidence on the balance of probabilities, in accordance with the provisions of the Family Law Act.

5. What that means, in broad terms, is that it is more likely than not that what she says was true.  The excuse that was put forward by Ms Burchardt was that at the time there had been allegations of physical violence against B by Mr Burchardt, which she had first reported to the CPS, and had subsequently on their suggestion reported the matter to the police.  I am satisfied that, subsequently, the police investigated the matter and determined that there was no basis upon which any prosecution might be made, and ceased to continue their investigations.

6. The difficulty that arises is that it appears those investigations ceased prior to the time of 25 November 2014, and the evidence from Ms Burchardt is that she did not become aware until 26 November 2014 that in fact the investigations had been completed, and she says, and it is supported by the evidence, that she communicated with Mr Burchardt on the 26^th and informed him of that fact, and informed him that the arrangements about the time the children would spend with him would continue.

7. Mr Burchardt, having received initially an indication from Ms Burchardt that she would not be providing the children for the time that they were going to spend with him because of the allegations that had been made against him, responded on a number of occasions to her, including a letter, saying that first, he had been informed the investigations were completed, and second that he expected the children to spend time with him.  I do not pretend to quote, I merely paraphrase what the communication was about.  He says, and puts to Ms Burchardt, in the course of his approach to the matter that she is incorrect in stating that she did not know about the cessation of the investigations until the 26^th; she knew beforehand, and that therefore her failure to provide the children on the 25^th was without reasonable excuse.

8. It was not suggested to me by either party that if, in fact, the allegations were true that there would not be a reasonable excuse, and that was not argued.  It is easy to be wise after the event in both cases, for both parents, and it probably would have been a wiser move on the part of Ms Burchardt to have made an urgent application to the Court seeking suspension of the time that the children should spend with their father until the police investigations had been completed.  Nevertheless, she says, and I accept that it is so, that she had been told by a duty lawyer in this Court that she should not make the children available until the investigations were completed.

9. This is not advice that was proper advice, but it was not for her to know that the legal advice she got was wrong.  Assuming, therefore, that she thought she had legal advice that it was appropriate that the children should not be made available for time with their father, and assuming further, if I were to do so, that she did not find out that the investigations had not been completed until 26 November, it seems to me it would be a reasonable excuse for her not to have provided the children on the 25^th.  The point that Mr Burchardt makes is that I should not accept her evidence that she did not know, before the 26^th, that the investigations had been finished.

10. And, allowing for the fact that I think I would accept her evidence that she did not know, he says as a second string argument, if I can put it that way, that given that he had been asserting to her that the investigations had been finished, it was incumbent upon her to have made further inquiries, particularly in the light of the fact that she was about to deny the children spending time with him, in apparent contravention of an order, and that she did not do so.  The evidence that Ms Burchardt gave almost responsively, rather than anything else, in the course of the cross-examination was that in fact she had made several inquiries, including one on the day before the 25^th about the progress of the investigation, and had not been informed, notwithstanding the fact that she had made the inquiry.

11. There is no evidence, unfortunately, in the material that was the subject of subpoena that had come before the Court, which would corroborate one way or the other whether the police communicated with Ms Burchardt before the 26^th, which is the date on which she says she became aware of the cessation of the investigations from the police.  In those circumstances, given that it is a matter of my balancing the evidence in one way or the other, I accept the sworn evidence of Ms Burchardt about the times that she communicated with police and in fact the time when they finally communicated to her that the investigations had been completed.

12. I accept further, and no cross-examination was directed to the fact, that she had been proceeding on the basis, which was erroneous it seems to me, but nevertheless the subject, she says, of legal advice, and I accept that she received it, that it was appropriate for her to not provide the children in accordance with the order until such time as the police investigations had occurred.  In those circumstances, it seems to me that it would be unreasonable to impart significant, and I use the word perhaps incorrectly in these circumstances, moral guilt about the supposed breach of the order of the Court.

13. I am fortified in that conclusion by the proposition that on the 26^th, which is the date on which she says, and I accept, that she did receive confirmation that the police were finished, that she immediately notified Mr Burchardt that the time that the children spent with him would resume.  It seems to me that if she were in fact engaged in an exercise in attempting to prevent him from doing so that the likelihood is that there would have been a longer period before any such action was taken.  I say that simply because it provides some indirect corroboration for what the mother has said, and which I accept.

14. Accordingly, in my opinion, the allegation contained on page 2 of the application should be dismissed.  I turn to the allegation on page 6.  This related to a failure to comply with an order, drafted I would suggest again in somewhat infelicitous terms, that if the children were to be the subject of any matter about their health, and in particular about a medical condition, that the parent  whom the children were with at that time would notify the other parent, in the words of the order, “at the earliest possible opportunity”.  This is an example, and I say this not by way of criticism, but by comment, of the fact that imprecise language used in the drafting of court orders, particularly about children, particularly in circumstances where the parties have been engaged for some time in litigation, are very unwise.

15. “Earliest possible opportunity” could mean any number of things, and certainly does not mean literally that someone should be notified at the very instant that something has occurred.  Not for a moment that Mr Burchardt is suggesting that that was the case.  However, the plain facts of the matter in this instance were as follows:  the incident occurred some time in the mid-part of the evening of 17 June 2014, and there is no argument about the fact that it was an accident that occurred with a rat, and that there was a bleeding hand with C as a consequence, and there is no argument about the fact that C was taken to the hospital, and there received some stitches.

16. There is also no argument that, at 11.39 pm on the same day, Ms Burchardt sent to Mr Burchardt an email in which she set out details of the events that occurred.  It would seem to me, even without going into any of the intervening matters, the delay of the sort that is referred to in the circumstances referred to is not an unreasonable delay.  And, in any event, the determination of what constitutes the “earliest possible opportunity” in the terms of the order that the parties put to the Court to be made by consent must connote, to some extent, a variable standard depending upon the nature of the injury received.

17. If, in fact, for example – and thank God this was not the case – C had been at death’s door, then obviously notification should have occurred at the earliest possible time, forgetting about whatever anything else might mean, on the basis that Mr Burchardt might reasonably expect to attend, at the first possible opportunity for him to be there.  In these circumstances, when we are talking about something that is treatment in which his involvement was not going to assist in the treatment at all, it seems to me that the delay, even without taking account of what is asserted to have happened by Ms Burchardt in her evidence, was not outside the parameters developed by earliest possible opportunity.

18. I accept that there may be differences of opinion about what earliest possible opportunity may mean and, obviously, one might say in this matter, in relation to this allegation and the following one, Mr and Ms Burchardt have different views about what earliest possible opportunity may mean.  It would be sensible, in any orders that are made as a result of the coming proceedings between the parties, that any such phrase is no longer used, and we try to find some more precise language.  Although, I would have to say, it seems to me that it is going to be difficult to do so.  So far as the rest of the evidence is concerned, the evidence given by Ms Burchardt to some extent, initially herself as part of what she was going to say, but, more particularly, in cross-examination, affirmed that the conclusion I had reached before just based generally on the time was a reasonable one. 

19. The evidence from Ms Burchardt was that when the accident occurred she put the children in the car, and they went to the hospital.  She was on the telephone to an advisory service on the way to the hospital.  When she was taken to the hospital she was taken straight into a treatment room.  C was resisting treatment, if I can put it that way, to the extent that it was hurting her, and she was constrained by Ms Burchardt for some time.

20. Upon completion of the treatment, Ms Burchardt gives evidence that she fainted and was then under observation and treatment in the hospital until she was allowed to go home with the children later.  That she put the children to bed and that she then sent the email.  In those circumstances I do not think it could be reasonably said by any objective person that she did not notify Mr Burchardt at the earliest possible opportunity.  That application is dismissed.

21. In relation to the last of the counts remaining to be dealt with, this referred to an allegation that B had had a fall and was taken to hospital with a suspected broken arm and that arm was – I don’t know whether it is the correct word but I use it in a generic sense – immobilised in some sort of device as a consequence of the investigation.  This again may well constitute a cause for complaint by Mr Burchardt, particularly in circumstances where there is almost overwhelming suspicion between the parties about almost anything that occurs on both sides and the antipathy between them and the animosity is palpable.  And it is not surprising that almost every opportunity is taken by each of them to believe the worst of the other. 

22. In this situation, in essence, what happened was that Ms Burchardt asserts that there was a fall.  She took the child to the hospital to have it checked out.  The hospital confirmed there was no break but the arm was immobilised in some way.  They went home, went to a funeral and after the funeral she then sent an email from her parents’ place – her own phone being out of order – to Mr Burchardt to inform him about what had happened.  As things would happen, she says the email was not received by Mr Burchardt and I do not doubt for a moment that it was not received by him.  I do not think there is any doubt that he is telling the truth about that.

23. The consequence of that, assuming that the email was sent, was that he says he was not expecting any problems, and when he next saw B he did not notice initially that she had a problem until he got her home or thereabouts and then sent an inquiry and was told in an email that appears on page 61 of his affidavit that he had already been told this in a previous email and I accept that subsequently there was then a dispute about whether the email had ever been received.

24. Mr Burchardt applied some level of penetrating cross-examination to Ms Burchardt about the address to which it was sent and this, in the light of her assertion during the course of cross-examination, and in her email I referred to on page 61, that it was sent to his Bigpond address.  I have no idea why, if it was that the email would not have gone to Mr Burchardt’s Bigpond address.  It seemed to me that there was some point in what Mr Burchardt said, putting the question to Ms Burchardt that she had had some time to obtain a copy of the email and to have presented it. 

25. That presupposes that she would have had some knowledge of the way in which the forensic tactics in the matter would have developed.  But, leaving that to one side, the question elicited – as sometimes these things do – an answer which, in fact, was not helpful to Mr Burchardt, which in effect was that Ms Burchardt had in fact attempted to obtain a copy of the email but had been unable to do so from her parents’ computer.  And that not only was she unable to obtain a copy of the email she sent but her father had been unable to obtain copies of emails he sent.  I think Mr Burchardt wisely refrained from cross-examining further on that aspect of the matter and I accept the evidence that has been presented.

26. The situation then arises that, in this matter I am satisfied on the evidence that is presented that it is more likely than not, on the balance of probabilities, in other words, that Ms Burchardt thought she had sent an email, at least, and felt she had communicated with Mr Burchardt on the evening of the day on which the event occurred.  It is obvious that, for whatever reason, what she describes as a glitch – and what a glitch is, of course, is  as everyone knows,  a technical term that only computer people use and it does not mean anything other than something has not happened.

27. I am satisfied she felt she had complied with her obligation to inform him.  Again, that still gives rise to a question of whether, in the circumstances, assuming that she had done what she thought she could reasonably do, whether her communication was at the earliest possible opportunity.  There is a little more doubt about this instance. It is certainly not the case that there was a difficulty in her confining the child or constraining a child who was having stiches inserted against her will. 

28. But the circumstances in which she had no phone – her phone, it was asserted by her, again volunteered in the course of cross-examination, somewhat artlessly, given that it would have been a useful thing to have put in evidence-in-chief in some ways, that her phone was not working at the time and that she had to wait until she could get to her parents’ computer – seems to me to explain, at least in part, the delay.  The second element – and I had written a note to myself as I was listening to this evidence – that it seems to me that what is the earliest possible opportunity depends to some extent on the circumstances as to how soon the notification should exist.

29. In this matter, perhaps unlike the rat incident, the consequences, happily, were not serious.  And accordingly, again, there was no question of there being any particular reason why Mr Burchardt should have rushed to the bedside to have been involved or to assist in some way with the treatment.  Accordingly, although this one is on the cusp rather than on the clear cut ends of either of the matters, it seems to me that Ms Burchardt made all reasonable attempts to comply with the order and that, therefore, she had a reasonable excuse for the order not being complied with.  Accordingly, that application is also dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 23 February 2015.

Associate:

Date:  18 March 2015