Case Summary- Bircher & Bircher

BREACHING PARENTING ORDERS- MOTHER FINED

Case Summary- Bircher & Bircher

The case of Bircher & Bircher was an appeal brought by the mother of a successful contravention application brought by the father.

The primary judge found that the mother contravened parenting orders on three occasions by withholding children from time with the father and by taking them to medical appointments, which the parenting orders prevented her from doing without the father’s consent in writing.

Background

Parenting orders were made in 2019 with respect to the three child of the parties, aged 15 years old, 13 years old and 12 years old.

The father filed a court application in 2021 alleging that the mother had contravened these parenting orders on 5 different occasions. Of these, the primary judge dismissed two allegations and upheld that the mother had contravened the orders on three occasions.

The contraventions upheld by the primary judge were:

  1. That the mother without reasonable excuse contravened the orders by failing to provide the child (aged 13) to her father so that the child spent seven nights less with him during that school holiday period than she should have under the parenting orders
  2. That the mother, without reasonable excuse, contravened the orders by failing to ensure that the child spent time with their father between 3:00pm and 7:00pm on the 30th of January 2020;
  3. That the mother, without reasonable excuse, contravened the orders by taking the children to a dentist and an optometrist and in doing so behaved in a way that showed a serious disregard of her obligations under the orders 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.

The primary judge found that these three counts of contravention were established. They ordered that the 13 year old child spend an additional seven consecutive nights in her father’s care during the school holidays to make up for the missed time. The mother was also fined $600.

Appeal

The mother appealed the decision of the primary judge. She argued that the judge made a decision that was plainly wrong in that they did not properly consider evidence that:

  1. The father did spend half of the applicable school holiday period with the 13 year old
  2. The mother was supposed to have the time with the children that the contravention was raised on
  3. The father was not attending to his responsibilities regarding the children’s health and there was a health concern for the children that the mother responded to.

Ground One

The court did not uphold the first ground. The court assessed what evidence was available to the primary judge. The parenting orders provided that the mother was to have the 13 year old for the first half of the long summer school holidays.

There was also evidence from medical professionals and of correspondence between the parties of the father notifying the mother that the child had to undertake surgery at short notice and needed to stay with him during recovery. As a result of this, the child spent an additional two weeks with the father. In response, as a ‘tit for tat’, the mother withheld the child from the father at a later date for a period of one week, purportedly as make up time for the above.

The primary judge found that this was not a reasonable excuse for the mother to not comply with the parenting order by withholding the child from the father. The appeal court determined that based on this evidence, this was a finding that was clearly open to the primary judge and dismissed this ground.

Ground Two

The court did not uphold the second ground. The court again assessed what evidence was available to the primary judge. The parenting orders say that the parent who does not have the child 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 7pm.

As a result of changes to the orders made between the parties by later written agreement, there was a dispute as to where the children were residing at that time, and therefore whether the mother should have picked up the child whose birthday it was from school.

The court determined that it was open to the primary judge on the evidence to decide that the parties had agreed to alter these arrangements and there was therefore a contravention by the mother.

Ground three

The court did not uphold the third ground. The court again assessed what evidence was available to the primary judge. The parenting orders state that 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, including making medical appointments.

The mother argued at trial that she had a reasonable excuse for not following the parenting orders as the father was not meeting his obligations to take care of the children’s health concerns. The trial judge did not agree that this was a reasonable excuse. On appeal, the court found that this was open on the evidence for the trial judge to find.

As the mother did not succeed on any ground of appeal, the appeal was therefore dismissed.