Bunt and Charring
[2016] FCCA 3011
•21 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUNT & CHARRING | [2016] FCCA 3011 |
| Catchwords: FAMILY LAW – Parenting – large geographical distance between the parties – significant history of Mother’s belief that the child was at risk of abuse in spending time with the Father – each of the three family reports has found that there is no such risk to the child spending time with the Father – the same reports also consistently recommend that if the Mother continues to make unsubstantiated notifications to Care and Protection authorities the residence of the child should change from the Mother to the Father – despite multiple warnings to the Mother about such notifications they keep on occurring – Father almost hyper-vigilant to ensure compliance and reporting of Mother’s failures to Court – significant communication difficulties between the parties – child has good relationship with both parents. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC(2), (2A), 60CC(3), 61DA, 65DAA, 106A |
| Cases cited: Marriage of Cullen (1981) 8 Fam LR 35; (1981) FLC 91-113 |
| Applicant: | MR BUNT |
| Respondent: | MS CHARRING |
| File Number: | CAC 180 of 2012 |
| Judgment of: | Judge Neville |
| Hearing date: | 28 April 2016 |
| Date of Last Submission: | 21 June 2016; further updating material provided on 2 & 17 November 2016 |
| Delivered at: | Canberra |
| Delivered on: | 21 December 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented |
| Solicitors for the Respondent: | Self-represented |
| Solicitors for the Independent Children's Lawyer: | Legal Aid ACT |
ORDERS
PARENTAL RESPONSIBILITY & “LIVE WITH” ORDERS:
The child shall forthwith be known as X (born (omitted) 2010). That is, the child’s first name and surname shall be “X BUNT”, with the name “CHARRING” being added as an additional middle name.
The parents shall have equal shared parental responsibility for the child, X (born (omitted) 2010) (“X” or “the child”);
Subject to Orders 26 and 27 hereof, X shall reside with his Mother.
X’s “TIME WITH” AND “COMMUNICATION WITH” HIS FATHER:
Unless otherwise agreed in writing between the parties, during school terms X shall spend time with his Father as follows:
(a)Every second weekend, with such weekend contact periods commencing at 4:30 pm on Friday, when the changeovers shall occur at McDonald's (omitted), and concluding at 4:30 pm on Sunday.
Unless otherwise agreed between the parties in writing, Order 4 shall be suspended during school term holidays, and instead X shall spend time with his Father as follows:
(a)During each and every school term holiday, from 10:00am on the first Saturday falling after the conclusion of the school term until 5:00pm on the Sunday falling in the middle of the term school holidays with his Father;
(b)Changeovers are to occur at McDonald's (omitted) unless the parties agree otherwise in writing;
(c)During the long school holiday period during December and January 2016, X shall spend one consecutive ten-day block of time with his Father commencing at 10:00 am and concluding at 5:00pm on a ten day period of time to be agreed between the parties and the ICL in writing, and failing agreement, commencing 7 January 2017, with the child to return to the Mother on 17 January 2017
(d)Commencing in the long summer school holidays in 2017, X shall spend the first half of each long summer school holiday with his Father, in each year ending in an odd number, and the second half in each year ending in an even number or zero, and for this purpose the changeover times shall be 10:00am Saturday at the commencement and 5:00pm Sunday, at the conclusion of the contact periods and to occur at McDonald's (omitted).
X is to spend any additional time with his Father at any other time, as agreed between the parties in writing.
The Father may telephone the child each Wednesday between 6.30pm and 7.00pm. This is not to be construed as requiring the telephone conversation to last half an hour. The Mother is to ensure that the child is available at these times and be allowed to speak to the Father in private. During holiday periods when the child is with the Father for a week or longer the same arrangement shall apply with respect to the Mother speaking to the child by telephone. If the child expresses a wish to speak to either parent at any other reasonable time that parent is to facilitate this occurring. Each party is to advise the other of any change in their telephone number.
The parties shall each forthwith take all steps necessary including arranging for suitable internet connexion to ensure that X is able to have Skype communication with his Father; and such communication shall occur in lieu of telephone communication and at the same time the telephone communication as per Order 7, unless the parties agree otherwise in writing.
CHANGEOVER & COMMUNICATION BETWEEN THE PARTIES:
Unless otherwise agreed between the parties in writing, all changeovers shall take place at McDonalds in (omitted).
The parties are each to comply as strictly as possible with the changeover times specified in these Orders.
Absent agreement between the parties in writing, and absent proper notice of reasons for any unscheduled delays at changeover, both parties are required to give each other a period of “grace” of no less or more than 20 minutes either side of the scheduled pick up/changeover time.
In the event that the Mother considers that X is too ill to be made available to spend time with his Father; she shall obtain a medical certificate from X's General Practitioner (GP) and shall, before taking X to the GP advise the Father of the time of the appointment and the name and contact details for the GP; and the Father may telephone the GP’s practice to speak with and obtain his own information from the GP as to X's health; and the Father may provide the GP with a copy of these Orders.
Each of the parties is restrained from permitting their partners to be present at changeovers; noting that it is still permissible for their partners to accompany them on the journey to changeovers so long as they are not present and do not participate in the changeovers.
Communication between the parties is to be by text message or by email, with the exception of emergency circumstances, where the parties be permitted to contact each other by telephone.
Each of the parties is to advise the other in writing of any new contact details and to take all reasonable steps to ensure that each is able to send and receive written communication by SMS or email to and from the other.
FURTHER GENERAL PARENTING ORDERS
The Mother is restrained from relocating the residence of the child from (omitted) without the Father’s permission unless the relocation is to an area closer to Canberra than (omitted).
Each party is to advise the other of any significant medical condition involving the child whilst he is in his or her care and of any appointment either makes for the child to attend on any health professional.
Each parent is restrained from taking X to see a counsellor, psychologist, social worker, play-therapist or psychiatrist without first obtaining the written permission of the other parent or a court Order; however such permission shall not be unreasonably withheld and the other parent is expected to contact the proposed service provider and make his or her own assessment as to the benefits to X of undergoing the proposed treatment, counselling or therapy.
Every child care centre and school, or other educational institution, at which X is enrolled or attends is hereby authorised to provide the Father with any and all information about X at his request and to advise him of and permit him to attend any events at the school or child Care centre to which parents are normally invited ; and it is noted that the Mother's agreement is not required by the child Care centre or school in Order for the Father to be so informed and/or participate.
The Mother shall not change the school at which X is enrolled without the Father's written permission.
The Mother is to provide the Father in writing with the name and contact details of each and every health Care professional who attends on X within 48 hours of the attendance, and advise him in writing of the purpose and outcome of the attendance; and such health Care professional is hereby authorised to provide any information concerning X to the Father at his request.
Neither parent is to denigrate the other or the other's current partner to X or in his presence or to permit anyone else to do so.
COUNSELLING & EDUCATION FOR THE PARENTS:
The Mother shall undergo counselling in the (omitted) region with a counsellor skilled in child development (as recommended by the Family Consultant in her March 2016 report) at (omitted) Child and Adolescent Counselling Service or Veritas House, or at such other counselling service in (omitted) as agreed by the Father and the independent children's lawyer.
The Mother shall provide evidence of completion of such counselling to the Court and to the Father within 7 days of completion.
In addition to the counselling outlined in Orders 15 and 16, both the Mother and Father shall undertake a parenting course that focusses on communication skills. Both parties must provide evidence of completion of this course within 7 days of completion by providing such evidence to the Court.
CONDITIONS FOR THE CHILD TO REMAIN RESIDING WITH THE MOTHER:
If at any time within the next 12 months the Father is contacted by any welfare agency in relation to a notification to them that X may be at risk from him, and the notification arises from allegations made by the Mother and is found to be without substance, then immediately:
(a)X shall reside with his Father until further Order;
(b)the Father shall forthwith re-list the matter for further hearing;
(c)and the welfare agency concerned is requested by the Court to provide a section 69ZW report about the allegation.
In the event that the Mother fails without reasonable excuse to provide X for contact with his Father on more than 2 occasions within any 6 month period, the Father has liberty to re-list the matter for the purposes of hearing an application for change of residency. For the purposes of this Order:
(a)A “reasonable excuse” must include at least a medical certificate as per Order 12, or other independent evidence (preferably documentary);
(b)A six month period shall commence from the first period where the Mother withholds the child from the Father on his scheduled visit. This means that if the Mother then withholds the child on a second scheduled visit within that six month period, then the Father shall be at liberty to have the matter re-listed for a change of residence for X.
(c)The Mother is formally on notice that failure to provide X, without reasonable excuse twice in any six month period is likely to result in a change in residence for X, with a reversal of the current contact Orders.
PASSPORT & TRAVEL:
In the event she has not already done so, the Mother shall immediately sign a passport application form for X and the passport shall be held by the Father.
In the event of the Respondent failing or refusing to sign all such documents as may be necessary to effect the issuing of a passport for X (born (omitted) 2010) (“the child”), the Registrar of this Court is immediately authorized to sign all documents necessary to enable the passport to issue pursuant to s106A of the Family Law Act 1975.
Pursuant to s11(1) of The Australian Passports Act 2005 the Applicant Father, MR BUNT (born (omitted) 1968) may apply for a passport for the child, X (born (omitted) 2010) without first obtaining the consent of the child’s Mother MS CHARRING (born (omitted) 1980).
The child’s passport shall be stored at the Canberra Registry when the child is not travelling. The passport must be returned to the Canberra Registry within 14 days upon return to the Commonwealth of Australia.
Both parents be permitted to travel with the child outside of the Commonwealth of Australia, upon the provision of an itinerary by the travelling parent to the non-travelling parents at least six weeks prior to the proposed travel.
Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Fact Sheet, attached hereto and these particulars are included in these Orders.
All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.
IT IS NOTED that publication of this judgment under the pseudonym Bunt & Charring is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 180 of 2012
| MR BUNT |
Applicant
And
| MS CHARRING |
Respondent
REASONS FOR JUDGMENT
Introduction
The primary issues in this very long-running parenting matter in relation to 6 year old X are quite limited. They concern (a) the geographical distance between the parties (the Father lives in Canberra; the Mother lives in (omitted)); (b) the Mother’s increasingly problematic conduct in not making X available to spend time with his Father, and (c) in consequence of the Mother’s conduct, whether there should be a change in primary residence for the child. Indeed, the Mother’s conduct, which has taken place over a very significant period of time, has now led to the Father making an Application that X now live with him.
The recommendations in a series of reports have consistently been that X live with his Mother and spend regular time with his Father, but with the qualification that if the obstruction of the Father’s time continues then a change in residence should be considered by the Court.
The latest family report adopts the same approach, as does the Independent Children’s Lawyer (“the ICL”).
The primary difficulties for the Court, on any view of the evidence, and having regard to the long history of the matter, are that even if there was to be a change in the child’s residence to the Father (a) there would still be the major issues of geographical distance between the parties that would have to be negotiated (in every sense), (b) there would still be the very fractious relationship between the parties (noting that neither party seeks to prevent the other parent from spending time with the child), and (c) perhaps most concerningly, given that the Mother has been the child’s primary Carer for all of his life, the Court must have significant regard to the high risk of distress for X being removed from his primary Carer. Such is recorded in the Report of Ms S (at par.90, noted below).
Because the Court must put the child’s best interests as paramount, pursuant to s.60CA of the Family Law Act 1975 (“the Act”), the history of the matter, together with the evidence as set out below, with much greater diffidence than usual, leads, in my view, to supporting and adopting in large measure the Orders as sought by the ICL as being in X’s best interests.[1] They include the proviso regarding the Mother’s compliance with the Orders and that if there is a relevant failure to comply, then there will very likely be a change in X’s residence. Although the Mother has had multiple chances and warnings to similar effect, this can and must be her very last chance.
[1] The ICL’s Orders Sought have been amended somewhat, with the modifications relating essentially to setting out in as detailed a form as possible the terms upon which X will continue to live with his Mother and the conditions that could likely change his residence, notably in relation to the Mother’s failure to comply with the Orders within a certain, specified time-frame, and the need for the provision of independent, preferably documentary, evidence in support of any difficulties in not making the child available to his Father.
Brief Background
The Mother has now re-partnered, as has the Father.
There have been three reports in this matter: by Ms S (dated 24th March 2016: Exhibit A); by Mr P (dated 16th February 2015: Exhibit B); and by Ms K (dated 3rd September 2013: Exhibit C).
The Report by Ms K focussed very much on allegations of possible risk of abuse of the child from the Father. In her recommendations, very summarily stated, Ms K found there to be no relevant risk that X should live primarily with his Mother but if the difficulties between the parents continued with the Mother restricting the Father’s time with the child, X should live with his Father.
In Mr P's Report, he commented (at par.31) that the Mother had/has an entrenched view about the Father posing a risk to the child. He noted that, at that time (in February 2015) Mr Bunt had no wish or intention to disrupt X living primarily living with his Mother. The Father simply wanted to be part of X’s life on a regular basis. That Report recommended that X continue to live with his Mother in (omitted) and spend regular time each month with his Father in Canberra, as well as half of school holidays.
In Ms S's Report, the Mother (Ms Charring) was recommended to undergo counselling, and for the next 12 months for X to remain in his Mother’s Care. This was conditional on the Mother desisting from making adverse notifications to Care and Protection authorities in relation to the Father, which notifications had intensified. All such reports had been found to be without foundation. If those notifications did not cease, Ms S recommended that X live with the Father.
During the 12 months that X lived with his Mother, post the final hearing, Ms S recommended that the child spend time with his Father fortnightly, each alternate weekend. However, if there was no compliance by the Mother with this arrangement, like the earlier experts, Ms S recommended a change in the child’s residence.
For the purposes of the hearing, the ICL’s subsequently filed Orders sought provisionally or conditionally proposed that the child live with the Mother, but in the event of certain named events, there would be a change in residence for X.
Orders Sought
The Applicant Father filed his Final Orders Sought, annexed to his Affidavit filed on 20th April 2016. They are as follows (some minor typographical corrections have been made):
1) That the mother and father have shared (equal) parental responsibility for the child.
2) That the child live with the father.
3) That the father is to give the mother opportunity to provide input and direction in relation to all major decisions affecting the child’s education and medical needs.
4) That the father is to give the mother as much notice as is practicable in relation to all major long-term decisions affecting the child.
5) That the mother will have physical contact with the child as follows:
a) From 5:00pm Friday until 4:00pm Sunday two weekends each calendar month. The particular weekends each month will be negotiable between the mother and father within each month, in order to provide flexibility to enable the child to attend/participate in any special events occurring in the month.
b) In addition, 1 week of each mid-year school holidays: from 10am Monday until 3pm Sunday.
c) In addition, 10am December 24 until 10am December 31 in each alternate year commencing Christmas 2016 with the mother having this contact from Christmas 2017.
d) In addition, the father will endeavour to accommodate where practicable, physical contact with the mother on special one-off occasions but having regard for the financial costs in doing so and the physical demands of the child.
6) That the mother will have telephone/electronic contact with [the]child at any reasonable time she wishes and that the father is to facilitate this process to ensure that the child is available, where practicable. During the child’s visits with the mother, this same arrangement shall apply with respect to the mother [to] facilitate the child’s telephone/electronic contact with the father.
7) That the child will have telephone/electronic contact with mother at any time he wishes and that the father is to facilitate this process.
8) That the father is to authorise and actively facilitate the mother’s access to any school the child attends including the provision of copies of school reports and other material commonly sent/made available to parents and to furnish (at her expense) copies of school photographs.
9) That either parent may attend school events to which the parents are normally involved.
10) That the mother and father share (equal) costs for the child’s educational related costs including: school fees, uniforms, excursions/camps, sports gear, musical instruments, art classes, cooking classes, other tuition and laptop/table programs.
11) That each party is to advise the other of any significant medical condition or other serious event whilst he is in his or her Care and any appointment either makes for the child to attend a health professional.
12) That if either party proposes to take the child on a holiday for a week or longer he or she is to notify the other of where the child will be taken and to provide a contact number in case of emergency.
13) That the child is permitted to travel internationally where practicable and that either party is to notify the other of where the child will be taken and to provide a contact number in case of emergency. While overseas, regular contact between the child and the absent parent is to be made available.
14) That the court issue an order providing consent on the mother’s behalf for an ‘Applicant for an Australian Passport – Child’ in response to the mother’s unwillingness to provide parental consent to application forms provided to her pursuant to the Australian Passports Act 2005.
15) That neither party is to take the child to any counsellor without prior notice as will give the other the opportunity to discuss any proposed counselling with the proposed counsellor.
16) That the mother is prohibited from taking any action, making any allegations or taking any steps to undermine or detract from the Father’s relationship to the child nor damage the reputation of the Father.
17) That the overarching principle and primary intent of these orders is regular, frequent and flexible contact between the child and each parent.
The Respondent Mother filed a Minute of Orders Sought (Revised) on 21st April 2016. Her Orders sought are as follows:
1. That in these orders the term “contact” means spending time with.
2. That all previous orders in relation to the child X born (omitted) 2010 (“the child”) be discharged.
3. That the Mother have sole parental responsibility with respect to the child.
4. That the mother to give the father notice in relation to all major long term decisions she makes with respect to the child pursuant to Order 3
5. That the child live with the Mother.
6. That the child’s surname is changed from Bunt to Charring-Bunt.
7. That the child spend time with the Father as follows
8. That in 2016 contact shall be as follows:
(a) From 4:30pm on Friday until 4:00pm on Sunday every second weekend starting 29 April 2016.
School Holidays
(a) In the first and second of the mid-year holidays from 10:00am Thursday until 4:00pm Sunday.
(b) In the last mid-year contact from Wednesday 10:00am until 4:00pm on Sunday. This also if the school holidays fall within a scheduled weekend visit, that will be included as a weekend visit.
(c) During the Christmas holidays from 10:00am on 21 December until 10:00am on 28 December and from 10:00am on 11 January until 10:00am on 18 January 2017. If the school holidays fall within a scheduled weekend visit, that will be included as a weekend visit.
9. That from 2017 weekend contact shall be confined to school terms and holiday contact shall be as follows:
(a) In the mid-year holidays in odd numbered years from 10:00am Saturday to10:00am on the following Saturday in the first week of the holidays and in other mid-year holidays from 10:00am Saturday until 10:00am Saturday in the second week of those holidays. If the school holidays fall within a scheduled weekend visit, that will be included as a weekend visit.
(b) In the mid-year holidays in even numbered years from 10:00am Saturday to10:00am on the following Saturday in the second week of the holidays and in the other mid-year holidays from 10:00am Saturday until 10:00am Saturday in the first week of those holidays. If the school holidays fall within a scheduled weekend visit, that will be included as a weekend visit.
10. That from 28 April 2017 that the child spend time with the Father on one weekend per month as follows:
(a) From 4:30pm Friday until 4:00pm Sunday on the last weekend of each month.
11. That the changeovers are to occur at McDonald's (omitted). Notwithstanding the times in these orders the parties are to realise that traffic conditions may be a problem and that they are to text each other if either is going to be late.
12. During holiday periods when the child is with the father for a week or longer, if the child expresses a wish to speak to the mother at any reasonable time that the father is to facilitate this occurring. If the child expresses a wish to speak to either parent at any reasonable time that parent is to facilitate this occurring. Each party is to advise the other of any change in their telephone number.
13. That communication between the parties is to be by email only when the child is with the mother. Communication is to be only in regards to the child only. In the event of an emergency when the child is with the father, only at this time is the father to verbally call the mother.
14. That the mother is restrained from relocating the residence of the child from (omitted) without the father’s permission unless the relocation is to an area closer to Canberra than (omitted).
15. That the child is not to be granted an Australian passport from either the mother or father and is to remain in Australia.
16. That the mother is to provide to the father details of any health professional involved with the child to authorise that person to provide any information the father may request. This order does not purport to require such person to provide any information.
17. That the mother is to authorise any school the child attends to provide the father with copies with school reports sent to parents and to furnish (at his expense) copies of school photographs. The father currently has access to the schools application “(omitted)” for the distribution of weekly newsletters and upcoming school events. This order shall not be construed as requiring the school to provide any information to the father.
18. That each party is to advise the other of any significant medical condition involving the child whilst he is in his or her car of any appointment either makes for the child to attend on any health professional.
19. That neither party is to take the child to any counsellor without such prior notice as will give the other opportunity to discuss any proposed counselling with the proposed counsellor.
20. That either parent may attend school events to which parents are normally involved. This order does not purport to require the school to permit this to occur.
21. That neither party is to denigrate the other within the hearing of the child or permit any other person to do so.
22. That if either party proposes to take the child on a holiday for a week or longer out of the state of New South Wales he or she is to notify the other parent of where the child will be taken and to provide a contact number in case of emergency.
Special Days
(a) That the child spend time with the Mother on Mother’s Day if he is not otherwise living with the Mother on that day.
(b) That the parties share spending time with the child at Easter, Christmas and Birthday. The parties shall facilitate any change so that each parent spends either Easter, Christmas or Birthday period with the child each year.
Among other things, it might be noted here that the Mother seeks an Order that the child spend Mother’s Day with her but not corresponding Order that the child spend Father’s Day with the Father.
The Independent Children’s Lawyer filed her Orders Sought as part of her Written Submissions on 21st June 2016. They are as follows (also with some minor typographical errors corrected):
1. That the parents have equal shared parental responsibility for X;
2. That subject to orders 17 and 18 hereof, X reside with his mother;
3. That during school terms X spend time with his father each second weekend, such weekend contact periods to commence, unless the parties agree otherwise in writing, from 4: 30 pm when the changeovers shall occur at McDonald's (omitted), and ending at 4: 30 pm on [Sunday].
4. That unless the parties agree otherwise in writing, weekend time as set out in order 3 shall be suspended during school term holidays, and instead X shall, during each and every school term holiday, spend from 10am on the first Saturday falling after the conclusion of the school term until 5pm on the Sunday falling in the middle of the term school holidays with his father; the changeovers to occur at McDonald's (omitted) unless the parties agree otherwise in writing;
5. That unless the parties agree otherwise in writing, X shall spend two non consecutive blocks of eight days with his father during the long summer school holidays at the conclusion of the 2016 school year, such weeks to fall in the 3rd and ·5th weeks of the summer school holidays, from 10 am on Saturday until 5pm on the Sunday of the following week;
6. That commencing in the long summer school holidays in 2017, X shall spend the first half of each long summer school holiday with his father, in each year ending in an odd number, and the second half in each year ending in an even number or zero, and for this purpose the changeover times shall be 10 am Saturday at the commencement and 5 pm Sunday, at the conclusion of the contact periods and to occur at McDonald's (omitted);
7. That the parties are each to comply as strictly as possible to the changeover times specified in these orders and must text the other in the event either is going to be late;
8. That weekend contact time provided in order 3 hereof is suspended during the long summer school holidays commencing from 2017.
9. That X spend additional time with his father at other times as agreed between the parties in writing;
10. That each of the parties is restrained from permitting their partners to be present at changeovers; noting that it is still permissible for their partners to accompany them on the journey to changeovers so long as they are not present and do not participate in the changeovers;
11. That order 12 of the orders made by consent on the 7th of May 2015, relating to telephone communication shall continue to apply;
12. That the parties shall each forthwith take all steps necessary including arranging for suitable internet connexion to ensure that X is able to have Skype communication with his father; and such communication shall occur in lieu of telephone communication and at the same time the telephone communication was to have occurred pursuant to order 12 of the orders made of on the 7th of May 2015, unless the parties agree otherwise in writing;
13. That orders 13, 14, and 17, of the orders made on the 7th of May 2015 continue to apply;
14. That each parent is restrained from taking X to see a counsellor, psychologist, social worker, play-therapist or psychiatrist without first obtaining the written permission of the other [parent] or a court order; however such permission shall not be unreasonably withheld and the other parent is expected to contact the proposed service provider and make his or her own assessment as to the benefits to X of undergoing the proposed treatment, counselling or therapy;
15. That the mother shall undergo counselling in the (omitted) region with a counsellor skilled in child development (as recommended by the Family Consultant in her March 2016 report) at (omitted) Child and Adolescent Counselling Service or Veritas House, or at such other counselling service in (omitted) as agreed by the father and the independent children's lawyer;
16. That the mother provide evidence of completion of such counselling to the Court and to the father within 7 days of completion;
17. If at any time within the next 12 months the father is contacted by any welfare agency in relation to a notification to them that X may be at risk from him, and the notification arises from allegations made by the mother and is found to be without substance; then
(a) X shall reside with his father until further order;
(b) the father shall forthwith re-list the matter for further hearing;
(c) and the welfare agency concerned is requested by the Court to provide a section 69ZW report about the allegation;
18. That in the event that the mother fails without reasonable excuse to provide X for contact with his father on more than three occasions within 12 months after the date of these orders then the father has liberty to re-list the matter for the purposes of hearing an application for change of residency;
19. That in the event that the mother considers that X is too ill to be made available to spend time with his father; she shall obtain a medical certificate from X's gp [sic: GP] and shall, before taking X to the gp [sic: GP], advise the father of the time of the appointment and the name and contact details for the gp [sic: GP]; and the father may telephone the gp's [sic: GP] practice to speak with and obtain his own information from the gp [sic: GP] as to X's health; and the father may provide the gp [sic: GP] with a copy of these orders;
20. That every child Care centre and school [or other educational institution] at which X is enrolled or attends is hereby authorised to provide the father with any and all information about X at his request and to advise him of and permit him to attend any events at the school or child Care centre to which parents are normally invited ; and it is noted that the mother's agreement is not required by the child Care centre or school in order for the father to be so informed and/or participate;
21. That the mother shall not change the school at which X is enrolled without the father's written permission;
22. That each of the parties is to advise the other in writing of any new contact details and to take all reasonable steps to ensure that each is able to send and receive written communication by sms or email to and from the other;
23. That the mother is to provide the father in writing with the name and contact details of each and every health Care professional who attends on X within 48 hours of the attendance, and advise him in writing of the purpose and outcome of the attendance; and such health Care professional is hereby authorised to provide any information concerning X to the father at his request;
24. That neither parent is to denigrate the other or the other's current partner to X or in his presence or to permit anyone else to do so;
25. That in the event she has not already done so, the mother shall immediately sign a passport application form for X and the passport shall be held by the father.
The Evidence of the Parties
The partners of the parties filed no material, thus the only witnesses were the parties, and the Family Consultant. The parties’ evidence, quite limited as it was, was as follows.[2]
[2] The Family Consultant, Ms S, gave evidence before the parties at the final hearing. Her evidence is considered later in these reasons.
The first series of questions (which were more “comments”) from the self-represented Mother to the self-represented Father related to arrangements for the Father to receive information directly from X’s school. The Father said that the Principal of the school advised him that the school was only to provide information to him if permitted or authorised by the Mother. This was so notwithstanding that there exists an Order authorising the school to provide any information directly to the Father.
Next, there were questions regarding the Mother’s partner, Mr J. It was more a case, for the Father, of him seeking more information about him – noting that, subsequent to the hearing, there was an altercation with Mr J which led to an apprehended violence Order being taken out against Mr J. In further comments generally, the Father said that his Wife remained anxious about any encounter with the Mother, which was the reason why the Father’s Wife did not attend changeovers.
The Father also said that he supported generally his Wife meeting the Mother but also said that he had no real confidence that there could be such a meeting in circumstances where (as the Court had also noted) there remained immense distrust and tension between the parties.[3]
[3] Generally, see the discussion at T 28 – 31.
In answer to questions from the ICL, the Father said that he did not agree that counselling for the Mother and for X to remain living with her, based on his four years or so of frustration in securing regular and unrestricted time with his son, was in his best interests. He confirmed that he had little or no confidence that there would ever be compliance by the Mother with the Orders.[4]
[4] T 32 – 33.
The Father then explained the arrangements for school and other practical matters for X should he live primarily with him. I need not detail such matters.[5]
[5] See, for example, T 36 – 37.
In response to a comment in the family report of Ms S (at par.104) which was to the effect that a change in residence would likely “damage” X at least in the short-term, the Father rejected that any relevant damage would be suffered by the child. He outlined various things he would do to ensure that X was in regular contact with his Mother when he was living with him.[6] He spoke quite frequently about the need for X to have “equal unfettered access to his Mother.”[7] That said, the Father acknowledged that the geographical logistics remained a significant impediment in being able to fulfil his contention about “unfettered access” to the Mother.
[6] T 37.
[7] T 38.
The Father confirmed that there was nothing “lacking” in the Mother’s Care of X.[8] He also confirmed that his long experience of the Mother’s non-compliance, and in his view, the lack of accountability for it, ultimately led him to the view that he had no other option other than to seek a change of the child’s residence. He also said that, in his view, there were better educational opportunities for the child if he resided with the Father in Canberra. But in terms of day to day care, he said that X will be no worse off, and no better off, if he was to live primarily with his Father in Canberra.[9]
[8] T 38.
[9] T 39.
The Mother’s evidence was, summarily stated, as follows.
First, she said that she had complied with Orders to make X available to spend time with this Father, and that the ongoing contest was not because she was not doing so, as alleged by the Father. She also noted, at a little length, that the Father (she said) had fallen behind in his child support payments.
Secondly, she confirmed that X had not spent time with his Father between May and September 2015.[10]
[10] T 41.
Thirdly, the Mother confirmed that she does not [now] believe X to be at risk of sexual abuse from the Father. She did say that she has concerns about X’s behaviour upon his return from spending time with his Father; it was not, she assured, about “risks” with the Father, but more that she did not understand (my emphasis) X’s behaviour upon his return to her from being with his Father. The Mother also said that she had gone to counselling to assist her understanding of X’s behaviour. This led to the following exchange with the ICL:[11]
So if the court were to order, make orders in terms that allow – that don’t change X’s residence automatically but make his continued residence with you contingent on your attending counselling to receive some education about childhood development and compliance with contact orders, how could the court be satisfied that you would comply with those orders?‑‑‑Because they’re orders that are in the best interests of X.
But, madam, you haven’t complied with many of the orders previously?‑‑‑And that was because of my concern for X and not having any knowledge or understanding. Which I think the counselling would be good for me to get a better understanding of child development which I haven’t had in the past. It was never a suggestion that I should – that I could get any. Which I think might have been beneficial.
[11] T 43.
The Mother confirmed that she had sought out some counselling to assist her when she was previously living in (omitted). But even after having had some counselling, she still continued to make reports against the Father to Care and Protection services, which were confirmed to total 19; none of them were determined adversely to the Father.[12] Indeed, the last Report was only in the month prior to the trial. The Mother said, either naïvely, disingenuously, or otherwise, that she did not know that after each notification as made by her to Care and Protection services the Father was contacted. Accepting that she is a somewhat unsophisticated young woman, I have difficulty in understanding that she would not have at least a general idea that the Father would necessarily be caught up in each and every report made by her to relevant authorities against the Father.
[12] T 44.
The Mother said that X does not like telephone calls; he prefers seeing his Father in person. She also said that her finances were limited and that she was only now looking into getting an internet connection so that Skype could be used.[13]
[13] T 45.
The Mother confirmed that she will comply with Court Orders; this was in the context of the ICL challenging her about her history of non-compliance.[14] She also said that she agreed with the recommendations of the Family Consultant that provided for an increase in X’s time with his Father.
[14] T 46.
In answer to questions from the Bench, which referred to comments by the Family Consultant (Ms S: Report at par.92), the Mother said that (a) she was not bitter, and (b) she did not regard herself as hostile to the Father. Indeed, she denied that the relationship with the Father was “high conflict.”[15] As with earlier comments, this struck me as either naïve, strangely imperceptive, or worse. It was/is genuinely difficult to make any other, more specific assessment.
[15] T 53-54.
The Mother also said that, in her view, it was not necessary for the Father to confirm each visit for the child. The Mother said that all that was needed was for the father to notify her when he was leaving Canberra. Given the history of difficulties in relation to the child spending time with the Father, such comments rather defy the reality of difficult communication and changeovers between these parents.
In response to these comments, the Father suggested that a quick telephone call between the parents, he thought, would be a quicker and more reliable means of communication.[16] By way of general comment, accepting the weakness of human nature generally, not least in the capacity to tell the truth especially where (as here) parents have been warring over changeover and other arrangements, it was a response that showed good-will and common sense from the Father.
[16] T 55.
At the conclusion of the Mother’s evidence, again the ICL asked her how the Court could be confident of her compliance with any Orders given her history of non-compliance. She said that she gave her word that they would be complied with.[17]
[17] T 56.
Evidence of the Family Consultant
The evidence of the Family Consultant, Ms S, was in two parts: her report Exhibit A, dated 24th March 2016; and her brief oral evidence. I will consider this evidence in that order.
In her Report, at par.24, Ms S noted that the Father conceded that he did not think a change of residence to be in X’s best interests, but she also noted that the Father said that apart from a change in residence he did not know what other option he might have to secure a relationship with his son.
At par.35, Ms S recorded that, according to the Father, the resolution of the parenting dispute came down to the parties “being able to get on better.”
At pars.60 and 61, Ms S stated:
Regarding Mr Bunt’s application to have X living with him, Ms Charring commented that she did not know why he was taking such a step. Ms Charring surmised that Mr Bunt was not happy that she had been granted sole parental responsibility and did not believe that he wanted to pay child support anymore because he had fallen a month behind.
In terms of communicating with Mr Bunt, Ms Charring said that she was unable to talk to him. She said she had tried to communicate via email. However in his responses, Ms Charring said Mr Bunt would accuse her “of things all the time”. She showed me an email that she had received the week before her interview regarding X attending school. In the email, Mr Bunt had accused Ms Charring of unilaterally making the decision about which school X should attend. He had used words such as that he was deeply concerned about her actions. Ms Charring said that she had given the school Mr Bunt’s details.
Ms S recorded (at pars.64 and 65) the Mother’s comments about X’s behaviour which led her to believe that the child was at some risk of sexual abuse while in his Father’s Care. However, because the Mother no longer holds any view that the child is so at risk with the Father, I need not consider these aspects of Ms S’s evidence.
In the “evaluation” section of her Report, Ms S noted the following; first at par.89 (it is as well to set it out in full; the Court has added the sub-paragraph numbers for ease of reference):
a) X’s parents have been completely unable to establish a cooperative parenting arrangement since separating. In my opinion, this must be attributed to Ms Charring’s total inability to see Mr Bunt as having anything to contribute to her only child and further to her desperate wish to protect X from a man she portrays as a violent paedophile. Indeed, given her beliefs, Ms Charring must be very frightened and keen to protect her only child.
b) In her report dated 3 September 2013 Ms K in her report attributed Ms Charring’s behaviour and Mr Bunt’s response to their attachment styles. She concluded “Ms. Bunt [Ms Charring] had quite a difficult upbringing within which her attachments were compromised and disturbed and this is clearly affected her functioning and relationships since that time and is also likely to have set the context of understanding her reaction to the breakdown of the relationship with her husband thereby precipitating the current Court case”.
c) Ms K assessed Mr Bunt’s attachment style as “seemingly quite anxious” and saw him as having “high dependency needs, such that he craves the attention, affection and acceptance of others”. This anxiety was reflected in Mr Bunt’s presentation to me and indeed in his persistence in this dispute.
d) Ms Charring’s persistence in viewing Mr Bunt as a very damaging figure in their son’s life will increasingly impede her ability to allow her son to develop into a well-balanced, male child confident in his own gender. Mr Bunt has provided half of X’s genetic makeup and X should be allowed to be proud of his heritage. Ms Charring has been totally unable to resolve the rejection she felt by Mr Bunt prior their separation and been unable to separate her own feelings from X’s needs. This does not bode well for X’s future need to separate from his mother and to develop into an independent person with parental support.
e) There is no doubt that exposure to ongoing interparental conflict impacts negatively on child well-being (Burke et al, 2007). Burke et al (2007) commented “The association between intense marital conflict and children’s poor adjustment has been repeatedly demonstrated, and children are found to have more psychological problems when their parents are in conflict, either during marriage or following divorce (p2)”.
At par.92, Ms S bluntly opined:
To an extent, Mr Bunt recognises the importance of X having a relationship with his mother although his suggestion of merely reversing the current arrangement displayed little understanding of X’s current attachment to his mother and how difficult a prolonged separation from her would be for him.
A bitter, hostile, dysfunctional woman, Ms Charring has no understanding of the importance of Mr Bunt having a role in their son’s life and indeed given her perception of him, continues to actively seek to exclude him. The aetiology of this perhaps reflects her own upbringing when she experienced significant separations from her father and his untimely death when she was about 10. Apparently Ms Charring herself has little experience of a caring, involved father to assist her to recognise the importance of a father in a child’s life.
And at par.94, she observed:
X presented as a bright, engaging little boy suggesting his residential arrangements thus far have not been unsatisfactory. The sole risk of continuing them is that Mr Bunt will continue to be denigrated and to have as minimal time as Ms Charring can achieve with X. Indeed even on the day of interviews for this report, Mr Bunt alleged Ms Charring made further notifications to the local child Protection agency about his Care and there is little indication that Ms Charring will ever adopt a more conciliatory approach.
In relation to any possible change in residence, Ms S said (at par.99):
The benefit of changing X’s residence would be to allow him to have a positive, caring relationship with his father and certainly avoid him growing up to assume his mother’s perception of his father as a violent paedophile. Although X is at an age when his attachments are established, his ability to adjust to his father and his father’s new wife as his primary caring figures is very uncertain. Distance will also make regular time with his mother problematic and necessarily relatively infrequent if he moves to live with his father.
Summarising the difficulties and issues, at par.101, Ms S said:
The key issue in this matter is Ms Charring’s entrenched belief that Mr Bunt has sexually abused their son. In advising evaluators how to assess the validity of sexual abuse allegations Herman (2009) usefully lists the following hypotheses:
· “The child has been sexually abused by the suspected perpetrator
· The child has been sexually abused, but not by the suspected perpetrator
· The child has been sexually abused, but has denied or recanted abuse
· The child has not been sexually abused, but has developed false memories for events that never actually occurred
· The child has not been sexually abused, but is deliberately lying about being abused
· The child has not been sexually abused, and the allegation is based on a sincere misunderstanding of the child’s verbal or non-verbal behaviour by a concerned or mentally ill adult
· The child has not been sexually abused, and the allegation is based on a malicious false accusation by an adult or other child who is trying to achieve some specific goal (p262)”.
Mr Bunt would certainly adopt the last hypothesis. In my opinion however, Ms Charring is a concerned, rather than a mentally ill adult, who believes her child has been sexually abused based on her misunderstanding normal child masturbatory behaviours.
In relation to any possible change in residence, Ms S said, at par.104:
In recommending the most appropriate arrangements for X, the risk of changing his residency must be weighed against the risks of him remaining with his mother. Precipitously removing X from his mother’s Care in response to her beliefs could be deemed a highly punitive action against Ms Charring and not one that was likely to alter her belief system at all. It would also in my view, damage X at least in the short-term and Mr Bunt’s capacity to manage a very unsettled child and a new marriage is untested.
The distance in this matter is a further issue that makes frequent contact for X with both parents problematic.
Finally, in her recommendations (at pars.105 – 108) Ms S ultimately recommended:
105. That Ms Charring undergoes counselling with a counsellor skilled in child development;
106. That for the next 12 months, X remains in his mother’s Care and that he remains with her in the long term if she desists from any other notifications and/or sexual abuse allegations in the next 12 months;
107. In the event that Ms Charring cannot comply with [par.106], a change of residency should be considered;
108. That X has fortnightly weekend contact with his father to build up his relationship with his father and stepmother;
109. If Ms Charring does not comply with 108, a change of residency should be considered in 12 months.
In her relatively brief oral evidence, Ms S noted the following.
First, she confirmed to the ICL that if the Mother did not attend the counselling recommended to the Mother, and her negative beliefs about the Father continued, the child risked being exposed to the Mother’s adverse beliefs about the Father. I note this notwithstanding the Mother’s later evidence to the effect that she resiled from her oppositional beliefs about the Father posing some risk to the child.
Secondly, it may be, Ms S said, that the Mother’s adverse views of the Father may also or ultimately be related to the Mother not understanding, or properly doing so, the child’s behaviours. In part, this possible misunderstanding by the Mother was one of the reasons why it was recommended that the Mother undergo some educative counselling, particularly in relation to childhood behaviour and development.[18]
[18] See the discussion at T 11- 13.
Thirdly, Ms S agreed with the description of the Mother that she was not malicious but perhaps more mis-guided and ill-informed.[19]
[19] T 12.
Fourthly, importantly, Ms S agreed that if there were to be any more reports by the Mother to Care and Protection, then no further chances for the Mother should be permitted, and X should then go to live with his Father.[20]
[20] T 17.
She also confirmed that, in her view, the Mother will use any excuse to prevent X from spending time with his Father. Likewise, she said that there were multiple parenting options to assist the Mother in coping with any difficult behavioural situations involving X.[21]
[21] T 17 – 18.
In answer to questions from the Father, who pointed out the litany of problems in attempting to co-parent with the Mother, and the regular adverse comments levelled at the Mother in each of the three Reports before the Court, Ms S said that her main reason for not recommending a change of residence for the child was the “unsettling effect” on the child and the relatively limited time that the child had actually spent with the Father.[22]
Additional Evidence – Post Trial
[22] T 21 & 22.
Following the trial, the Court sought an update from the parties, and the ICL, regarding whether there has been a continuation of the problems of (a) notifications to Care and Protection against the Father, and or (b) whether the Mother has been otherwise complying with the Orders and facilitating the child’s time with the Father.
Leaving aside various email correspondence, which again attests to the highly troubled co-parenting relationship, the Father filed material promptly; the Mother did so very late in the piece.[23] By affidavit, filed 2nd November 2016, the Father deposed as follows:
[23] The ICL did not file any updating information.
(a)There had been no further reports, as far as he was aware, to Care and Protection services;
(b)The Mother had made demands for the child to be returned earlier than scheduled on two occasions, and had threatened the Father that if this did not occur she would call the police to have a “welfare check” performed;
(c)There has been no telephone time between the Father and the son as prescribed in the Orders. The Father said that his telephone calls go unanswered;
(d)One weekend time (on 24th June 2016) was initially postponed, after the Father had left Canberra to attend changeover at (omitted) with the Mother then sending a “text” message to the effect that there was snow, but also later “texting” to confirm to the Father that the snow had stopped. Thus, there was much “to-ing” and “fro-ing” on that occasions which ultimately meant that the Father did not spend time with X on that weekend;
(e)The Father also deposed generally that it was common for his time with the child to be curtailed, for example, by the Mother arriving for changeover perhaps between 15 and 30 minutes late, and at other times, pick-up times would be brought forward, thereby reducing the Father’s time with the child. He gave a wide variety of reasons, given by the Mother, for these sudden and or regular changes of time;
(f)The Father said that in early May 2016 the Mother’s partner, Mr J, abused him, which led to an apprehended violence order being taken out against Mr J for 12 months;
(g)In early September, the Father said that the Mother advised him that certain members of her family were present for changeover and that changeover was to be at the (omitted) Police Station. Comment: I pause here to note that in a lengthy email from the Mother to the Father (and copied to the ICL and the Court, dated 6th September 2016) she explained that the reason for the attendance of members of her family on 4th September at changeover was essentially to facilitate any possible recovery of the Mother’s car due to flooding between (omitted), (omitted) and (omitted). In this same email, the Mother confirmed that she told the Father, among other things, “to grow up”, while the Father said that he was subjected to the Mother’s “abusive, angry vitriol.”
(h)The Father’s other complaints relate to the Mother not signing a passport application, pursuant to Orders made on 28th April 2016, and various and more generalised other “time with” parenting issues such as in relation to school holidays;
Also more generally, the Father complained that the Mother continues to deny him having what he describes as a “participative relationship” with X, such as in relation to school events and school information; such matters, however, can readily be remedied by the usual Order in relation to the Father having access to all relevant school notices, reports and the like, which the Father has actually done anyway. Having made this complaint but then noting that he has obtained such information directly from the school, in my view, rather tends to undercut this particular complaint.
By affidavit, filed only on 17th November 2016 (with no prior leave for its lateness having been sought), Ms Charring deposed as follows (very summarily stated):
(a)Paragraphs 5 – 23 detail a few instances (but in some detail) regarding “contact” arrangements between the parties and difficulties, many of them logistical given the distances involved for both parties, regarding (i) arrival times for changeover in (omitted), (ii) alleged physical contests between the Father and the Mother’s partner, and (iii) the Father’s alleged withdrawal of consent to X continuing “play therapy” sessions with his counsellor, “Ms J.”
(b)Paragraphs 24 – 29 canvass comments attributed to X regarding (i) his low regard of the Father’s Wife, (ii) how she is allegedly scared of Mr Bunt, and [unsurprisingly] X allegedly thinks that Ms Charring is a much better Mother than is Mrs Bunt, and (iii) some ongoing toileting problems.
(c)The Mother then outlined a schedule of pick-up times that had taken place between April and October;
(d)The Mother confirmed that there had been no further notifications to Care and Protection services since the final hearing. She also said (par.35) that telephone times between Father and son had not occurred, and how, in keeping with her evidence at trial, X did not like telephone calls but was much happier with speaking with her (when he was obviously staying with his Father) via FaceTime. She also deposed that because her child support payment had declined (because X was spending more time with his Father) FaceTime was better and more cost effective for her.
Of course, in relation to the additional but untested evidence of the parties, the Court can make no findings in relation to them. It is sufficient to note that, in general terms, the additional evidence provided by each party simply confirms that the co-parenting relationship remains very difficult, but somehow to some degree, the parties sort of “muddle through.”
For the sake of completeness I should note that, pursuant to Order 5 of the Orders made on 27th October 2016, the ICL was granted leave to file additional submissions regarding the parties’ further affidavit material. She was required to do so seven days after the Mother filed her material. I have noted above that the Mother’s material was filed quite late, on 17th November; however, as of close of business on 24th November 2016, the ICL had not filed any submissions. Therefore, in accordance with Notation A to the Orders of 27th October 2016, the judgment has been written without the benefit of any further submissions from the ICL.
Submissions
The Applicant Father filed his Written Submissions annexed to his Affidavit filed 19th May 2016. These are set out in full below (emphasis added – bold and underlined):
1. I am the Father of X (the 'child').
2. My date of birth is (omitted) 1968 and I reside in Canberra, ACT
3. The 'Final Orders Sought' as filed in the father's Affidavit of 20 April 2016 were formulated pursuant to the provisions of s60CA of the Family Law Act1975 Cwlth (the 'Act’) and underpinned by a primary focus on the child having a meaningful, fertile relationship with both of the child's parents characterised by frequent, ongoing between the child and his parents.
4. The primary impetus for the father seeking the final orders relates to s60CC3(c) and 3(ca) of the Act given Mother's demonstrated sustained history over four years of non-compliance, coupled with mother's ostensible future incapacity to comply with parenting orders and adopt behaviour that would satisfy s65DAA 5(b) and 5(c) of the Act. This disposition of the mother was explicitly called into question and challenged by His Honour Judge Neville at the trial hearing of the Federal Circuit Court of Australia (the 'Court') on 28 April 2016.
5. Significant momentum and urgency has thrown its weight behind the orders being sought by the father in respect of s60CC 2(b) of the Act as a result of the child's exposure on 1 May 2016 to an unprovoked verbal and physical assault on the father by the mother's de facto partner Mr J and this, in full view of the child. This serious event resulted in police involvement (Snr Constable J, incident no. (omitted)) - see Annexure A - AVO of Cowra Local Court of 4 May 16 and a 12 month restraining order being imposed on Mr J. Mr J's verbal tirade was pursuant to the dictates of the mother, being a verbatim continuation of the mother's dishonest allegations regarding the father's sexual, physical and emotional abuse of the child - facts repudiated and by His Honour Judge Neville at the trial hearing on 28 April 2016.
6. Further weight has come to bare as a result of the mother fomenting strife on 16 May 2016 by reporting to the child's play therapy counsellor Ms J of (omitted) Women's Health Centre that the father has been sexually abusing the child at the weekend contacts in May 2016. Phone conversations from Ms J to the Father at 11:43am on 17 May 2016 confirmed that the child had not disclosed nor otherwise displayed any behaviour consistent with the mother's fresh allegations and that the child's counsellor would have no knowledge of the alleged behaviour in the absence of the mother’s disclosures.
7. In respect of s60CC 3(c) and s65DAA 5(b) and (c) of the Act, concerns continue to exhibit themselves regarding the mother's capacity to communicate with the father, resolve difficulties that may arise in the implementation of the orders and adhere to the requirements of the Orders. This exhibits itself in the father's continued denial of opportunities to speak with the child via the telephone for the weekly Wednesday evening phone call pursuant to Order 12 the 7 May 2015 Orders. The father's phone calls continue to go unanswered.
8. Further evidence of the Mother's continued contempt for the court orders is evidenced by the mother's failure to sign the father's passport application for the child. The mother has been provided with generous opportunities to comply. The requirement to do so is noted in the orders issued by His Honour Judge Neville dated 28 April 2016. See Annexure B - Passport Application
The Issues of Primary Residence and Time With Arrangement
9. The father remains committed to and [sic] his position unchanged with regard to his 'Final Orders Sought' as filed in the father's affidavit of 20 April 2016 with his overarching principle and primary intent of these orders being regular, frequent and flexible contact between the child and each parent.
10. The Father continues to maintain that a change of residency for the child such that the child lives with the Father is in the best interests of the child for the following reasons:
• The father guarantees continuity of the child's access with the mother, with adherence to the orders deemed by the father as a minimum requirement and categorically, not a limit to such access.
• The father acknowledges that it is in the child's best interests for the child to be able to share with both parents and extended family, occasions and events that are of special significance to the child and the parents and the child's extended family. In this, the father is committed.
• The father guarantees that the child will have ongoing, regular contact with the child's extended family including grandparents, uncles, aunts and cousins on both the paternal and maternal sides of the family. This is consistent with s60CC 3 (b) (ii) of the Act.
• The father's strong focus and commitment to education, having completed three tertiary qualifications including the ongoing CPD requirement of the father's profession provides a solid grounding for the child's future education and Career selection/ preparation. This is in direct contrast to the child's mother and de facto partner where neither has completed secondary education. In this regard and consistent with s60CC 3(f) of the Act, the father has a demonstrated capacity to provide for the child's intellectual needs.
• The father is a (occupation omitted) and as such has a high, reliable and regular income stream unlike the mother and her de facto partner where their employment history remains characterised by short-term, casual, unskilled, itinerant (omitted) jobs. In this regard and consistent with s60CC 3(f) of the Act, the father has a demonstrated capacity to provide for the child's physical, sporting & educational needs.
• The father and his wife both come from stable, reliable, supportive, ever-present parents and stable families where both the father's and his wife's upbringing were characterised by an emotionally, psychologically and mentally stable environment. Additionally, there continues to be zero substance abuse or addictions. In this regard and consistent with s60CC3(f) of the Act, the father has a demonstrated capacity to provide for the child's emotional and psychological needs.
• This is contrast [sic] to the concerns raised by psychologist Ms S in her 24 Mar 2016 report where states that “Ms Charring has been unable to separate her own feelings from X's needs. This does not bode well for X's future need to separate from his mother and to develop into an independent person with parental support”) (paragraph 89). 3 years earlier, psychologist [Dr] Ms K in her 3 Sep 2013 report stated “Mrs Bunt's emotions have impacted on her ability to consider X's developmental and attachment needs” (paragraph 75) and “I do have some concerns about Mrs Bunt's capacity to meet his [X's] emotional needs over the long term” (paragraph 178m).
• Further, a change of residency for the child such that he lives with the father has been consistently proposed by experts over the past three years: psychologist Ms K in her 3 Sep 2013 report (paragraphs179b and 179h) and psychologist Ms S in her 24 Mar 2016 report (paragraph 109). These have been in direct response to the mother's sustained roadblocks to the child maintaining a meaning[ful] relationship with the father.
• While the father acknowledges the practicality restraints discussed in s65DAA 5(a) of the Act, the father's demonstrated commitment (over more than 4 years since proceedings began in Feb 2012) to the child's well-being and his relationship with the significant others in the child's life demonstrates that an arrangement where the child lives with the father would least likely lead to the institution of further proceedings in relation to the child.
• Accordingly, the father's capacity to implement and comply with any orders His Honour sees fit to make is very clearly demonstrated.
The Mother filed her Written Submissions with the Court on 19 May 2016, which are set out in full as follows:
INTRODUCTION
1. I Ms Charring am the Mother of X (child), born (omitted) 2010. I am the ex-wife of Mr Bunt. We met in 2001, married in 2008 and divorced in 2012.
2. I am currently studying (course omitted) at TAFE NSW.
3. X lives with his Mother in (omitted) since 2014 to be closer to family for support.
4. X's Father has lived in Canberra since 2007, now with his wife, (omitted) (Mrs Bunt). They married in (omitted) 2015.
5. I have re-partnered since (omitted) 2015 and he resides in (omitted), NSW. He has two children, a son aged 11 years and a daughter aged 22.
6. Orders (dated 7th May 2015) state that X has overnight visits with his father for the last weekend of each month from Friday afternoon to Sunday afternoon. Current interim orders (dated 28th April) stated the X has overnight visits with his father every second weekend from Friday afternoon to Sunday afternoon commencing on 30th April 2016.
FACTS PART A: DETAILED COMMENTS
7. Ms H (dated 8th March 2013), Ms K (dated 3rd September 2013), Mr P (dated 16th February 2015) and Ms S (dated 24th March 2016) have completed reports, which have all stated that the ‘child’ X live with his Mother.
8. Mr Bunt’s statements about the Mother in three reports.
8.1 Ms K's Report: ‘Mr Bunt expressed that he considers his ex-wife takes good Care of their son and he has no desire to disrupt her relationship with or Care of X’. (Paragraph 178, page 45). ‘Mr Bunt speaks positively of his ex-wife’s parenting skills’. (Page 46).
8.2 Mr P's Report: ‘Mr Bunt gave no indication that he wanted to disrupt X’s primary attachment to his mother and made it clear he simply want to be a significant and ongoing part of X’s life’. (Paragraph 33)
8.3 Ms S's Report: ‘Mr Bunt conceded that he did not think a change of residency was the best option or that it was fair on X’. (Paragraph 29, page 15) ‘Mr Bunt told me he did not have any Care concerns about X with his mother’. (Paragraph 33, page 16)
FACTS PART B: DETAILED COMMENTS
9. Mr Bunt has claimed in Ms S’s report: ‘Mr Bunt said Ms Charring’s claims were that he had physically assaulted her, and attempted to strangle her, both in the past and during contact’. (Paragraph 22, page 13).
9.1 I, myself have never made claims of ‘strangulation’, either in the past or during contact’ and this claim has never been documented in previous reports or communicated verbally to the court.
10. Mr Bunt has commented in Mr P and Ms S’s reports stating ‘no contact occurred after separation’:
10.1 Mr P's Report; ‘After Ms Bunt moved into her own accommodation with X in November 2012, Mr Bunt had no contact with his son for three months’ (Paragraph 1)
10.2 Supervised visits conducted by myself were documented and as per the Consent Orders made at the DVO interim hearing on 18th October 2012, by Ms C. (Copy of Consent Orders filed with Affidavit on 10th April 2015) I continued further visits until I organised Marymead in (omitted) to supervise. I registered my interest in the Contact Program on 15/3/2013 and the fortnightly visits at Marymead started in May 2013.
11. Ms S's Report; ‘The first year after the separation, Mr Bunt said that he had no contact with his son at all and that he had supervised time for a year in Canberra’. (Paragraph 18, page 11).
11.1 As above - (10.2)
12. Ms S's Report; ‘In the absence of information, Mr Bunt said he had begun to question what X’s home life was like’. (Paragraph 33, page 17).
13. Ms S's Report; ‘In my response to my query, Mr Bunt said he had attended a co-parenting course for six weeks but had not found it particularly helpful’. (Paragraph 41, page 19)
ISSUES
14. The current issues are Mr Bunt’s initiating application for Change of Residency to have X removed from his Mother’s Care into his fulltime Care and to facilitate fortnightly visits for the next 12 months.
15. Ms S's Report; ‘If his (X) current arrangements were to change, given his primary attachment is to his mother and she has been the key caring figure in his life to date, X would be very unsettled by any prolonged separation from his mother – most probably act out behaviourally’. (Paragraph 90, page 37-38).
16. Ms S's Report; ‘Mr Bunt recognises the importance of X having a relationship with his mother although his suggestion of merely reversing the current arrangement displays little understanding of X’s current attachment to his mother’. (Paragraph 92, page 38)
17. Ms S's Report states ‘That for the next 12 months, X remains in his mother’s Care and that he remains with her in the long term if she desists from any other notifications and/or sexual abuse allegations in the next 12 months’. (Paragraph 106, page 44).
18. ‘That Ms Charring undergoes counselling with a counsellor skilled in child development’.
18.1 I am, as I have stated on 28th April, willing to attend such counselling as directed from the court. I have previously and currently attending such ‘child development’ information courses. These have been; ‘School and Home Life For Boys: Engagement and Emotions’ – Psychologist Ms O, 6th April 2016. Currently ‘Bringing up Great Kids’ – Counsellor Ms J. (6 week course).
PRIMARY RESIDENCE
19. I, as X's Mother feel that I meet all of the parenting core elements;
16.1 Care – I feel that I meet all of X’s needs for physical, emotional and social wellbeing and protecting him from illness, harm, accident or abuse and provide a stable home environment.
16.2 Control – I set and put into effect appropriate guidance and boundaries to manage X’s behaviour.
16.3 Development – I have realised X’s intellectual potential and will encourage this always.
16.4 Knowledge – I know how to and have meet all of X’s Care. needs and his developmental potential and I know how to interpret his cues.
16.5 Motivation – I am motivated to protect, nurture and sacrifice my own personal needs for X’s ever-increasing awareness of the world around him. Also to give X every opportunity to develop his own sense of awareness of what is right and wrong.
20. I have the capacity to recognise and provide appropriate levels of supervision in relation to X’s development and his needs and to provide routinsed [sic: “routines”] and consistent physical Care. I also have the capacity to be emotionally available and sensitive and am currently undertaking a course with a counsellor to have insight into the emotional reasons for a child’s behaviour, which will take me beyond physical Care. This will provide a level of affect and interest in the parent-child interaction.
21. My parental warmth, sensitivity and acceptance of X’s basic needs are the core features that I feel are my parenting values. Also perceptiveness, responsiveness and flexibility are my key elements of my competent parenting style.
22. I am X’s parental figure that he sees every day and I have his best interests at heart. All the decisions I make for him are in his best interest. I have managed to raise a bright and lovely boy with limited assistance from Mr Bunt. I have close and significant support from my family and partner. It is in my submission that it would not be in X’s best interest for Change of Residency as stated by Ms S.
VISITATION ARRANGEMENTS
23. I have always [sic] supported X in having a relationship with his father. I have outlined in my Minutes of Orders Sought of the visitation arrangements that I feel are in the best interest of X, given the recommendations of Ms S, distance of travel and X now attending school.
24. Ms S's Report; ‘Mr Bunt said he would have been happy with one or two weekends a month and said he was only motivated by his wish to assure that he had time with his son and could add value to his life’. (Paragraph 31, page 16)
The Independent Children’s Lawyer filed her Written Submissions with the Court on 21st June 2016. These are set out in full as follows:
1. There is no evidence that the father poses an unacceptable risk to X. Further the mother's own evidence in the witness box was that she no longer considered that X was at risk of sexual abuse from his father.
2. The real risks to X are that he may be deprived of having a meaningful relationship with his father if he continues to reside with his mother, and that, if the mother is not genuine in her acceptance that X is not at risk from his father, X may develop a belief that his father has abused him, or that he is at risk of (in the report writer's words at paragraph 99) assuming his mother's perception of his father as a violent paedophile.
3. The mother's compliance with the May 2015 consent orders requiring her to provide X to spend time with his father regularly each fourth weekend has been poor. She partly explained this by alleging he was ill and that she had medical certificates .The father does not accept her explanation.
4. She has also continued to make allegations that the father may pose a risk to X to welfare agencies, notwithstanding her evidence that she herself does not consider X to be at risk from his father. Further, in this regard, the family consultant, at paragraph 89 of her report, expressed her concern that “[the mother's] persistence in viewing [the father] as a very damaging figure in their son's life will increasingly impede her ability to allow her son to develop into a well-balanced male confident in his own gender", and she criticised the mother as “a bitter, hostile, dysfunctional woman, [with] no understanding of the importance of Mr Bunt in having a role in their son's life and indeed given her perception of him, continues to actively seek to exclude him" . (paragraph 92 of the report).
5. The report writer's opinion was not challenged during the trial.
6. In the opinion of the report writer (paragraph 101) the mother formed the belief that X· had been sexually abused because of her “misunderstanding of normal child masturbatory behaviours,” as opposed to making maliciously false accusations. The mother's position at the trial was that she would comply with orders requiring that she undergo counselling as recommended by Ms S.
7. It is submitted that strong self-executing orders are necessary to ensure the mother's compliance in the event she ceases to make allegations which result in notifications to welfare agencies which prove to be without foundation.
8. The end of litigation in the Federal Circuit Court may also assist.
9. It is submitted that strong self-executing orders are also needed to ensure her continuing compliance with the orders to provide X for contact with his father, and in this regard (and with respect to the father's acceptance in the event X is genuinely too ill) it is submitted that X would benefit if his father could also contact any doctor who is consulted as to whether X is well enough to attend contact;
10. The requirement in proposed order 18 of three breaches before the order self-executes is arbitrary (another number may be preferable);
11. At paragraph 29 of the family report, the father is reported to have conceded to the writer that “he did not think a change of residency was the best option or that it was fair on X” and at paragraph 33 of her report, the report writer sets out that “In response to [her] query, other than her behaviour towards him and the allegation[s] she was making about him, Mr Bunt told me he did not have any Care concerns about X with his mother. He described his son as a bouncy, very happy little boy.”
12. Apart from her attitude towards X's father and the problems, for X, arising from it, the mother's parenting of X is not criticised either by the father or the family consultant.
13. Although the family consultant also reported in positive terms about X's relationship with his father, and acknowledged that a change of residence would allow X to have a positive relationship with his father (paragraph 99 of the report), she was concerned about the effect of an abrupt change of residence on X. She reported that X's ability to adjust to his father and to his father's new partner as primary figures was very uncertain.
14. Neither parties' partner filed an affidavit or gave evidence at the trial, with the result that evidence about the capacity of the new partner of each of the parents to Care for X is not satisfactory. But it is clear that Mr Bunt's current partner is still almost a stranger to X.
15. The advantage to the recommendation by the family consultant that there be a period of 12 months, during which X has regular contact with his father (assuming compliance) before there is a change of residence gives X the opportunity to build his relationship with his father and Mrs Bunt.
16. The father's evidence was that he continues to have difficulty in obtaining information about X from his school make it clear that the father is entitled to this information whether or not the mother has given her permission.
Consideration
Stated briefly, and subject to what is said later in these reasons, (a) I accept the evidence and recommendations of the Family Consultant, Ms S; (b) I also accept and generally adopt the submissions of the ICL. Having done so, I need only address the statutory considerations in Part VII of the Act quite summarily, noting that no one engaged with the litigation has done so. Further, I refer only to those “considerations” that are directly relevant to the issues before the Court.
In short compass, following sequentially the considerations in s.60CC(3) of the Act, I note the following, with each comment relevantly constituting a formal finding by the Court.
Having regard to the age of the child there are no relevant “views” to consider. His various comments recorded in the material of the parties and in the family reports do not really aid the Court. Such comment as there is really only confirms the difficult co-parenting relationship and the negative impact that it has, and continues to have, on their son.
The child has a good relationship with each parent. However, as Ms S noted, the child’s relationship with the Father is, in her view, still developing. There was no relevant evidence filed on behalf of each of the parties’ partners (and Ms S did not speak or otherwise have any contact with them); accordingly, it is not possible to make any formal finding in relation to X’s relationship with those partners.
It is certainly the case that the Father and the Mother both contend that the child has a good relationship with each of them and with each parent’s partner. Likewise, each parent contends that X has “issues” with the other party’s partner in some shape of form. That said, given the reasonably undisputed range of the contest and that X is said to be very “robust” in his speech, it might also reasonably be the case that (to some degree at least) X is voicing, in his own way, concerns about the ongoing parenting contest, and equally saying things that each parent may wish to hear. Such is not past the ingenuity of young children.
In any event, all reports – from the Mother, the Father and from Ms S – are that the child is a bright and happy young boy, who is meeting appropriate developmental milestones, and as such, despite some criticisms of the parents’ partners, the child’s relationship with these people cannot be said to be detrimental to X’s development.
It is a clear contention by the Father that the Mother has deliberately thwarted his involvement in and decisions concerning X’s life, particularly in relation to his education. In general terms, it is difficult to argue against such a contention on the evidence. The Father has sought to involve himself in all such matters as he has been able to. It also seems that on many occasions, the Mother has failed to give the Father the opportunity to participate in major long-term decisions regarding X. Such an approach simply cannot continue in circumstances where the child deserves and needs to have both parents involved in his life.
In order to improve the co-parenting relationship, the Mother must demonstrate a disposition of good faith and include the Father in these important decisions in order to restore and nurture the currently very limited trust between the parties.
Likewise, the Father contends that the Mother has thwarted, to varying degrees, his ability to spend time with X. Again, on the evidence, it is difficult to cavil with this contention also. Like most things, in my view, such an adverse comment in relation to the Mother must be seen in the light of Ms S’s assessment that the Mother has not been/is not deliberately malicious towards the Father but more that she does not have the requisite information and or understanding of a number of things relating to child development, which otherwise would likely explain much of X’s curious behaviour, perhaps especially after his return to her after spending time with his Father. In turn, this would likely explain how and why the Mother has, for so long, taken such a jaundiced view of the Father and has accused him of being a risk to the child. She is formally and very deliberately on record that she no longer holds these adverse views of the Father.[24]
[24] The matters canvassed here and in earlier paragraphs relate in particular to the considerations in s.60CC(3)(c) and (ca).
Perhaps the most crucial aspects of the considerations, on the evidence, relate to s.60CC(3)(d) and (e). Here, Ms S’s evidence is critical, particularly the earlier provision.
It will be recalled that the primary reason for her not recommending a change in X’s residence was because of the likely unsettling effects on him. At the same time, she noted – indeed emphasised – that the Mother had well and truly used up her chances vis-à-vis the Father and X, and that should anything further untoward occur there should immediately be a change in the child’s residence in the Father’s favour.
In this regard the Court must balance the risk posed to the child, on the one hand, of the potential (initial) negative impact on the child if there were to be a change in residence, and on the other hand, the risk to the child of being deprived of a meaningful relationship with his Father. Both risks can be characterised as having a potentially negative emotional and psychological impact on the child. The Mother must accept (as the Court does) that the risk to the child of not having a meaningful relationship with his Father is a serious and significant one and her stubborn and negative attitude towards the Father must change, otherwise the Court will have no other choice than to change X’s residence to his Father. The Father has “guaranteed” that he will facilitate the child’s time with the Mother if X lives with him. At this stage, the Court has more confidence in the Father facilitating the child’s time with the Mother, than the Mother facilitating the child’s time with the Father. Although the Mother may consider these observations, Orders and conditions to be harsh or even punitive, they are not. They are intended to require, indeed to compel, the Mother to facilitate the child’s time with his Father.
Further, the Court hopes that the Mother appreciates the gravity of her previous actions, which have ultimately forced the Court’s hand, so to speak, to come to this very firm view.
As already mentioned, I accept the evidence and recommendations of Ms S.
Likewise, I have commented regularly, and the parties are painfully aware of the significant logistical issues that beset them and the child as they negotiate time with and travel arrangements between Canberra and (omitted), with changeovers usually at (omitted). By any route, the distance between those cities is a drive of approximately 3½ hours. Canberra to (omitted) is a drive of about 2½ hours (the Father’s drive distance/time), while (omitted) to (omitted) is between 1½ and 2 hours (the Mother’s drive). The risk of problems associated with such distances, and conveying a young child, is patent. The evidence supports a history of difficulty.
It should also be noted that the Father, in my view generously, did not oppose the Mother (now some years ago) from relocating from the south coast of New South Wales to (omitted).
In this regard, the Orders should and certainly will be made to require both parties to give each other, in the absence of any other agreement between them, or proper notice of reasons for any unscheduled delay, a period of “grace” of no less or more than 20 minutes either side of the scheduled pick up/changeover time.
The Father fairly says that there are no issues for him about the Mother’s general Care of the child. He does say that he and his Wife, because of their own qualifications and interests, contrasted with the Mother and her partner’s comparatively more limited education, can provide better educational opportunities (as can Canberra more so than (omitted) – he says) for X. The Mother is not so generous in her comments about the Father but does not generally criticise him about his Care of X – now obviously in the light of her long-held but recently rejected concerns about the child’s risk in spending time with his Father.
Very summarily, it should be observed that the Mother is her own worst enemy. At the same time, the Father is needlessly almost callously blunt, but certainly disparaging in his written submissions about the disparity in educational accomplishments and related matters between the parties.
In my view, these are the predominant considerations from s.60CC(3) that are relevant to the current matter. It follows that matters of family violence or other risk (s.60CC(3)(j) and (k) and s.60CC(2)(b) and (2A)) do not relevantly feature among the considerations on the evidence.
Disposition
I share the general concern of Ms S if there was to be a change in residence and its likely deleterious impact on X. Not quite to the same degree, I also share her much less strident concerns about the Father’s parenting capacity. For these reasons, it is most appropriate that X remain residing primarily with his Mother, provided that she support, encourage and facilitate the child’s time with the Father. Although it is not his current Application, noting that it has been in the past, the Court hopes that the Father shares this view, as on all the evidence, this regime is in X’s best interests.
As stated much earlier in these reasons, where-ever the child lives and with whom, the major concerns of distance, communication and logistics will remain. There is no getting round these very impressive and daunting hurdles.
Equally, I am encouraged, however modestly, about the importance to the Mother and eventually to the child and the Father of the Mother’s need for education and counselling to assist her to understand rather better than she currently does matters that go to X’s development and behaviour.
In relation to “education”, in my view, it is imperative that the parents undertake a parenting course that focusses on communication skills. Even if they have already done such a course, they must do so again – for their own sakes and for the sake of the child.
Using the ICL’s Orders Sought as a template, the Orders the Court considers to be in X’s best interests are those set out at the commencement of these reasons.
As earlier observed, no one referred to any part of the legislative scaffold in Part VII of the Act. I cannot refrain from doing so. This includes those provisions, such as s.61DA, which refer to parental responsibility. On the basis of the Mother’s evidence at trial and her attendance at counselling as prescribed by Ms S, an Order for equal shared parental responsibility should be made.
Such an Order triggers, formally, the Court to consider the terms of s.65DAA. However, having regard to the matters of geography and logistics to which reference has been regularly made it is not practicable, or otherwise apposite, for an Order for equal time, nor for the same reasons is it reasonably practicable for an Order for substantial and significant time to be made. Neither such Order is in X’s best interests.
Two other matters should be dealt with in order to finalise all outstanding issues. These are: (a) whether the child should have a passport, and if so, should the child be able to travel overseas; and (b) whether the child should have the Mother’s more recently acquired name – Charring – somewhere in his name.
In relation to a passport and the child being able to travel overseas with his Father, in my view (i) there is no risk to the child (as surmised by the Mother in her evidence) in such a course, and (ii) more relevantly, such travel, upon the usual provision of an itinerary by the Father to the Mother (and vice versa) at least six weeks prior to the proposed travel, will be in X’s best interests. Accordingly, and Order for a passport to issue to X will be made (and in default of the Mother signing such form, the Registrar of this Court shall be authorised to do so pursuant to s.106A of the Act); an Order will also be made for the child being permitted to travel overseas with either parent. And when not required, the passport shall be held by the Registry of the Court in Canberra.
In relation to the child’s name, in my view, primarily because X has been known as “Bunt” all his life, it is not appropriate for the name “Charring” to be added to his current surname. The Mother may add the name “Charring” as a “middle name” for X.
Finally: now with very strict Orders in place and with the litigation finalised, both parties need to leave the past in the past and focus on X, the future and improving their trust and co-parenting relationship. In this regard, it is apposite to recall the following comment by the Full Court. In Cullen, Strauss J (as part of a Full Bench otherwise comprising Watson SJ and Bell J) said (at Fam LR p.48):[25]
There are few greater evils in family law than recurring litigation about custody and access. It is detrimental to the child, particularly so if he is old enough to appreciate that his parents are in legal conflict. It saps the mental, emotional and financial resources of the parties. It taxes the resources of the court and of the community.
[25] Marriage of Cullen (1981) 8 Fam LR 35; (1981) FLC ¶91-113.
It is not an Order, but the parties should read these comments from Cullen at least every week – if not more frequently. To do so would be in X’s best interests. The fighting has to stop; X’s best interests have to prevail; this means that X must have a meaningful and positive relationship with both parents.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 21 December 2016
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