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…
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- Bunt and Charring [2016] FCCA 3011
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- [2016] FCCA 3011
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CaseChat Overview and Summary
The court was tasked with establishing orders for equal shared parental responsibility, specifying where X would reside, and detailing the Father's time with X, including during school terms and holidays. Further issues included regulating communication between the parents and between each parent and X, outlining changeover procedures, and addressing potential relocation of X's residence. The court also considered orders relating to X's schooling, medical care, and the issuance and holding of X's passport, as well as conditions that could lead to a change in X's primary residence.
In its determination, the court made orders for X to be known as X Bunt, with Charring as an additional middle name. X was to have equal shared parental responsibility, and subject to specific conditions, X was to reside with the Mother. Detailed provisions were made for X's time with the Father, including specific weekend and holiday arrangements, and for telephone and Skype communication. The court also imposed restrictions on the parents' relocation of X's residence, required written permission for certain medical and psychological treatments, and authorised X's school to provide information to the Father. Conditions were stipulated whereby the Father could apply for a change of residence if the Mother made unsubstantiated allegations to welfare agencies or failed to provide X for contact on more than two occasions within a six-month period without reasonable excuse. The court further ordered that the Father would hold X's passport and outlined procedures for international travel.
The court ordered that all extant applications were dismissed and the matter was finalised.
Orders
Orders of the court
PARENTAL RESPONSIBILITY & “LIVE WITH” ORDERS:
1.
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.
2.
The parents shall have equal shared parental responsibility for the child, X (born (omitted) 2010) (“X” or “the child”);
3.
Subject to Orders 26 and 27 hereof, X shall reside with his Mother.
X’s “TIME WITH” AND “COMMUNICATION WITH” HIS FATHER:
4.
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.
5.
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).
6.
X is to spend any additional time with his Father at any other time, as agreed between the parties in writing.
7.
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.
8.
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:
9.
Unless otherwise agreed between the parties in writing, all changeovers shall take place at McDonalds in (omitted).
10.
The parties are each to comply as strictly as possible with the changeover times specified in these Orders.
11.
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.
12.
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.
13.
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.
14.
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.
15.
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
16.
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).
17.
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.
18.
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.
19.
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.
20.
The Mother shall not change the school at which X is enrolled without the Father's written permission.
21.
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.
22.
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:
23.
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.
24.
The Mother shall provide evidence of completion of such counselling to the Court and to the Father within 7 days of completion.
25.
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:
26.
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.
27.
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:
28.
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.
29.
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.
30.
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).
31.
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.
32.
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.
33.
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.
34.
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.
35.
All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.
Background
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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