Bunt and Charring (No.2) - [2018] FCCA 1153

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUNT & CHARRING (No.2)

[2018] FCCA 1153

Catchwords:
FAMILY LAW – Contravention Application filed by Father as well as change in residence Application – very long history of ill-will and dysfunctional parenting between the parents – findings that the Mother had breached the parenting Orders on four occasions – very large geographical distance between the parties adds to the dysfunctionality – proposed change in residence subject to the Mother returning to the Canberra region in which latter case the child would reside in a shared care equal time arrangement – further submissions required in relation to penalty following the Court’s findings regarding breaches.

Legislation:

Family Law Act 1975 (Cth), s.70NBA

Cases cited:

Childers v Leslie (2009) 39 Fam LR 379

Gaunt & Gaunt (1978) FLC 90-468

Irwin & Carr (2007) FLC 93-322
Sampson v Hartnett (No.10) (2007) 215 FLR 155; (2008) 38 Fam LR 315
U v U (2002) 211 CLR 238

Applicant:

MR BUNT

Respondent:

MS CHARRING

File Number:

CAC 180 of 2012

Judgment of:

Judge Neville

Hearing date:

29 August 2017

Date of Last Submission:

16 May 2018

Delivered at:

Canberra

Delivered on:

12 June 2018

REPRESENTATION

Solicitors for the Applicant:

Self-represented

Solicitors for the Respondent:

Self-represented

Solicitors for the Independent Children’s Lawyer:

Legal Aid ACT

THE COURT ORDERS THAT:

Count 1, which events occurred on 17^th – 19^th May 2017:
(A)The Mother admitted the Orders were contravened but with reasonable excuse.
(B)The Court finds: The Mother contravened the Orders without reasonable excuse.
Count 2, which events occurred on 31^st March – 2^nd April 2017:
(A)The Mother admitted the Orders were contravened but with reasonable excuse.
(B)The Court finds: The Mother contravened the Orders without reasonable excuse.
Count 3, which events occurred on 28^th – 30^th April 2017:
(A)The Mother admitted the Orders were contravened but with reasonable excuse.
(B)The Court finds: The Mother contravened the Orders without reasonable excuse.
Count 4, which events occurred on 12^th- 14^th May August 2017:
(A)The Mother admitted the Orders were contravened but with reasonable excuse.
(B)The Court finds: The contravention was not established it was agreed between the parties for the time to not occur.
Count 5, which events occurred on 23^rd – 25^th June 2017:
(A)The Mother denied the Orders were contravened.
(B)The Court finds: The Mother contravened the Orders without reasonable excuse.
In the absence of the Mother moving to the Canberra region within 21 days of the of Term 4, so as to enable the child to commence Term 1 in Canberra in 2019, the child [X] (born: 2010) shall live with the Father from the commencement of the 2018 Christmas school holidays.
In the event that the child lives with the Father, the child shall spend time with the Mother each alternate weekend (with pick-up and drop off times and changeover to be agreed between the parties and in the absence of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bunt and Charring (No.2)

Details

AGLC: Bunt and Charring (No.2) [2018] FCCA 1153
Case: [2018] FCCA 1153
Decision Date: 12 June 2018

CaseChat Overview and Summary

In *Bunt and Charring (No.2)*, the Federal Circuit Court considered allegations by the Father that the Mother had contravened parenting orders concerning their child, [X]. The dispute centred on whether the Mother had contravened the orders on multiple occasions without reasonable excuse, thereby triggering a review of the child's primary residence. The Independent Children's Lawyer (ICL) also filed submissions regarding the orders.

The Court was required to determine whether the Mother had contravened the parenting orders on five specific counts, and crucially, whether any such contraventions were without reasonable excuse. A key legal issue was the interpretation and application of Order 27, which stipulated that if the Mother failed to provide [X] for contact with his Father on more than two occasions within any six-month period without reasonable excuse, the Father would have liberty to relist the matter for a change of residency. The Court also had to consider the definition of "reasonable excuse" as provided within the orders and under section 70NAE of the *Family Law Act 1975* (Cth).

Judge Neville found that the Mother had contravened the parenting orders without reasonable excuse on Counts 1, 2, 3, and 5. The Court determined that the Mother's asserted reasons, such as birthday parties or rescheduling, did not constitute a reasonable excuse under the relevant provisions of the *Family Law Act* or the specific terms of the orders. For Count 4, the Court found that the contravention was not established, as it was agreed between the parties that the contact would not occur. The Court then made orders regarding the child's future residence and time with each parent, contingent on the Mother's relocation to the Canberra region. The parties were also ordered to file written submissions regarding an appropriate penalty for the four found contraventions.

Orders

Orders of the court

Count 1, which events occurred on 17th – 19th May 2017:

(A) The Mother admitted the Orders were contravened but with reasonable excuse.

(B) The Court finds: The Mother contravened the Orders without reasonable excuse.

Count 2, which events occurred on 31st March – 2nd April 2017:

(A) The Mother admitted the Orders were contravened but with reasonable excuse.

(B) The Court finds: The Mother contravened the Orders without reasonable excuse.

Count 3, which events occurred on 28th – 30th April 2017:

(A) The Mother admitted the Orders were contravened but with reasonable excuse.

(B) The Court finds: The Mother contravened the Orders without reasonable excuse.

Count 4, which events occurred on 12th- 14th May August 2017:

(A) The Mother admitted the Orders were contravened but with reasonable excuse.

(B) The Court finds: The contravention was not established it was agreed between the parties for the time to not occur.

Count 5, which events occurred on 23rd – 25th June 2017:

(A) The Mother denied the Orders were contravened.

(B) The Court finds: The Mother contravened the Orders without reasonable excuse.

In the absence of the Mother moving to the Canberra region within 21 days of the of Term 4, so as to enable the child to commence Term 1 in Canberra in 2019, the child [X] (born: 2010) shall live with the Father from the commencement of the 2018 Christmas school holidays.

In the event that the child lives with the Father, the child shall spend time with the Mother each alternate weekend (with pick-up and drop off times and changeover to be agreed between the parties and in the absence of agreement, after each party has submitted her and his proposal, the independent children’s lawyer shall determine the pick-up and drop off times), with the Father to be responsible for travelling with the child to and from the changeover location.

If the Mother does move to the Canberra region by the date in Order 6, then the child shall live with the Mother and spend time with the Father on 5 nights per fortnight, in a configuration agreed between the parties in writing (or as otherwise determined, after submissions by the parties, by the independent children’s lawyer).

The parties are to file Written Submissions of no more than 2 pages within 21 days of the date of these Orders, being by 3 July 2018, regarding what the appropriate penalty should be in relation to the four breaches of Orders as found by the Court.

THE COURT NOTES THAT:

(A) All Written Submissions are to comply with rule 2.01 of the Federal Circuit Court Rules 2001, and are to be in size 12 font, double spaced, single sided, paginated, with regular margins and regularly numbered paragraphs;

(B) All Written Submissions are to clearly identify the party on whose behalf the Submissions are being filed;

(C) It is requested that an editable Word version of the Written Submissions be provided to Chambers by way of email upon these Submissions being formally filed with the Court and prior to the next Court event.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The ICL filed an Outline of Written Submissions, together with her Minute of Orders Sought, on 28th August 2017. These submissions were as follows:1) Final parenting orders were made in the Federal Circuit Court about [X] on the 21st of December 2016. [X] who is now aged 7 years has always lived with and been cared for his mother. By those orders [X] continues to live with his mother and spends time with his father each second weekend during school terms, for half of each term school holiday, and, starting from 2017, half of the long summer holidays.2) However, in the face of a significant history of non compliance by the mother with orders requiring her to provide [X] to spend time with his father, under the heading “Conditions for the child to Remain residing with the mother”, the Court set out conditions for [X]’s continued residence with the mother.3) One of them was order 27 of the 21 December 2016 orders. This order provides that“In the event 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 a change in 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.”4) Order 12 provides 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 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.”5) On 24 May 2017 the father filed an application in a case seeking an order for a change in residency and alleging the mother was in breach of order 27 (and other orders).6) The purpose of the hearing on the 29th of August 2017 is to determine whether order 27 has been triggered because the mother has failed without reasonable excuse to provide [X] for contact on more than 2 occasions within a six month period. If so, the father has liberty to re-list matter for the purposes of hearing his application for a change of residency.The evidence7) The father alleges the first breach occurred when the mother failed to provide [X] for contact on Friday the 17th of March 2017 (paragraphs 14 to 24 and annex C of his May 2017 affidavit). The mother appears to concede that she did not provide [X] for this contact (paragraph 12 of the Mothers July 2017 affidavit). She asserts a birthday party [X] had been invited to attend on that weekend as a reasonable excuse.8) The father alleges the second breach within a 6 month period occurred when the mother failed to provide [X] for next contact, which in accordance with order 4 of the orders made December 2017 should have occurred on the weekend from Friday the 31st of March to Sunday the 2nd of April (paragraphs 14, 18-24 of the father's May 2017 affidavit). The mother appears to concede this contact did not occur also (paragraphs 12, 13 and 14). She asserts the contacts were not cancelled but rescheduled, by her.9) The father’s evidence is that he did not agree to the rescheduling.10) The father does not complain that [X] was not provided for school holiday contact. The relevant dates for the NSW School holidays were from Saturday 8 April 2017 until 25 April 2017.11) The father alleges a third breach within a 6 month period when the mother failed to provide [X] for contact on Friday the 28th of April 2017 (paragraphs 24 to 27 and annexure D of his May 2017 affidavit). This date would have been a scheduled contact if the orders are interpreted to have its literal meaning of contact every second weekend, the contact which would otherwise have fallen the fortnight previously to have not occurred only because of the suspension of order 4 provided in order 5. The mother again appears to concede that she did not provide [X] for contact. Again she asserts that the contact was rescheduled (paragraph 12 of the mother’s July affidavit)12) The father alleges a fourth breach within a 6 months period when the mother failed to provide [X] for contact on Friday the 12th of May 2017. However the father concedes his agreement to reschedule that weekend contact to accommodate Mother’s Day which fell on the 14th of May 2017.The law13) Order 27 includes a definition of reasonable excuse not met by the mother. FLA Section 70NAE(2) and (5) in particular apply.By s70NAE(2), a person (the respondent) is taken to have had a reasonable excuse for contravening an order affecting children if:(a) The respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and(b) The court is satisfied that the respondent ought to be excused in respect of the contravention.OR70NAE (5) believed on reasonable grounds that not allowing the child and the father to spend time together was necessary to protect the health or safety of a person and the period was not longer than was necessary to provide the protection.14) The standard of proof is the balance of probabilities.15) The mother has not made out a reasonable excuse within either section 70 NAE (2) or (5).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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