Bunt and Charring (No.2)
[2018] FCCA 1153
•12 June 2018
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 |
| 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 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.
IT IS NOTED that publication of this judgment under the pseudonym Bunt & Charring (No.2) 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
This is another parenting matter that falls into the alarmingly common category where there is no “optimal” solution. Indeed, the only solution available to the Court is to choose between which of the very limited options pose the least detriment to the child. And whatever course the Court determines to be in the child’s “best interests”, this poor young child, although well loved, remains caught in an interminable, inescapable bitter contest between his parents.
This alarming saga concerns parenting arrangements for young [X]. He has been caught between his warring parents since 2012 (when [X] was approximately 2 years old – he was born in 2010) when his Father began a relationship with a woman from overseas, who he has since married and with whom he has a child. The saga continued when his Mother moved to the Region C of New South Wales, and then, with the Father’s consent, to Town A where she has since remarried and had another child.
Typically, and like many other parenting matters, the following dynamic plays out on a very regular basis.
The parents obviously know each other well. I might mention here that because the parties have been embroiled in litigation, on and off, since 2012, the Court is also very well acquainted with them, including the multiple family reports that have been prepared to aid everyone in the making of Orders over the years, which have been intended to be in [X]’s best interests.
In addition to the grief (requited or not) from the breakdown of the relationship, both of them, instinctively and deliberately, know what does, and what does not, “push the buttons” of the other party. The game continues on a regular basis with allegation and counter-allegation of non-compliance with Orders, and or reasons offered for either. And particularly in cases where there has been a relocation that involves, as it does here, a very significant distance (Canberra to Town A is a distance of some 215 kilometres or thereabouts and a travel time by car of approximately 3½ hours), this only compounds every problem, great and small.
In this dispute, like many others, very poor communication, and large distances (between Canberra and Town A), have engrained and imperilled an already long dysfunctional co-parenting relationship. Even if the Court were to change the primary residence of [X], the same features will necessarily (and inevitably) apply to the detriment of all.
Significantly, I should also add that the Court has given the Mother multiple opportunities to ensure that [X] spends regular time with his Father. This has not occurred. Indeed, had the Mother complied with Orders it is very likely that the more dramatic Orders to be made in consequence of these reasons would have been unnecessary. Not by way of excuse but simply observation: the Father is very precise (he is an (occupation omitted) who works for the (employer omitted)), while the Mother is rather more “relaxed” in relation to matters of time and the like. This combination of factors does not assist in what passes for the co-parenting relationship. Moreover, as is noted in the last of three family reports (Exhibit A – Report of Ms S, dated 24th March 2016: par.89), Ms S observed, among other things, that: “Ms Charring has been totally unable to resolve the rejection she felt by Mr Bunt prior [to] their separation and been unable to separate her own feelings from [X]’s needs.”
Further and more immediately relevant, over a significant period of time and certainly since she moved to Town A, Mother has most unfortunately consistently demonstrated her complete inability to promote [X]’s relationship with his Father. She denies all of this, of course, but viewed objectively there is no other conclusion possible. The Mother’s interests and what she perceives to be [X]’s best interests in Town A always take precedence over those of the Father in Canberra. The geographical distance between the two cities has simply provided a convenient excuse, directly and indirectly, which has regularly been used by the Mother to thwart the child’s time with the Father.
However, as already remarked, while-ever the immense hurdle of geography remains, and whatever the Court’s decision at any time, poor [X] is destined to remain something of a parental football, or more aptly, a treasure that one parent or the other seeks to keep for himself or herself and/or to make it more taxing for the other parent to enjoy. The parents deny such suggestions of course, but these are the obvious realities of the lives of these parents and [X]. And it only compounds the problems for the parents, and the Court, that [X] has siblings in both his Mother’s and his Father’s households.
Formally and procedurally, there are two Applications before the Court. Although set out in detail shortly, it is sufficient to note here the Applications: a contravention Application filed by the Father, as well as an Application in a Case, also filed by him, by which he seeks a change in the residence of [X]. It is in relation to the second Application that the Orders sought by each party (and the Independent Children’s Lawyer, “the ICL”) are set out below. I should also note that the Mother filed separate but clearly overlapping affidavits, both filed 11th September 2011. The primary focus for current purposes, and not only because it is the more detailed of the two, is what I will call her “primary affidavit”, which addresses the contraventions alleged by the Father. Needless to say, the Mother opposes any change in the residence of [X].
It is not inapposite to record here the comments of Warnick J, who was sitting as the Full Court, in Childers v Leslie.[1] His Honour’s comments more than aptly sum up the problems with Applications of the kind currently before the Court. At [1] – [2], Warnick J said (emphasis added):
[1] This appeal involves features typical of a great many applications that assert contravention of an order that a child spend time with a parent: the complaint, even if correct, seems a heavy handed, even obsessive reaction – yet, if the incident is the latest in a series (about which there will commonly be mainly subjective comment, irrelevant to the particular proceeding) perhaps any exasperation of the complainant is at least understandable; secondly, the “excuse” offered by the respondent will seem “fair enough”, at least not to be behaviour that ought attract punishment; and finally, whatever the outcome, it will seem unlikely to contribute to any real diminution in the particular family’s conflict.
[2] However, these pervasive but nebulous features must be put aside, though the sense that one is presiding over an unproductive process might tempt a judicial officer to strive to achieve more from the hearing than it can properly yield. The focus must be narrowed, and, at first instance, the relevant facts determined and the law applied. In turn, the appellate court must scrutinise the process below, according to legal principle. As I said in Oxley and Inglis [2007] FamCA 1606, another appeal in respect of a contravention application, a successful appeal may merely exacerbate a disproportion between the extent of litigation and its utility.
[1] Childers v Leslie (2009) 39 Fam LR 379.
Minute of Orders Sought by the Father
The long self-represented Father filed his Application in a Case seeking a change in residence of the child on 24th May 2017. Although styled as an “Application in a Case”, is in substance, but obviously not in proper form, a Contravention Application. His somewhat unusual and legally inapt (in part) Orders sought (which are also, at times, rather more like submissions) were as follows:
1) Consistent with the principle established in Rice v Asplund (1979) FCL 90-725, the Mother's sustained failure to comply with every aspect of the extant Final Orders constitutes a change of circumstances.
2) Given the mother sustained actions contrary to the Orders 7 and 8 (phone contact between the child and his Father) and Order 27 (cancellation of four contacts between the child and his Father), I request the court to order a change of residency and new parenting orders to drawn up.
3) An exemption for a certificate from a family dispute resolution practitioner is claimed on the basis of:
· this being provided back in 2012 at the initiation of parenting orders application was applied for.
· the impetus for the current initiating application is the Mother failure to comply with the extant Final Orders dated 21 Dec 2016.
4) As the ability of the Child and Father to have quality time together free of interference from the Mother has not been allowed to occur, the Father requests that the Court dismiss the extant Final orders dated 21 Dec 2016 and replace them with the following Orders:
· the parents have equal shared parental responsibility for the Child.
· the Child live with the Father.
5) the Mother have contact with the Child as follows:
6) From 5pm Friday until 3pm Sunday on last weekend of each month
7) During school term holidays, 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.
8) Alternate Christmas Day I Boxing day, commencing December 2018
9) Both parents be permitted to travel with the child outside the Commonwealth of Australia, upon the provision of an itinerary by the travelling parent to the non-travelling parent at least six week prior to the proposed travel.
10) That the provision of the itinerary (being notification of bookings and payments) be a notification and not an opportunity for the other party to decide whether the child will be made available for the travel.
11) That the mother is strictly forbidden in taking any course of action or injunction that attempts to prevent the travel of the child outside the Commonwealth of Australia by way of submitting a child alert risk request with the Department of Foreign Affairs and Trade and / or making an application that the child's name be placed on the Family Law Watch List via an application with the Australian Federal Police.
12) 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 any health professional.
Minute of Order Sought by the Mother
The self-represented Mother filed a Minute of Order Sought with the Court on 17th August 2017; the Orders sought were 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 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 spend time with the Father as follows
7) That in 2017 contact shall be as follows:
(a) From 4:45pm on Friday until 3:00pm on Sunday on the second weekend of the month, with the changeovers to occur at McDonalds Town B or unless otherwise agreed.
(b) The parties are to comply as strictly as possible with the changeover times specified in these Orders.
School Holidays
8) Unless otherwise agreed between the parties in writing, Order 7 shall be suspended during school term holidays, and instead the Child 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 10:00am on the Saturday falling in the middle of the term school holidays with his Father.
(b) The weekend visit shall be suspended when the school holiday week is on in that month. If the school holidays fall within a scheduled weekend visit, that will be included as a weekend visit.
(c) Commencing in the long summer school holidays in 2017/2018, the Child shall spend two weeks with his Father in the second half (starting January 2018) of each long summer school holiday with his Father, in each year ending in an odd number and two weeks with his Father in the first half (December 2018) of each long summer holiday with his Father, in each year ending in an even number or zero, and for the purpose the change over times shall be 10:00am Saturday at the commencement and 10:00am Saturday, at the conclusion of the contact periods and to occur at McDonalds Town B unless otherwise agreed.
9) During holiday periods and weekend visits when the Child is with the Father, 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.
10) The Child will be provided with his own phone during visits to Canberra and is not to be removed from the Child's ownership during the visits.
11) That communication between the parties is to be by text or email. 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.
12) The Child is to be provided with his own bed in his own room with adequate bedding for the Child to be comfortable and is not to share a bed with any adult or other child under any circumstances.
13) The Child is not to be verbally, physically, psychologically coerced or abused by either parent or parent’s partner.
14) The Child is to go to bed at a reasonable hour each night, preferably by 8pm. If the Child so wishes to go to bed before this time, then the Father and step Mother is not to prohibit the Child from doing so.
15) 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.
16) 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. This order shall not be construed as requiring the school to provide any information to the Father.
17) That each party is to advise the other· of any significant medical condition involving the Child whilst he is in his or her care of any appointment either makes for the Child to attend on any health professional.
18) That neither party is to take the Child to any counsellor, psychologist, social worker, play-therapist or· psychiatrist without such prior notice as will give the other opportunity to discuss any proposed counselling with the proposed counsellor.
19) 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.
20) That neither parent is to denigrate the other or the other's current partner to the Child or in the presence or within the hearing of the Child or permit any other person to do so.
21) That if either party proposes to take the Child on a holiday 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.
22) The Child's passport shall be stored at the Town A Registry when the Child is not travelling. The passport must be returned to the Town A Registry within 7 days upon the return to the Commonwealth of Australia.
23) The Court to impose conditions in regards to the overseas travel of the Child. The Court to Order the travelling parent to provide a bond before being allowed to travel overseas with the Child. The bond will be returned to the travelling parent once the Child is returned to the Commonwealth of Australia.
24) The Child to be placed on the Family Law Watch List to ensure the safe return of the Child to the Commonwealth of Australia when travelling overseas.
25) The Bunt-Charring court file to be transferred to the Town A Registry.
Minute of Order Sought by Independent Children’s Lawyer
The ICL filed a Minute of Orders Sought on 28th August 2017. Those Orders were as follows (I note that, for ease of reference, I have inserted numbering which unfortunately was omitted. It is curious, to say the least, that the only lawyer in the proceeding is the only person who has failed to set out submissions in accordance with standard practice with numbering):
1) If the Court finds that the mother has breached order 4 of the orders made the 21st of December 2016 (requiring her to provide [X] for contact) within a six month period such that order 27 is triggered, or otherwise finds that the “rule” in Rice and Asplund does not apply; then order that (sic);
a) That a trial date be set for the hearing of the father's application for a change in residency;
b) That Ms S be re-appointed as court expert and the parties do all things necessary including attend appointments and to take [X] to appointments with her for the purposes of preparing an updated report;
c) That the court appointed expert shall include in her report an assessment and advice on ways in which any negative impact on [X] of a change of residence may be minimised.
d) That the mother be restrained from providing [X] with a phone or other device during the times when he is with his father;
2) If the Court finds that the mother has not breached order 4 of the orders made the 21st of December 2016 and accordingly order 27 has not been triggered and that the rule in Rice and Asplund applies then
a) That the father's application for change of residency be dismissed and
b) That the mother be restrained from providing [X] with a phone or other device during the times when he is with his father
The Contravention Application: Evidence
Quite significantly summarised, the Mother’s evidence (with the Father’s brief evidence/comments interspersed) was as follows (obviously by reference to the “contraventions” set out in the Father’s Application in a Case and supporting affidavit, filed 24th May 2017). I should note at the outset that the Mother’s evidence, especially her affidavit evidence, was not always consistent and often confusing. For example she regularly referred to a calendar she had at home on which she recorded various pieces of information including, she said, when [X]’s visits with his Father took place. Unfortunately, the calendar (sections of which were annexed to the Mother’s Affidavits) did not contain as detailed or as reliable evidence as the Mother claimed.
There were 5 “contraventions” alleged by the Father set out in his affidavit (and summarised at p.4 of it); the dates of them are set out below. In general terms, each contravention alleged that the Mother had not complied with the Orders, dated 21st December 2016, by not making the child available to spend time with the Father.
For completeness and ease of reference, and because of the Mother being on notice of the conditions that might give rise to a change in the residence of the child, it is important to set out the particular Orders made on 21st December 2016, not least because they included a self-executing Order (or the risk of it) for the child’s residence to change to live with his Father. This was so notwithstanding the concerns expressed by the Family Report writer, Ms S. The relevant Orders (26 & 27) from 21st December 2016 were as follows:
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.
First contravention: 17th – 19th May 2017:
a)The Mother admitted the contravention alleged but with reasonable excuse;
b)The Mother said her reasonable excuse was that [X] had a birthday party to attend;
c)Text messages annexed to the Father’s affidavit, filed on 15th May 2017, show that the Mother refused to give the Father any information about this birthday party;
d)Ms Charring said in oral evidence that she tried to explain what time the party was on and when it was ending, and that she could not return in time for the party;
e)Mr Bunt said that he was unable to communicate with the Mother to move the time so that he could pick [X] up later (or earlier as the case may be). Indeed, the Father offered to have [X] earlier and return him in time for the party. This was rejected by the Mother who said that [X] would be too tired to attend his party;
f)The Mother did not make any other comments in her affidavit, filed 11th September 2017, or otherwise. She simply extracted the text messages. The Mother plainly considered that the child attending a birthday party is a reasonable excuse;
g)The Mother said that the Father asking for information about the party was “unjustifiable” (Affidavit filed, 11th September 2017, par.15);
h)The Mother’s calendar indicated that this visit was rescheduled to 24th – 26th March; but the Father already advised the Mother that he would be at work that weekend and therefore unable to look after [X].
Second Contravention: 31st March – 2nd April 2017
a)The Mother denied this contravention;
b)Text messages sent by the Mother on 9th March 2017, annexed to the Father’s affidavit filed on 15th May 2017, confirmed that this visit had to be cancelled if the child was to be taken to the (activity omitted);
c)The activity omitted) dates were from 28th April – 30th April 2017;
d)The Mother contended that [X] spent this weekend (31st March - 2nd April) with his Father; as noted earlier, she keeps a calendar which (she said) recorded the times that [X] spent with his Father. It is annexed to the Mother’s affidavit, filed 11th September 2017. In my view, while helpful, sometimes it lack relevant detail and did not overly assist the Mother’s case or responses. For example, the Mother’s calendar does not say anything about the child being in the ACT on the dates in question. Further, at paragraph 13 of Mother’s primary affidavit, the Mother said that there was a period of 5 weeks from 17th March until the April school holidays where there were no visits by [X] with the Father. It was not immediately clear how this related specifically to the contravention in question;
e)The Mother then sought to clarify her evidence. She said that her earlier evidence regarding this contravention and her contention that [X] did spend time with his Father on this occasion was an accident. Rather, she said that she meant to refer to 30th April (which is recorded on the Mother’s calendar) instead of 30th March for the (activity omitted) (par. 22 Mother’s Affidavit filed 11th September 2017). She also said that she was mistakenly referring to the weekend of 30th March when [X] did spend time with his Father, as opposed to 30th April when he did not because of the Town A show. As such there was no reasonable excuse available to the Mother.
Third Contravention: 28th – 30th April 2017:
a)Mother admitted this contravention but with reasonable excuse;
b)She said that text messages show that she advised the Father that she was cancelling his time so that she and her family could take [X] to the (activity omitted). The Father said that the Mother’s proposed solution, in effect, to provide alternative time for [X] to spend with his Father, was not suitable to him because he was working on the proposed re-scheduled dates;
c)The Mother’s calendar indicated that this visit was rescheduled (par. 12 of Mother’s Affidavit, filed 11th September 2017). However, the Mother’s evidence was somewhat unclear regarding the dates proposed for the re-scheduling with the Father. The main reason for the opaqueness was because the [alleged] proposed new dates coincided with the Mother’s Day weekend, which for 2017 fell on the weekend of 12th – 14th May. In my view, it is immensely unlikely that the Mother would have re-scheduled make-up time for the Father on the Mother’s Day weekend.
d)At par.16 of her September 2017 affidavit, the Mother said that the re-scheduled time for this contact was agreed to be 5th -7th May 2017. If this be correct, it is likely that the Mother intended (which she did not confirm) that the Mother’s Day weekend was to be “makeup time”, for the two weekends of 28-30 April and 12-14 May. To state what seems obvious: there was very significant lack of clarity in the Mother’s evidence and equally poor arrangements made for the child to spend time with the Father. As earlier observed: arrangements in Town A invariably took precedence over the child’s time with his Father.
Fourth Contravention: 12th - 14th May 2017:
a)The Mother admitted this contravention but with “reasonable excuse”;
b)There is a “text message”, dated 30th March, which seems to confirm arrangements for 12th – 14th May were ultimately cancelled because [X] was to spend Mothers’ Day with his Mother;
c)The Father seems not to dispute that this “Mother’s Day” arrangement was mutually agreed. The Mother said that the Father had makeup time the previous week, on 5-7 May 2017. This was reflected/recorded in the Mother’s calendar;
d)As something of an aside, the Mother seemed to think that there is a “special days” heading in the 21st December 2016 orders; such Orders are not there. This will have to be amended.
Fifth Contravention: 23rd – 25th June 2017:
a)Mother denied that this time did not occur. Curiously or not, there is nothing recorded on the Mother’s “contact calendar” to support her contention that [X] spent time with the Father on these dates;
b)A text message sent on 22nd June 2017 shows on its face that the Mother cancelled this visit for no reason (annexed to Father’s 15th August 2017 affidavit);
Submissions by the Father
The Father has never formally filed any submissions in these proceedings, despite Orders to this effect being made on 10th July 2017 and 29th August 2017. In more recent affidavits, he has outlined why he had not done so. Indeed, he has chosen to file, almost monthly, affidavits which (helpfully or not, presumably intended or not) to update the Court on what the Father says are the Mother’s repeated contraventions of the Orders for [X] to spend time with him. In substance, the Father’s “submissions” are what he says is the constant failure by the Mother to comply with Orders, and in consequence, his regular inability to spend time with [X]. He said that (a) the Mother consistently simply does not make [X] available to spend time with him and/or (b) makes unilateral changes to “arrangements” and/or (c) advises him of some impediment to the child spending time with the Father when he is on his way to changeover at Town B (which is no small distance from Canberra – approximately 190 kilometres and a drive of about 2 hours) by which time it is too late for anything, including any alternative arrangements to be made.
Submissions by the Mother
The Mother filed an Outline of Submissions on 17th August 2017. They were as follows:
INTRODUCTION
1) I Ms Charring am the Mother of [X] (child), born 2010.
SUMMARY OF THE FACTS
2) Mr Bunt claiming his only acknowledgement of Ms Charring’s pregnancy was only detailed in the recent response to his affidavit filed on the 24th May 2017.
3) Mr Bunt’s increasing aggression towards Ms Charring during changeovers at Town B.
4) Mr Bunt and Mrs Bunt’s use of physical force and aggressive and abusive (yelling) behaviour towards [X].
5) Mr Bunt’s need to dictate when [X] is allowed to communicate with Ms Charring on the child’s own phone during contact visits in Canberra.
6) Mr Bunt’s comments towards [X] about the alleged physical altercation between Mr G and Mr Bunt at Town B in May 2016.
FACTS: DETAILED COMMENTS
7) Mr Bunt claimed his only acknowledgement of the Mother’s pregnancy was detailed in her response to his affidavit filed on the 24th May 2017. With Mr Bunt’s comment to the court on the 10th of July 2017, ‘yes I just read about it’. [X] communicated my pregnancy to Mr Bunt during the April 2017 school holiday visit. To which [X] stated that Mr Bunt ‘became angry and walked away.’
8) Mr Bunt stated on the 10th July 2017 that [X] is in year 2. In fact he is only in year 1 this year. (Annexure ‘A’)
9) Mr Bunt’s sexualised jokes towards [X] to which he repeats them to me. I.e. ‘Ms M, has a very hairy crack’. [X] stated ‘Mr Bunt is talking about her hairy bum crack’. Also an inappropriate ‘knock, knock’ joke, which ends in ‘bend over’ and stating to [X] that a song that he was listening to was ‘about sex’. I have never heard [X] say the word ‘sex’ before.
10) I am fearful of my safety because of Mr Bunt’s increased aggression towards me during changeovers at Town B. Given what I went through with Mr Bunt’s past behaviour and issues during my pregnancy with [X] and after his birth and now his recent comments on 10th July about my current pregnancy.
11) Mr Bunt’s use of force to make [X] hug and kiss Mrs Bunt against his will and use of physical hold to force [X] to sleep in his bed, which he shares with Mrs Bunt, to which Mr and Mrs Bunt ignores [X]’s distress during the contact visits in Canberra. This shows Mr and Mrs Bunt lack of knowledge of a child’s Body Autonomy; ‘Teach children about body autonomy and empower them to say “No” when they aren't comfortable sharing physical space with another person and is defined as the right to self governance over one's own body without external influence or coercion’.
12) Mr Bunt’s refusal to engage in the 6-12 sessions of psychological intervention, as recommended in Dr K’s report in September 2013 (Paragraph 179, page 47), ‘designed to assist him in cementing an understanding of safe parenting practices, especially in relation to boundaries and sexual/aggression management’ with Dr C. (Annexure ‘B’)
13) Mr Bunt has a history of violence and use of psychological coercion in the abuse of his cousin and exposure of his penis to children in a park in Sydney. Dr K’s report in September 2012 (Paragraph 162, page 39 and Paragraph 170 page 42)
14) Mr Bunt’s need to confiscate the child’s phone to communicate with his Mother during contact visits in Canberra. Then making a false statement that he ‘encourages’ [X] to call Ms Charring and when [X] does speak on his phone, Mr Bunt will not allowing him to speak in private.
15) Mr Bunt’s continuation in making false statements that he calls every Wednesday to speak to [X] and claiming that Ms Charring doesn’t answer. Mr Bunt hasn’t provided any evidence to show that he calls my number. He called on 19th July 2017 at 6:55pm and I said “hello” and Mr Bunt hung up. (Annexure ‘C’)
16) Mr Bunt’s repeated comments towards [X] to convince him about the alleged physical altercation between Mr G and Mr Bunt at Town B in May 2016. Which led to the child asking Mr G and Ms Charring if Mr G ‘hit’ Mr Bunt at Town B. To which [X] and Ms Charring did not witness or hear and Mr Bunt communicated this to the Town B Police Officer. Then Mr Bunt changed his statement in his Submission that the incident happened “in full view of the child”.
17) Mr Bunt clearly has an issue with me moving on and re-partnering. Given that he stated during the signing of the divorce papers “I’ll give you three months and you will come crawling back to me”. Also stating “I will not allow anyone else to ‘father’ [X]”. Mr Bunt still refers to me as Ms Charring ‘Bunt’.
18) Mr Bunt frequently states to [X] “Ms T is your step mother”. [X] will reply “Mr J is my step dad”. Which infuriates Mr Bunt and he reacts by shouting at [X] “no he isn’t!”
19) Mr Bunt’s lack of supplying [X] with general necessities for warmth during winter, with the temperature dropping down to -8 in Canberra. Such as extra blankets, electric blanket or heater to keep [X] warm. Instead Mr Bunt forces [X] to share a bed with him and Mrs Bunt as he states to [X] “you are too young for an electric blanket”.
20) Mr Bunt’s refusals to listen or respond to [X]’s sleep requirements/needs when he is tired and wants to go to bed. Instead, forcing [X] to stay up late till 10-11pm each night by not allowing [X] to enter his bedroom by blocking the door way or removing [X] from his bed by grabbing his arm and ‘dragging’ him downstairs to watch movies. To which [X] will state ‘I have already seen this movie’. Also taking [X] to the cinema to see (omitted) at 9:30pm and stating to [X] that was the only time the movie was screening and it wasn’t on during the day.
21) Mr Bunt’s claims that Ms Charring wouldn’t be able to cope ‘emotionally’ with a new baby and [X] at the same time. I suffered from postnatal depression over seven years ago. Mr Bunt also claimed that he was suffering from postnatal depression. This was triggered through a lack of support from Mr Bunt and his refusal to be of any assistance with housework, caring for [X] and not allowing me to rest after [X] was born during his two weeks of paid Paternity Leave. Since my separation from Mr Bunt, I have not lapsed into any kind of depressive state. In fact I have never felt more healthier or positive to be a mother again. I no longer feel isolated, trapped, controlled or dictated to like I did during and after the birth of [X] like when I was with Mr Bunt.
22) Ms K's Report; ‘According to the FSNA, Mrs Bunt is a reasonably stable and skilled parent. She has particularly strong parenting skills in a concrete, as well a being able to provide [X] with stability and care without evidence of destabilisers in terms of mental health or substance abuse’. (Paragraph 176, page 43).
ISSUES
23) Mr Bunt’s claims of four cancelled contact visits.
24) Mr Bunt and Mrs Bunt’s use of physical force, aggressive and abusive behaviour (yelling) towards the child has led to [X] hiding under his teacher’s desk and not wanting to attend visits.
25) The long term psychological affects of Mr and Mrs Bunt’s abuse towards [X] and the affects of his attachment style and behaviour that he will develop and the ‘cause and affect’ of his relationships towards others when he is an adult.
26) [X] stating that Mr Bunt fails to appropriately place his seat belt on as per the instruction manual. Instead of the lap-sash shoulder belt going across [X]’s chest, Mr Bunt has the shoulder belt placed either under [X]’s arm or under the armrest of the booster seat. (Annexure ‘D’)
27) 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).
28) 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)
29) Mr Bunt’s erratic and unpredictable behaviour towards [X] is as stated in Ms K's Report; ‘Although it is likely that Mr Bunt’s functioning continues to be affected by residual symptoms of Attention Deficit Hyperactivity Disorder’. (Paragraph 149, page 33)
PRIMARY RESIDENCE
30) 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 very smart, bright and lovely boy with very limited assistance from Mr Bunt. I have close and significant support from my family and partner.
31) [X] has formed very strong bonds and attachments with his relatives in Town A and Mr G.
32) [X] is very excited about the birth of his sibling that he has wanted for the past two years.
33) Mr Bunt’s comments that [X] will cope not having any fulltime contact with his new sibling shows his great lack of what is in the best interest of [X].
34) According to research, separation of siblings deprives younger siblings the care and comfort of the older sibling.
35) The separation of siblings hinders the development of a strong sibling relationship which significantly requires both physical and emotion access between siblings.
36) The sibling relationship is noted as one of significant importance and benefit in a child’s life.
37) Separating siblings may result in their bond diminishing.
38) The fracture of the family unit should not extend to the children.
Submissions made by the Independent Children’s Lawyer
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 evidence
7) 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 law
13) 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.
OR
70NAE (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).
Consideration & Disposition
In the following comments and formal rulings in relation to each contravention, I have had specific regard to the following Full Court authorities: Gaunt & Gaunt and Childers & Leslie.[2] In the former (Gaunt), the Full Court made it clear that a parent’s “subjective” view of what was/is in the child’s best interest did not, of itself, constitute a sufficient base or foundation to establish a “reasonable excuse.”
[2] Gaunt & Gaunt (1978) FLC 90-468; Childers v Leslie (2009) 39 Fam LR 379.
In Childers v Leslie, Warnick J cautioned against applying too loose a test for “reasonableness” under the Act. He said (at [28]):
[28] … the learned Magistrate may well have fallen into error by applying too loose a test of “reasonableness”. The question is not simply whether, viewed from some ill-defined concept of fairness or reasonableness, the mother’s actions were excusable. The position with regard to the terms “reasonable grounds” and “reasonable excuse” in s.70NAE is, I think, similar to that of terms of like generality, for example, “any just cause” used elsewhere in the Act. As Lindemayer J said of the term “any just cause” in In the Marriage of Lutzke (1979) 5 Fam LR 553 at 559:
... However, the Act is silent as to what may constitute “just cause” for the discharge of an order. In my opinion, however, the words “just cause” are not used in any broad general sense, nor are they intended to import any abstract notions of justice, “Palm tree” or otherwise, into the determination of applications for discharge. In my opinion those words must be interpreted in the context of the Act as a whole and in particular with regard to the other specific provisions of the Act which relate to maintenance. Thus a “cause” for the discharge of an existing maintenance order will be a “just cause” only if, having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said that it is “right” or “proper” that the order should be discharged.
Then, at [29] – [34], his Honour stated (emphasis added):
[29] … the context in which “reasonable excuse” applied tellingly included the subsections of s.70NAE. It also included that the father was entitled to spend time with the child pursuant to a court order. Such an order places serious obligations on persons in the position of the mother in this case.
[30] Section 65N in relevant part provides that:
(2) A person must not:
(a) hinder or prevent a person and the child from spending time together in accordance with the order; or
(b) interfere with a person and a child benefiting from spending time with each other under the order.
[31] The objects of Part VII of the Act set out in s.60B include:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;
...
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
[32] The principles underlying the objects are set out in s.60B(2) and include:
(a) that children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together;
[33] These objects and principles offer considerable support for the proposition that a parent who is entitled to spend time with a child ought be able to do so in various conditions and circumstances, including care for a child when the child is unwell, unless of course an exception such as that with which s.70NAE(5) deals, applies.
[34] The relevant context also includes authoritive statements of the court about like cases, of which the following statements In the Marriage of Gaunt (1978) FLC 90-468 are a good example (at 77,398):
The essential question is this - can a party who does not agree with a court’s decision about access defy the order and then plead that in preventing access his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child? The question of the child’s welfare is, of course, the paramount consideration for the court in determining the access question in the first place. To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the court’s order or from the consequences of non-compliance would undermine the purpose and intentions of the Act.
... A party’s subjective view of the rights and wrongs of a decision cannot be relied on as “just cause or excuse” or “reasonable cause”... .
Finally, at [43], his Honour said:
There is no fundamental reason why the proof of facts relevant to a contravention on a particular occasion may not in part depend of inferences about those facts drawn from findings about ex post facto events.
In the light of these cautions and relevant principle, I note the following.
Notwithstanding her formal pleas (Contraventions 1, 3 and 4 – admitted with reasonable excuse; Contraventions 2 and 5 denied), as noted by the ICL, the Mother effectively conceded each of the contraventions (except perhaps Count 5) but pleaded that each occasion, in some shape or form, had been re-scheduled.
For my part, I do not accept any of the excuses pleaded by the Mother, other than in relation to the Mother’s Day weekend, which seemed to be conceded by the Father.
For example, the birthday party does not, of itself, constitute “reasonable excuse.” While such things are genuinely important in the life of a child, they must reasonably take second place to the child spending time with the non-resident parent. This is especially the case where, as here, there is so much difficulty in the child spending time with the Father, not least because of the geographical distance(s) involved.
Nor in my view is it sufficient for the Mother, in almost all cases, unilaterally “re-scheduling” what amounted to make-up time for [X] to spend with his Father. And so often, that time did not proceed because it did not suit the Father’s work and other schedule.
The incident regarding the birthday party, and the unilateral re-scheduling by the Mother (and the persistent detail sought by the Father as set out in the large number of emails and SMS messages attached to the parties’ affidavits), all show, yet again, the utterly dysfunctional, totally fraught and relentlessly caustic co-parenting relationship between the parents.
In my view, regarding the birthday occasion, the Father quite reasonably offered to spend an earlier time with the child. The Mother rejected it, in her mind, not unreasonably.
As already indicated, I do not accept the Mother’s pleas of “reasonable excuse.” On the evidence before the Court they are not made out. Accordingly, as noted earlier, I find that counts 1-4 have been made out and that there is no “reasonable excuse.” Otherwise I accept the ICL’s submissions regarding the contraventions. In so finding that the contraventions as pleaded have been established, and without any reasonable excuse, it remains then to consider what is the appropriate penalty. I will hear the parties on this (e.g. costs, entering into a bond etc). This will occur again by way of written submissions of no more than 2 pages within 21 days of the date of these Orders.
As these instances or contravening examples (and the correspondence and history between them to which I have generally referred) demonstrate, these parties cannot and usually will not agree on anything (a) because of the completely fractured relationship history since 2012, (b) for the other matters noted at the commencement of these reasons, and (c) for the reasons set out in Ms S's Report in March 2016 (Exhibit A). It would seem that nothing has changed since then, or is likely to do so without quite drastic action being taken by the Court. Indeed, this is exactly the plight to which the parties, and the Mother in particular, have brought everyone, including the Court. This is despite repeated warnings by the Court over many years of the risks run if the Mother’s continued action (or inaction) led to [X] not spending regular time with his Father. Ms S warned of this as well in her March 2016 Report.
Indeed, the basic dilemma set out by Ms S in her 2016 report applies today (accepting that any Orders must be in the child’s best interests pursuant to s.60CA of the Family Law Act 1975 (“the Act”)). For example, at par.104 of her Report, Ms S said:
“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.”
Both of these crucial risks were outlined at some length in that Report, and noted in earlier proceedings. I need only note them, indeed stress them, but not otherwise record them here. In highlighting this central dilemma I recall also s.70NBA of the Act, which provides that a Court may vary an existing parenting Order whether or not a contravention of an existing Order has been established.
A Third Way?
In U v U, Hayne J confirmed the following procedural principles and matters generally in relation to determining Orders that are in the best interests of the child in circumstances where “relocation” is or has been considered. Formally, that is not the position here. I note his Honour’s comments for the procedural issues he raises. At [171] – [176], his Honour said (internal citations omitted):[3]
[171] What have come to be known as "relocation cases" present difficult questions. Much of that difficulty stems from the fact that to take a child from the place where one of the parents lives (and, in some cases, works) to some distant place will, if the other parent does not move, necessarily affect the way in which the child's relationship with that other parent can be maintained and allowed to develop. It follows that the needs and the wishes of each parent and the needs of the child (and, if of sufficient age, the child's wishes) all bear upon the question to be considered by the Family Court. In the end, as the Family Law Act 1975 (Cth) ("the Act ") makes plain, the Family Court "must regard the best interests of the child as the paramount consideration", but that does not deny the fact that there are at least three persons who will be affected by the order that is made: two adults and the child. And very often, of course, there will be other relatives of the child whose contact with the child will be curtailed if the child lives in one place rather than another.
[172] In these circumstances, it would be quite wrong to treat the decision that is to be made as confined to a choice between whatever may be the particular "proposals" that the parents may make for the residence of, and contact with, the child. So to confine the inquiry would, in this case, have required the Family Court to ignore admittedly relevant evidence that was led about what the mother would do if it were decided that the child should live in Australia rather than India. More fundamentally, it would confine the Court's inquiry to what the parents suggested would be in the best interests of the child, regardless of whether those suggestions were informed, even wholly dictated, by the selfish interests of one or other of the parents. To confine the inquiry in this way would, therefore, disobey the fundamental requirement of the Act that the Court regard the best interests of the child as paramount. Those interests may, or may not, coincide with what one or both of the parents put forward to the Family Court as appropriate arrangements for residence and contact.
[173] That is not to say that the Family Court is to embark upon some roving inquiry about the matter, unfettered by any regard for the evidence led and the matters which the parties seek to contest. Due account must be taken of the fact that proceedings in the Family Court are conducted in a framework of adversarial procedure familiar to the common law. (I do not stay to consider how or to what extent that adversarial model has been modified by the Act or rules of court made under it.)
[174] In this case, there were only three outcomes which were raised by the parties in the proposals which they made and in the way in which the matter was conducted at trial. Put shortly, and incompletely, those three outcomes were that the child would reside with the father in Australia, with the mother in India or with the mother in Australia. All of those outcomes assumed that the father would remain in Australia.
[175] There may have been some sufficient and compelling reason for the parties to make that assumption and to conduct the litigation on this premise. But neither the premise nor the reasons for adopting it were explored in evidence or in argument in the courts below and therefore these matters could not be tested or examined in this Court. The premise is not one which, in relocation cases, should be accepted as a matter of course.
[176] When one parent (for whatever reason) wishes a child who is, or is to be, resident with that parent to move to a place distant from the other parent, it should not be assumed that that other parent cannot, or should not, contemplate moving to be near the child. There may be (and for all that is known, in this case there was) compelling reason for that other parent (here, the father) not to move, but it would ordinarily be expected that these reasons would be explored in evidence and the validity of any assumption that the other parent will not move would be examined. Just as, in this case, the mother was asked what she would do, if she could not have the child reside with her in India, so too it might have been expected that the father would be asked what he would do, if the mother were to have the child reside with her in India. Such questions should not be treated as mere forensic tests of parental devotion, to which only one answer is seen as being satisfactory proof of being a loving parent. Rather, they are no more than a prelude to a deeper inquiry about where the best interests of the child may lie and what arrangements will best serve those interests.
[177] It is now recognised as self-evidently true that, apart from some cases of abusive relationships, children benefit from the development of good relationships with both their parents. The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of Pt VII of the Act. If effect is to be given to those principles, it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.
[3] U v U (2002) 211 CLR 238.
In recording these remarks of Hayne J in U v U, as earlier mentioned, I do so only for the purpose of the Court there indicating that in making a parenting decision a court is not formally bound by the proposals of the parties. Provided procedural fairness is given to all parties, the Court may consider and ultimately decide that a course is better for the child than either of those proposed by the parties.
In the light of the matters raised by Hayne J in U v U in addition to the Orders sought by each of the parties and the ICL set out earlier in these reasons, to ensure procedural fairness, the parties (and the ICL) were given the opportunity to comment on an alternative course that may be considered by the Court and which otherwise was not part of any of the proposals of the parties (or the ICL). That course was/is to give the Mother an opportunity to move closer to the Father’s residence (noting that she originally lived in Canberra when the parties were together) so as to lessen, as far as humanly possible, the ongoing risk(s) of perennial contraventions that will invariably arise due to the large geographical distance currently between the parties. If the Mother moved back to the Canberra region, I would propose that there be an equal time arrangement between the parties, not least because (a) [X] needs to spend much more regular time with his Father, and (b) it will minimise the opportunities for the parties to breach or even to contest any relevant “time with” arrangements between [X] and each of his parents. I do not suggest by the proposed new or “third way”, however, that it is a complete panacea of the travails and other entrenched issues in this matter.
If the Mother chose not to move residence, because of the long history of her non-compliance with Orders, [X]’s residence would be changed at the end of the year. Having regard to the very long history of extreme difficulty in the child spending time with the Father, and the Mother’s abject inability to put the child’s relationship with the Father ahead of any other interests, a change in residence, with all of the other risks to which I have referred and earlier noted by the Family Consultant, is in the child’s best interests.
The Court does not raise a possible “third way” or option for the purpose of forcing the Mother to return or move to the Canberra region, as indicated in cases like Sampson v Hartnett (No.10).[4] Rather it is to ensure that the parties (and the ICL) have an appropriate opportunity to consider and make such submissions as they wish on this possible option, which might give [X] some respite from some aspects of the conflict between his parents.
[4] Sampson v Hartnett (No.10) (2007) 215 FLR 155; (2008) 38 Fam LR 315.
In this regard, in many respects the Full Court decision in Irwin & Carr has many similar features to the present matter.[5] In that case, the decision at first instance (a) made findings that certain contraventions had been established, (b) ordered that the Mother enter into a bond, and (c) changed the residence of the child to that of the Father. His Honour also noted that if the Mother returned to the area where the Father and child lived, there would be Orders for regular time with the Mother. In the decision at first instance, his Honour said it was in the child’s best interests to have regular time with both parents. It was, he said, a matter for the Mother if she chose to remain resident at a distance further away from where the child and the Father lived. The Full Court did not disturb the decision of the primary Judge (as his Honour now is).
[5] Irwin & Carr (2007) FLC 93-322.
The parties’ submissions in relation to the further “option” proposal were as follows. I note however that unfortunately the Mother did not file any submissions until literally a day or so before the delivery of judgment. They have been included and the Court has considered them. Not only was the Mother notified by the Court of the opportunity and need to file submissions regarding this possible “third option”, but both the Father and the ICL confirmed that each of them notified the Mother of (a) the possible consideration of her returning to Canberra, (b) the matters that might flow if she did not, and (c) the request by the Court for further written submissions on this proposal.
The Father’s Supplementary Submissions
The Father’s submissions (which were put in the form of an affidavit, filed 14th May 2018) on the Mother returning to Canberra and the parties sharing equally in the parenting of [X] were as follows. It will be readily apparent that, in general terms, he is very enthusiastic about the “third way” option for the reasons he outlines:
1) I, Mr Bunt, (occupation omitted), make oath and say:
2) I am the Father of [X] (the ‘child’).
3) My date of birth is 1968 and I reside in Canberra, ACT.
Utility or appropriateness of Mother’s move back to Canberra and implementation of a shared care arrangement
4) The Mother’s relocation back to Canberra would be a welcome development. The resulting city co-location of the Mother and Father would be of significant benefit to the child as it would balance the time the child has with his Father.
5) The immediate benefit would be the removal of the existing travel impost on the child and the commensurate improvement in the quality of the child’s contact with the Father in that 30% of current contacts comprise travel. Time could then be given to more meaningful relationship-building activities.
6) The child would directly benefit from the Father’s proximity as the Father would now be in a position to attend events / occasions of significance to the child such as school functions, sporting events, parties, etc. The Child would also avoid missing out on events his Father attends. In a similar fashion, the child will be potentially spared having to face an ‘either / or’ parental contact situation at special times of the year such as Christmas and birthdays.
7) The utility of the co-location of the Mother and Father would also exhibit itself through facilitating the application of shared parental regards the child’s care - in whatever form, need or circumstance that may arise.
8) A further benefit of the Father’s proximity is that given the Mother’s status as a single parent, the Father would be available to assist in the care of the child should the Mother become incapacitated through illness, etc.
9) The implementation of a shared care arrangement – preferably on a week on / week off Monday to Sunday evening basis – would greatly enhance the child’s stability and development. The child will have present and available parents, affording the child equal expression with both parents with the reciprocal benefit of access to both parents’ input, guidance and support as needed.
10) While acknowledging the utility and appropriateness of the Mother’s relocation back to Canberra, it should be noted that since the breakdown of the relationship between the Mother and Father in 2011, the Mother has demonstrated a fundamental and sustained opposition / objection to the child’s relationship with the Father.
11) The Mother does not share the Family Law Act’s or the court’s view that the Father has an equal shared parental responsibility for the child. Evidence of this has been the Mother recalcitrance in complying with each iteration of the parenting orders and the unending contraventions the court has reviewed.
12) It is this entrenched posture that is at the heart of the matter and it is difficult to accept that the Mother’s relocation back to Canberra will in any way bring about a change in the Mother’s disposition and behaviour.
13) Hitherto, the Mother has been highly successful in denying the Father all opportunities for input into decisions or information about matters affecting the Child. These have included but are not limited to: schooling, education and school reports, social challenges, discipline, medical matters (allergies, injuries, attendance at appointments, medical records), social activities and friendships / associations.
14) While the Mother’s relocation would greatly facilitate the child’s time and relationship with his Father, it is unclear how it would address these broader areas of the child’s development given the Mother’s disinterest in and failure to recognise the value to the child of the Father’s input into the child’s life.
15) The only viable solution is that, in addition to the Mother relocating to Canberra, the child lives with the Father. Only in this situation could the Father ensure that a truly ‘shared parental responsibility’ model is implemented and operated in a practical, purposeful and workable manner. The Father will ensure that both parents are active and facilitative in decisions that deliver outcomes that are in the best interests of the child.
16) Family counselling, professional reports, court explanations and warnings, tightened parenting orders, etc. have all been exercised in an attempt to engender the mother’s adherence to responsible (joint) parenting and compliance with the spirit of the parenting orders – but to no avail.
17) Should the court determine that the Mother relocate back to Canberra and given the Mother’s proven unwillingness to consult with or at the very least involve the Father in decisions affecting the Child, the Father requests that the court make a further determination that the Child be enrolled at School E in Canberra.
18) This recommendation is based on the values, principles and standard of behaviour the school encourages and empowers students to replicate; the high level of one-on-one ‘whole person’ care provided to students and the academic achievements demonstrated by the school’s students.
19) The Father is committed to funding 100% of school fees from ‘day 1’ and will continue to do so thereafter with an equitable sharing arrangement agreed with the Mother following her return to paid employment.
The Mother’s Supplementary Submissions
The Mother’s submissions, which were submitted via email on 8th June 2016, after multiple attempts both by Chambers and the ICL to contact the Mother, to no avail, were as follows:
INTRODUCTION
1) I Ms Charring am the Mother of [X] (child), born 2010.
SUMMARY OF THE FACTS
2) Mr Bunt has continued with his abuse via text message.
3) Mr Bunt has once again attempted to coerce me to give out my details of my current address.
4) Mr Bunt and Mrs Bunt’s use of physical force and aggressive and abusive (yelling) behaviour towards [X] is still continuing.
5) Mr Bunt’s lack of communication and aggressive and intimidating messages to secure visits with [X] outside of and on the scheduled visits.
6) Mr Bunt’s continued questioning to [X] about my current personal circumstances with the father of my daughter, Mr G.
FACTS: DETAILED COMMENTS
7) Mr Bunt on the 20th April 2018 suggested to pick up [X] out the front of my home (as my daughter would be asleep at the time of the exchange) by text “I can meet u (you) outside your house staying in my car and [X] can jump in” I replied “No!! I will not be meeting you outside my new house”. I feel that the need for Mr Bunt to know my new address is very terrifying and I’m fearful of being stalked.
8) Mr Bunt’s continued abuse and name calling of me during and after the birth of my daughter has brought up depressing and emotional memories of when I was pregnant with [X]. Mr Bunt abused me before my daughter was born by chanting to [X] “Ms Charring is a fucking fat woman”. Then via text message to the Mother with name-calling, with comments such as “Spastic”, “Selfish”, “You r (are) a self-centred useless COW!!!!” [X] and I was subjected to this abuse (and worse) on a daily basis from Mr Bunt before our separation in 2012.
9) Mr Bunt has repeatedly questioned [X] about my relationship with the father of my daughter, Mr G. Mr Bunt has commented via text message on 1st February 2018 “And….I thought your relationship with Mr J was over?” I did not respond. I feel that my relationship with Mr G doesn’t have to be public knowledge and Mr Bunt likes a private life with his current wife, and I to with the father of my daughter.
10) Mr Bunt’s increase in abuse started when he was under the impression there would be no ramifications from Mr G as he thought I was no longer in a relationship with him and I feel this gave Mr Bunt leverage and the audacity to abuse me via text.
11) I am fearful of my safety because of Mr Bunt’s increased aggression towards me during changeovers and via text messages. As Mr Bunt has stated via text message “I have held back my anger… but no longer” and “U (you) haven’t seen anything yet”. Given what I went through with Mr Bunt’s past behaviour and issues during my pregnancy with [X] which caused me to develop Post Natal depression and his further attempts to discover my current address. Moving to Canberra would allow Mr Bunt to stalk me and cause stress and depression and I would be living in fear everyday of my safety of my children and myself. And I am happy to state that I am not suffering from Post Natal Depression with my daughter.
12) I have found Mr Bunt to repeatedly lie to me to secure visits with [X] outside of scheduled visits. This is done by communicating to me that he has purchased tickets to events that were ‘free’ admission. Mr Bunt stated via text message “I booked tickets for the (activity omitted) at the (omitted) ((omitted)) for Dec 10. I can provide copies of those tickets” I received a copy of the (activity omitted) pamphlet in the mail. I sent Mr Bunt the section of the (activity omitted) that the event was free and it was only on 2nd and 3rd of March. Not the dates that [X] was visiting. Mr Bunt responded “What’s your point?” I replied “I don’t appreciate being lied to when it comes to [X]!”
13) During the April 2018 School Holiday’s, [X] asked Mr Bunt twice for his phone. Mr Bunt stated “No”. [X] asked Mr Bunt if he could call Ms Charring (Mother). Mr Bunt replied to [X] “Now’s not a good time”. [X] stated to Ms Charring that he cried on the Thursday and Mr and Mrs Bunt ignored him and didn’t approach [X] to question why he was crying or to comfort him.
14) Mr Bunt’s statement “the Mother’s relocation back to Canberra will in any way bring about change in the Mother’s disposition and behaviour”. Mr Bunt was always controlling of me when were together. Mr Bunt even attempted with 4 DVO’s as stated in one of his Affidavits some where along the lines of “to see a change in behaviour”.
15) Mr Bunt stated his displeasure of [X] spending Mother’s Day with me this year with a text message “U (you) r (are) so self-centred that you just can’t c (see) my generosity in accommodating Mother’s Day”. This is because Mother’s Day fell on a scheduled visit and Mr Bunt wasn’t available on the following scheduled weekend. Though Mr Bunt travelled overseas in January with Mrs Bunt and wasn’t available for a scheduled visit, though didn’t request a make up visit. Mr Bunt stated “I will be overseas in February (Feb 8-24) such that a single weekend contact will be missed: Feb 16-18” Mr Bunt becomes aggressive and abusive if the visits aren’t what he dictates.
ISSUES
16) Mr Bunt’s statement for the Mother to relocate back to Canberra would cause significant financial hardship. The Mother is currently paying $280 per week for a three bedroom unit. The rental market in Canberra would be too substantial for the Mother to afford a decent sized home to house two children and remove [X] from his immediate family members and cause great emotional and physiological distress for everyone concerned.
17) Mr Bunt hasn’t taken onto consideration [X]’s sister and her father and the affect it will have on her not seeing her father everyday.
18) Mr Bunt hasn’t taken into account the impact on [X]’s relationships/friendships that he has developed with my extended family and that of his school and church friends if he were to relocate back to Canberra.
19) Mr Bunt’s indication that “A further benefit of the Father’s proximity is that given the Mother’s status as a single parent” is incorrect. I am in a happy, loving and caring relationship with the father of my daughter, Mr G. Who has provided both [X], his daughter and myself significant support in all areas of parenting and emotional stability. Mr G provides on a daily basis loving and caring support that is free from judgement, cruel and callous comments and all forms of abuse.
20) Mr Bunt’s statement “The implementation of a shared care arrangement –preferably on a week on/week off Monday to Sunday evening basis” would cause a dramatic decrease in Child Support paid by Mr Bunt (which Mr Bunt would fully be aware of) in the ever-increasing costs of financially supporting [X]. This would cause me to be in a grave financial hardship situation; possibly cause a great deal of stress and the possibility of me being homeless due to not being able to afford such significant rental prices in Canberra and the ever increasing cost of living.
21) I feel that this is an attempt from Mr Bunt to destroy my relationship with Mr G and to reduce the amount of Child Support payable by him to support [X]. Mr Bunt has stated numerous of times that he will “destroy me” and “No one else will ever be [X]’s father”.
22) Mr Bunt’s comment “denying the Father all opportunities for input into decisions or information about matters affecting the child”; school reports etc. This is incorrect and falsified. Mr Bunt can contact the school whenever he sees fit, to which he has. Mr Bunt receives copies of [X]’s school reports that are sent to him from the school. “Medical Records”. Mr Bunt sent Medical Centre a letter outlining untruthful statements and caused the doctor great fear of repercussions if she didn’t comply with his demands. I have already communicated to Mr Bunt that [X] has an allergy to Penicillin and no further allergies have been established at this time.
23) Mr Bunt has ignored [X] falling ill during a visit and failed to discuss his symptoms that were clear to see and removed himself from the change over in very quick fashion without any communication. [X] was extremely ill for a whole week with him missing out on a week of school. To which Mr Bunt didn’t ask how he was when I communicated to him that [X] was sick.
24) Mr Bunt has communicated to me via text message that he was unable to afford the cost of petrol to pickup and drop off [X]. Mr Bunt’s yearly income is that of $120,000 as disclosed via correspondence from Child Support. This amount doesn’t include Mrs Bunt’s income.
25) Mr Bunt’s statement of “with the Mother following her return to paid employment”. Then I will have to share the private school fees for [X] to attend School E in Canberra. When I return to the workforce will be of my own accord. Not pushed or threatening by Mr Bunt as he once did for the 2 weeks after [X] was born, which was full of abuse from Mr Bunt demanding that I return to work when he did, as he stated “I don’t want to be the bread winner”.
26) [X] was placed on lunchtime detention earlier in the year due to copying Mr Bunt’s behaviour at the Pool, when Mr Bunt exposed his bottom to [X] in the Family Change Room. [X] exposed his bottom to a boy in the toilet. I showed Mr Bunt the detention letter from the school and that he copied his behaviour and Mr Bunt stated “More of your games and lies”. Then in another text stated “Have u (you) ever stopped to think that [X]’s disruptive behaviour is the result of poor little [X] trying to reconcile his love for me”. [X] was upset that he was put on detention and stated “Mr Bunt did it to me and didn’t get into trouble, but I did at school and I was put on detention”. Though Mr Bunt stated to me in a text message that he is a “positive influence” on [X].
PRIMARY RESIDENCE
27) Both Mr G and I are [X]’s parental figures that he sees every day and we have his best interests at heart. Always have and always will for both of our children. All the decisions I make for him are in his best interest. I have managed to raise a very smart, bright and lovely boy with very limited assistance from Mr Bunt. I have close and very distant family members that would travel at whim to help me and significant support from my family and extended family and partner and his family as well.
28) [X] has formed very strong bonds and attachments with his relatives in Town A, his new baby sister and Mr G and his family.
29) Mr Bunt’s lack of communication to ask me anything about [X]’s life, has caused himself great grief and unsettling behaviour. And to blame me for his outbursts due to lack of communication on his part is his own fault.
30) [X] receives great support at his current school and enjoys spending time with his friends and as he has stated, “they make me laugh even when I’m sad or I don’t want to laugh”.
31) Mr Bunt’s attempt to control my life and attempts to lower Child Support payable by him is utterly irresponsible to the point that [X] will suffer significantly. Also Mr Bunt’s attempt to destroy my relationship with Mr G with the help of the Family Court to remove his daughter away from him is very repulsive and just what Mr Bunt is hoping for.
32) With Mr Bunt’s past comments in the court room that he didn’t want me “living anywhere near him and his wife”, “I don’t want Ms Charring knowing my address as she will cause trouble” also stating that I was “too dependent” on him when we were together and now with Mr Bunt wanting me to relocate to Canberra with a history of stalking is very concerning for my safety and the safety of [X] and my daughter.
33) Separating my daughter from her father will ultimately result in court action on Mr G’s part, to which I don’t blame him. And to which Mr Bunt clearly doesn’t understand or care.
34) The fracture of the family unit should not extend to the children in the matter. Mr Bunt needs to realise that this matter now involves 2 children, one that is not Mr Bunt’s biological child and not just [X].
By way of comment only, whatever the Father’s intentions are, he has consistently only sought to have the Mother comply with Orders so that he can spend regular, consistent time with [X]. Equally so, it is not the Court’s intention to cause any rift or difficulty in either family unit. The Court’s sole focus is on the making of Orders that are in [X]’s best interests. No other consideration is relevant.
The ICL’s Supplementary Submissions
The ICL’s rather more sanguine submissions, filed 16th May 2018,were as follows (emphasis in original):
1) The potential benefit to [X] born 2010 aged 7 years of the mother moving back to Canberra and a shared care arrangement is that the change will be less precipitous than that following an order that [X] reside primarily with his father. The difficulties for [X] of a prolonged separation from his mother (see paras 90 to 92 of the March 2016 report) could be avoided.
2) However it is submitted that a continuing shared care arrangement may also come with significant risks to [X]’s best interests in the longer term. Ms S’s opinion in her March 2016 report was that [X]’s parents have been completely unable to establish a cooperative parenting arrangement since separating (paragraph 89 of the report). That is consistent with almost every aspect of the evidence, at almost every point of the ongoing litigation.
3) Ms S attributes that to the mother’s “total inability to see [the father] as having anything to contribute to her [then] only child and further to her desperate wish to protect [X] from a man she portrays as a violent paedophile” (my emphasis). Unless the mother has developed insight and can now see the benefits to [X] of a relationship with the father (and there is no evidence currently that she has) then it is difficult to see how a long term shared care arrangement can work in [X]’s long term best interests.
4) Any shared care arrangement seems likely to carry the risk of maximising [X]’s exposure to parental conflict, while minimising the risk of short term harm from prolonged separation from his mother.
5) If an order were to be made for shared care on an interim basis, that may provide an opportunity for [X] to adjust to change and allow for any further evidence including an updated report to be gathered, if the Court considers that would be useful.
6) That would carry the disadvantage of continuing the current round litigation. Alternately the order could be made on a final basis. Neither option seems likely to result in an end to litigation between the parties.
Formally, I accept and adopt the submissions of the ICL.
Subject to any other Order in relation to “penalty” regarding the findings on each of the contraventions, in my view, on an interim basis, I propose making Orders whereby, in the absence of the Mother moving to the Canberra region by the end of Term 4 in Canberra so as to enable him to commence school next year, and also to make a shared care/equal time arrangement (or something similar – more likely a 5/9 arrangement with the child to spend five nights per fortnight with the Father) possible (maybe even workable) with the Father, [X] shall live with the Father as from the commencement of the 2018 Christmas school holidays.
Otherwise, as indicated earlier in these reasons, the parties are to file written submission of no more than 2 pages regarding what is the appropriate penalty for the Mother in relation to the four breaches of Orders as found by the Court.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 12 June 2018
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