FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUNT & CHARRING (No.3) | [2019] FCCA 3452 |
| Catchwords: FAMILY LAW – Parenting – long history of conflicted parenting and protracted litigation – Father seeks change in residence – considerable distance between parents’ residences – real risk of deterioration of relationship between child and Father if child remains living with Mother – multiple warnings to Mother over a long period of time by family consultants and by the Court of the need for the Mother to change her disposition towards the Father and to promote the child’s relationship with the Father – significant risk to child remaining in Mother’s primary care – change in residence and sole parental responsibility ordered. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC(2)(a); 60CC(3)(a)-(m); 65DAA |
| Cases cited: AMS v AIF (1999) CLR 160 |
| Applicant: | MR BUNT |
| Respondent: | MS CHARRING |
| File Number: | CAC 180 of 2012 |
| Judgment of: | Judge Neville |
| Hearing date: | 7 June 2019 |
| Date of Last Submission: | 20 September 2019 |
| Delivered at: | Canberra |
| Delivered on: | 18 December 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented |
| Solicitors for the Respondent: | Self-represented |
| Solicitors for the Independent Children's Lawyer: | Legal Aid ACT |
ORDERS
All previous parenting Orders be discharged.
From the date of these Orders until 4:00pm on Boxing Day 2019:
The child, X (born: … 2010) (“the child”) is to live with the Mother.
The Father is to have telephone time or otherwise communicate with the child as agreed between the parties in writing, and failing agreement, a minimum of 3 times per week on Monday, Wednesday and Friday afternoons at 4:30pm, and at such other times as the child wishes.
For the purpose of Order 3, the Mother is to facilitate such communication, and ensure the child is available and able to speak to the Father in private.
From 4:00pm on Boxing Day 2019 onwards:
Subject to Order 6 of these Orders, the Father be granted sole parental responsibility for the child.
The Father is to consult the Mother regarding, and keep her properly informed of, all matters and decisions in relation to the major long-term issues (section 4 of the Family Law Act 1975) regarding the care of the child.
The child is to spend time with the Mother one weekend per month from after school or 3:00pm on the Friday until 3:00pm on the Sunday (or 3:00pm on the Monday if it is a public holiday). The child’s weekend with the Mother is to be agreed between the parties in writing, and failing agreement, such time is to occur on the second weekend of each month.
During ACT Terms 1, 2 and 3 gazetted short school holiday periods, Order 7 is to be suspended, and the…
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- AGLC
- Bunt and Charring (No.3) [2019] FCCA 3452
- Case
- [2019] FCCA 3452
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether there was a real risk of deterioration of the child's relationship with the Father if X remained living with the Mother. This involved assessing the impact of the Mother's disposition towards the Father and her efforts, or lack thereof, in promoting the child's relationship with him, particularly in light of multiple warnings from family consultants and the Court over an extended period. The court also had to consider the significant risk to the child remaining in the Mother's primary care.
In reaching its decision, the court relied heavily on the findings of a 2016 Family Report, which highlighted the Mother's inability to cooperate with the Father and her portrayal of him as a dangerous figure. The court found that the Mother's persistent negative perception of the Father impeded X's development into a well-balanced child and prevented her from separating her own feelings from X's needs. The court weighed the geographical distance, X's relationship with his sibling, his history of living with the Mother, and his time with the Father against the Mother's ongoing failure to facilitate, and at times, her active efforts to impede, X's time with his Father. Ultimately, the court concluded it had no confidence in the Mother promoting and facilitating X's time and relationship with his Father.
Consequently, the court ordered that all previous parenting orders be discharged. From Boxing Day 2019 onwards, the Father was granted sole parental responsibility for X, with specific provisions for the Mother to consult and be informed on major long-term issues. The child was ordered to live with the Father, with defined periods of time to be spent with the Mother, including one weekend per month and half of each school holiday period, with detailed arrangements for communication and changeovers.
Orders
Orders of the court
1.
All previous parenting Orders be discharged.
From the date of these Orders until 4:00pm on Boxing Day 2019:
2.
The child, X (born: … 2010) (“the child”) is to live with the Mother.
3.
The Father is to have telephone time or otherwise communicate with the child as agreed between the parties in writing, and failing agreement, a minimum of 3 times per week on Monday, Wednesday and Friday afternoons at 4:30pm, and at such other times as the child wishes.
4.
For the purpose of Order 3, the Mother is to facilitate such communication, and ensure the child is available and able to speak to the Father in private.
From 4:00pm on Boxing Day 2019 onwards:
5.
Subject to Order 6 of these Orders, the Father be granted sole parental responsibility for the child.
6.
The Father is to consult the Mother regarding, and keep her properly informed of, all matters and decisions in relation to the major long-term issues (section 4 of the Family Law Act 1975) regarding the care of the child.
7.
The child is to spend time with the Mother one weekend per month from after school or 3:00pm on the Friday until 3:00pm on the Sunday (or 3:00pm on the Monday if it is a public holiday). The child’s weekend with the Mother is to be agreed between the parties in writing, and failing agreement, such time is to occur on the second weekend of each month.
8.
During ACT Terms 1, 2 and 3 gazetted short school holiday periods, Order 7 is to be suspended, and the child is to spend time with the Mother for half of each of school holiday period as agreed between the parties in writing, and failing agreement, as follows:
(a) In 2020, from 3:00pm or after school on the Friday to 3:00pm on the Sunday in the middle of the school holiday period;
(b) In 2021, from 3:00pm on the Sunday in the middle of the school holiday period to 3:00pm on the Sunday immediately prior to the recommencement of school; and
(c) Alternating each year thereafter.
9.
During the ACT Term 4 gazetted long school holiday period, the child is to spend time with the Mother for half of each school holiday period as agreed between the parties in writing, and failing agreement, as follows:
(a) In 2020, from 3:00pm on the Sunday in the middle of the school holiday period until 3:00pm on the Sunday immediately prior to the recommencement of school;
(b) In 2021, from 3:00pm on the last day of school until 3:00pm on the Sunday in the middle of the school holiday period; and
(c) Alternating each year thereafter.
10.
For the purpose of the Mother’s time with the child, unless otherwise agreed between the parties in writing, the Mother is to collect the child from McDonalds Town A in Canberra at the start of her time with the child, and the Father is to collect the child from McDonalds Town B at the conclusion of the Mother’s time with the child.
11.
Both parties are to do all acts and things necessary to ensure they are on time for any changeover. However, if either parent becomes aware that they will be late to any changeover due to reasons outside of their control, they are to immediately notify the other parent by text with an estimated arrival time.
12.
All communication between the parties is to occur either via text message, email or other communication application, unless it is an urgent issue regarding the health or welfare of the child, in which case they are permitted to call the other party.
13.
The Mother is to have telephone time or otherwise communicate with the child as agreed between the parties, and failing agreement, a minimum of twice per week on Tuesday and Thursday afternoons at 4:30pm and at such other times as the child wishes.
14.
For the purpose of Order 13, the Father is to facilitate such communication, and ensure the child is available and able to speak to the Mother in private.
15.
Each party shall advise the other party in writing of any change of address, landline or mobile telephone number within 24 hours of such a change occurring.
16.
Each party is to advise the other of any significant medical or health-related condition involving the child whilst he is in his or her care, and of any appointments the child has to attend on any health professional.
17.
The Father is to provide the Mother with the name and contact details of each healthcare professional the child attends within 24 hours of the attendance. These Orders shall be an authority for such healthcare professionals to release any and all information and records concerning the child to the Mother.
18.
The Father is to provide the Mother with the name and contact details of each childcare centre, school or other educational institution the child attends. These Orders shall be an authority for such educational institutions to release any and all information and records concerning the child to the Mother.
19.
The Father is to advise the Mother and permit her to attend any school, co-curricular and/or extra-curricular activities to which parents are normally invited.
20.
Both parties are permitted to travel with the child outside of the Commonwealth of Australia, upon the provision by the travelling parent to the non-travelling parent of an itinerary and copies of return tickets no less than 21 days prior to such travel.
21.
Neither party, their agents nor their servants shall discuss these proceedings with the child, in front of the child or within the child’s hearing.
22.
Neither party, their agents nor their servants shall denigrate the other party, the other party’s partner or family to the child, in front of the child or within the child’s hearing.
THE COURT FURTHER ORDERS THAT:
23.
Within 21 days, being by 8 January 2020, the Father is to notify the Court via email to Associate.JudgeWJNeville@federalcircuitcourt.gov.au whether he intends to press his outstanding Applications, being the Contravention Applications filed on 4 July 2019, 20 August 2019, 10 September 2019, 1 October 2019, 5 November 2019 and 5 December 2019, or whether they can be dismissed in Chambers.
24.
Within 21 days, being by 8 January 2020, the Mother is to notify the Court via email to Associate.JudgeWJNeville@federalcircuitcourt.gov.au whether she intends to press her outstanding Application, being the Contravention Application filed on 26 October 2019.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In my view, the comments of Ms F in her 2016 Report, remain the most concise and accurate in recent times. At the risk of repetition, I set them out again, being selected excerpts from pars.89 and 92 of that Report (Exhibit A) (emphasis added):X’s parents have been completely unable to establish a cooperative parenting arrangement since separating. In my opinion, this must be attributed to Ms Charring’s total inability to see Mr Bunt as having anything to contribute to her only child and further to her desperate wish to protect X from a man she portrays as a violent paedophile. Indeed, given her beliefs, Ms Charring must be very frightened and keen to protect her only child. ……Ms Charring’s persistence in viewing Mr Bunt as a very damaging figure in their son’s life will increasingly impede her ability to allow her son to develop into a well-balanced, male child confident in his own gender. Mr Bunt has provided half of X’s genetic makeup and X should be allowed to be proud of his heritage. Ms Charring has been totally unable to resolve the rejection she felt by Mr Bunt prior their separation and been unable to separate her own feelings from X’s needs. This does not bode well for X’s future need to separate from his mother and to develop into an independent person with parental support.…A bitter, hostile, dysfunctional woman, Ms Charring has no understanding of the importance of Mr Bunt having a role in their son’s life and indeed given her perception of him, continues to actively seek to exclude him. The aetiology of this perhaps reflects her own upbringing when she experienced significant separations from her father and his untimely death when she was about 10. Apparently Ms Charring herself has little experience of a caring, involved father to assist her to recognise the importance of a father in a child’s life. The considerations in s.60CC(3)(d) and (e) are significant in this matter. As already noted, on many occasions, the issue of the very large geographical distance between Canberra and Town B remains a very large factor to keep in mind. This will remain a constant issue while-ever the parents live in such distant localities and in which-ever household X resides. Likewise, the Court must properly evaluate (i) X’s relationship with his younger sibling, C, (ii) the fact that X has always lived in the primary residence of his Mother, and (iii) while having spent regular time with his Father – even in the midst of the very regular but never established notifications to Care and Protection authorities – he has never lived primarily in his Father’s household. These matters must be weighed against the ongoing and regular failure of the Mother to facilitate, and sometimes her concerted effort to impede, X’s time with his Father. In my view, balancing these matters must result in X moving to live primarily with his Father and to spend one weekend per month with his Mother. I simply cannot, and do not, have any confidence in the Mother promoting and facilitating X’s time, and relationship, with his Father.