BUNT & CHARRING (No.3)
[2019] FCCA 3452
•18 December 2019
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 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
Within 21 days, being by 8 January 2020, the Father is to notify the Court via email to [email protected] 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.
Within 21 days, being by 8 January 2020, the Mother is to notify the Court via email to [email protected] whether she intends to press her outstanding Application, being the Contravention Application filed on 26 October 2019.
IT IS NOTED that publication of this judgment under the pseudonym Bunt & Charring (No.3) 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
X was born on … 2010. He has been a much-litigated child. In the early years of the contest between his parents before the Court (in 2012), shortly after they separated, the forlorn spectre and wan figure of his Mother would attend Court and, because she had no baby-sitter, the small pram/stroller would prop open the Court door. X was, in these circumstances, quite readily seen. So, from a relatively early age, I have known (or come to know) X rather better than many other children who have been (or are) the subject of litigation in this Court before me.
Similarly, over the many years of litigation between X’s parents – which is reflected in the nine folders of materials and Reports filed – the many Court events and multiple hearings have given me innumerable opportunities to see and to observe the parents, and to consider their often repetitive but nonetheless pained and frustrated comments, evidence and submissions. In short, because of the very long association I have had with the parties and through them (and the experts over the years noted later) I am very well placed and confident that I have had a singularly expansive range of engagements with the parents which have given me clear insight into the issues before me, as well as into their personalities, and much else.
Briefly stated, X has lived primarily with his Mother since his birth. The regularity and frequency of time with his Father has, almost invariably, been quite problematic. This is not because the Father does not want, or has not wanted, to spend time with his son. Rather, in addition to the logistics and geography involved (noted below), the regular stumbling block to X’s time with his Father has been the regularly unpredictable conduct of the Mother, which I have explored at some length in earlier judgments. The same issues have been on display for years and have been considered in multiple Family Reports. The Mother has been given (a) many opportunities to reform her behaviour, and (b) multiple warnings should she fail to heed the Court’s warnings. Unfortunately, and notwithstanding the many “last chances” given to her, nothing has changed.
Some years ago, the Mother moved from Canberra to the south coast of New South Wales, with the consent of the Father. Somewhat more recently, again with the consent (or perhaps more accurately, without formal opposition) of the Father – but on condition that she honoured her responsibility and commitment to encouraging and facilitating X’s time with his Father – the Mother moved from the south coast to Town B. Each move has resulted in X being geographically further from the Father. And each move has led to an increase in the lack of certainty of X’s time with his Father.
I simply note that the distance between the national capital (where Mr Bunt lives with his Wife) and Town B is just over 250 kilometres; a drive of this distance would usually take somewhere between 3 and 3½ hours.
Both parents have re-married. The Mother now has a young daughter, C. Mr Bunt and his Wife both provided evidence that they plan on starting a family “soon.”
Two recent judgments of this Court, in 2016 and 2018, outlined many of the same issues to be addressed here.[1] Accordingly, I will be somewhat more abbreviated in relation to certain aspects of the matter and otherwise simply refer the parties to, or incorporate, relevant parts of those earlier judgments.
[1] Bunt & Charring [2016] FCCA 3011; Bunt & Charring (No.2) [2018] FCCA 1153.
Likewise, the four reports prepared over the years have similarly outlined the issues between the parties. Those Reports are by: Dr D (dated 3rd September 2013, Exhibit C); Mr E (dated 16th February 2015, Exhibit B); and Ms F (dated 24th March 2016, Exhibit A). Ms F prepared a further Report, dated 12th May 2019. It is admitted into evidence as Exhibit A1. I return to these Reports later in these reasons.
Procedural History
In addition to what has already been said, and in addition to what is set out in the published judgments in 2016 and 2018, I note the following.
Following a hearing on 29th August 2017 (with final submissions filed on 16th May 2018; and judgment delivered on 12th June 2018 – noted above) of a Contravention Application, and an Application in a Case, brought by the Father against the Mother, the Court made Orders that included the following (Order 6):
(a)In the absence of the Mother moving to the Canberra region within 21 days of the end of Term 4, so as to enable X to commence Term 1 in Canberra in 2019, the child shall live with the Father from the commencement of the 2018 Christmas school holidays.
Further Orders were also made on 12th June 2018 for the child to spend time with the Mother in the event that X changed residence to live with his Father. “Time with” and related Orders were also made in the event that the Mother moved back to the Canberra region.
Orders were made on 3rd August 2018, pursuant to oral reasons delivered on the same date, in relation to “penalty” arising from the findings that the Mother had contravened Orders as alleged by the Father.
Following written submissions of the parties regarding “penalty” in the light of the Court finding the contraventions against the Mother were established, without reasonable excuse, oral reasons were delivered on 3rd August 2018 and Orders made.
On 26th October 2018, the Mother filed an Application in which she alleged various contraventions against the Father. Pursuant to Orders made on 10th December 2018, the Mother’s Contravention Application was stood over to a date to be advised.
On 13th December 2018, the Mother filed an Application in a Case in which she sought further parenting Orders, which included, among other things, an Order for sole parental responsibility and for a significant restriction/reduction of the child’s time with the Father.
On 8th January 2019, the Father contacted the Canberra Registry seeking to have the matter re-listed. He did so on the basis of the earlier Orders relating to the Mother and X moving back to the Canberra region to enable X to commence school in Term 1 2019, failing which the child would change residence and live with his Father in Canberra and spend time with his Mother in Town B.
On 9th January 2019, the Father filed a Contravention Application, essentially in support of the matters he had raised with the Registry just recorded. A brief hearing was held on 9th January 2019 with the Mother attending by telephone; the Father and the Independent Children’s Lawyer (“the ICL”) were present in Court.
Oral reasons (set out in detail below) were delivered and Orders pronounced on 10th January 2019, which gave the Mother (yet again) “one final chance” and provided for X to continue to live with his Mother and to spend more regular time with his Father. The Orders also required the Mother to undertake a significant amount of the transport in circumstances where most of the travel between Canberra and Town B has largely been undertaken by the Father. Unfortunately, as already adverted to, the circumstance of the Father regularly driving to Town B has led to numerous occasions when, en route to Town B, the Mother has cancelled the child’s time with his Father.
The salient points from the reasons delivered on 10th January 2019 (the full text of them is set out later in these reasons) were that:
(a)In her 2016 Report (noted further below), Ms F had little confidence in the Mother’s ability to promote the child’s relationship with the Father, and that a change of residence was likely to be necessary should the Mother’s conduct not change;
(b)The Father has little or no confidence in the Mother’s late-breaking promises of reformed behaviour on her part to promote X’s relationship with his Father;
(c)The experienced ICL shares the same view as the Father;
(d)The Court has the gravest doubts about the Mother’s capacity and reliability to promote the child’s relationship with his Father, and equally to ensure that the logistics of travel between Canberra and Town B are not used as a convenient (or otherwise) excuse to impede or to thwart the Father’s time with X.
On 14th March 2019, the Court made the following Orders:
1. The matter be listed for a Show Cause Hearing for half a day in CANBERRA on a date and time to be advised by the Court, with the purpose of such a Hearing being to provide the Mother with an opportunity to establish:
a. Why a change in residence of the child to the Father should not occur; and
b. Why any change in residence would not be in the best interests of the child.
2. Within 14 days of the date of these Orders, being by 28 March 2019, the Father is to file and serve any Initiating Application plus an Affidavit of no more than 5 pages in length to formalise his application for a change in residence of the child.
3. Within 14 days thereafter, being by 11 April 2019, the Mother is to file and serve a Response to the Father’s Initiating Application plus an Affidavit of more than 5 pages in length.
4. No less than 7 days prior to the Hearing, the Applicant and Respondent are each to file and serve an outline of written submissions of no more than 2 pages in length, regarding the best interests of the child and the possible change in residence of X.
5. No less than 3 days prior to the Hearing, the Independent Children’s Lawyer is to file and serve an outline of written submissions of no more than 2 pages in length regarding the same two issues - the best interests of the child and the possible change in residence of X.
On 27th March 2019, the Father filed an Initiating Application. It was not in “proper form” but was accepted by the Registry nonetheless. His supporting Affidavit, filed at the same time, contained his Orders sought. In short, those Orders sought to have X live with his Father. Notwithstanding the unrelenting discord between the parties, including the greatest difficulty in communicating, the Father still sought an Order for equal shared parental responsibility.
Pursuant to Orders, dated 8th April 2019, the matter was set down for a “show cause” hearing on 14th May 2019. The Orders of 8th April 2019 confirmed the Orders of 14th March, which provided for a time-table for the filing of relevant evidence (and written submission) at the hearing. They also explained that the Mother to show why the child’s residence should not be changed to live with the Father, and to spend regular time with the Mother.
The Show Cause Hearing could not proceed on 14th May 2019, primarily, but not solely, because the Family Report writer, Ms F, was not available for cross-examination. Orders were made on 14th May 2019 which listed the matter for Final Hearing on the next available date, being 2nd September 2019. Those Orders also directed the parties to file updating trial material.
Further Orders were made on 17th May 2019 that expedited the Final Hearing because an earlier date had become available. The matter was listed for Final Hearing on 7th June 2019 and the parties were again directed to file updating trial material prior to the final hearing.
The Final Hearing proceeded on 7th June 2019. At the conclusion of it the parties were granted a further opportunity to file and serve any supplementary submissions in light of the evidence given by the parties and supporting witnesses during the trial. Those supplementary submissions were to be no more than 2 pages in length and are set out later in these reasons.
Revised Oral Reasons of 10th January 2019
As foreshadowed, and for completeness, I set out now the reasons (slightly revised from the transcript), delivered orally, on 10th January 2019.
1) This is a matter with a prodigious history. It began in 2012. The child X is now aged 8½ years. There are now 7 volumes that comprise the Court file. The last formal judgment in it was delivered on 12th July 2018.
2) There have been 3 reports prepared in the proceedings: the first by Mr E in February 2015; the second by Dr D in September 2015, and the last by Ms F in March 2016. Those Reports have all been admitted into evidence, as Exhibits A, B & C respectively. For current purposes, it is sufficient to note the following matters from Ms F's Report.
3) At par.29 she referred to comments by the long-suffering Father, Mr Bunt, where he said (essentially) that while he did not want there to be a change in residence he saw no other option to secure a relationship with his son.
4) At par.89, Ms F noted that the parents had been completely unable to establish a co-operative parenting relationship. At par.92, Ms F considered the Mother to be a “bitter, hostile, dysfunctional woman [who] has no understanding of the importance of Mr Bunt having a role in their son’s life.” She noted how the Mother has sought actively to exclude him.
5) At par.99, Ms F noted the risks – positive and negative – regarding a change in the primary residence of X. That paragraph stated:
The benefit of changing X’s residence would be to allow him to have a positive, caring relationship with his father and certainly avoid him growing up to assume his mother’s perception of his father as a violent paedophile. Although X is at an age when his attachments are established, his ability to adjust to his father and his father’s new wife as his primary caring figures is very uncertain. Distance will also make regular time with his mother problematic and necessarily relatively infrequent if he moves to live with his father.
6) And Ms F said, at par.104, the situation is one of risk assessment whereby the Court has to weigh up the risk of changing X’s residence against the risks of him staying with his Mother. Ms F recommended fortnightly time with Mr Bunt, and in the event of the Mother’s persistent failure, a change in residence be considered.
7) On 12th June 2017, Orders were made for the Mother to return to the Canberra region within 21 days of the end of term 4, in order to make time-with arrangements between Father and son much more certain and predictable. The Orders continued by providing that, absent this move occurring, the child shall live with the Father. The Mother has confirmed that she cannot and will not make such a move, and accordingly, the Father now seeks that X live with him.
8) The Mother now says that she has turned a corner in her life, X is older, and she and the Father can “sort out” time-with arrangements between them. Other than her word, and given the history of non-compliance with Orders over the years by the Mother, she was not able to provide any other assurance that there would be any complete, or certain, compliance with Orders. She further said that one “time-with” per month would work best because of all the travelling involved between Town B and Canberra.
9) In response to this latter submission, the Father simply noted that the somewhat sporadic time that he had had with X involved only himself driving. Put another way, the Mother has done little or none of the driving between Canberra and Town B.
10) The Orders relied upon by the Father, dated 12th June 2018, issued following a contested hearing in relation to contraventions. Necessarily, they did not issue following a final parenting hearing.
11) The Mother is both contrite and assures the Court now that she can and will make parenting Orders work. The Court has only two options: accept or reject the Mother’s word. The ICL proposes a change in residence, among other things because the Mother has given assurances before and has not honoured them. The Father of course also seeks that X reside with him and spend regular time with his Mother. I accept his assurance that he will facilitate time and the relationship with his Mother.
12) I note too that the Mother said in the course of submissions how much X enjoyed time with his Father (and the Father’s Wife) during their Christmas time together.
13) Contrary to the views of the ICL, I proposing taking the Mother at her word (and not for the first time despite many unheeded warnings). There will be a trial period of each alternate weekend time for X to spend with his Father for two months. The Mother is to drive all sections of one of those weekends, and the Father is to drive the other – thus one drive per month as sought by the Mother. Absent any serious medical reason (supported by a medical certificate), if there is any non-compliance with this further period of grace, X will live immediately with his Father. A recovery Order will lie in the Registry to ensure that if X is not provided to the Father, it will issue to ensure that this occurs.
14) Moreover, if there is to be a further final hearing, X is to live with his Father, pending the determination of that hearing, which would arise out of the Mother’s Application in a Case, Filed 13th December 2018, which was just after the matter was in Court on 10th December 2018. It is unclear, in the light of the Mother’s comments in Court on 9th January if that Application (which includes sole parental responsibility) will be pressed by the Mother.
15) As with all things, time will tell. The ball, for the very last time – noting that many previous chances have been given to the Mother – is in her Court, which now relies solely on her word. It is up to her as to what worth may be put on it. It may certainly be the case that the Mother’s sudden change of heart and positive comments about the child’s time with his Father is little more than a very light but quickly passing morning mist that quickly burns up under the heat of travel and everyday pressures that have beset this matter since its inception for the past 7 or so years.
15) It is plainly the case that the Court cannot keep giving the Mother “last chances” without any consequence when failure inevitably ensues. So another “last chance” is again provided to the Mother. Regrettably, I have very little confidence that she will promote and facilitate X’s time with his Father, and that the Father’s persistence will again be severely tested as he strives to secure regular time with X. It is not just the genuine tyranny of distance here that works against the Father (and is used masterfully by the Mother for her gain and to the detriment of the Father), but equally (or even more so) the intransigence of the Mother to see any worth in X’s time with his Father. Year after year she has found ways to subvert and otherwise to thwart the child’s regular time with his Father. X’s time with his Father is not, from the Mother’s perspective, a priority at all. In such circumstances, even with the benefit of multiple family reports over many years, given the utterly fractured parenting relationship between the parties, to make Orders that are in the child’s best interests, is a completely fraught exercise and one which, almost inevitably, will require further intervention by the Court when X’s time with his Father is again thwarted by the Mother.
Orders Sought by the Applicant
The Applicant Father filed a further Initiating Application on 27th March 2019, which formalised his Application for a change in residence of the child. The Applicant’s Orders Sought were as follows (the “curious” numbering reflects what is contained in the Father’s Affidavit from which the following is taken):
Parental Responsibility & “Live With” Orders:
4. The parents will have equal shared parental responsibility for the child, X (born … 2010) (“X” or “the child”);
5. X will live / reside with his Father.
X’s “Time With” and “Communication With” His Mother:
6. During school terms X will spend time with his Mother as follows:
a. Every second weekend, with such weekend contact periods commencing at 3:30pm on Friday and concluding at 3:30pm on Sunday.
b. On each contact weekend, the Mother is to drive to Canberra to collect X on the Friday. The Father is to drive to Town B to collect X on the Sunday.
c. Unless otherwise agreed between the parties, changeovers will occur at McDonalds, Town A (Fridays) and McDonalds, Town B (Sundays).
7. Unless otherwise agreed between the parties, Order 6 will be suspended during school term holidays, and instead X will spend time with his Mother as follows:
a. During each and every school term holiday, from 12:00pm on the first Saturday falling after the conclusion of the school term until 3:00pm on the Sunday falling in the middle of the term school holidays;
b. For each and every school term holiday, the Mother is to drive to Town B to collect X on the Sunday.
c. Unless otherwise agreed between the parties, the changeovers will occur at McDonalds, Town A (Saturday) and McDonalds, Town B (Sunday).
d. During the long summer school holiday period during December and January, X will spend one consecutive ten-day block of time with his Mother commencing at 12:00pm and concluding at 3:00pm on a ten-day period of time to be agreed between the parties.
e. During the long summer school holidays, the ten-day block will be in the first half of each holiday in each year ending in an odd number, and the second half in each year ending in an even number or zero.
f. For each long summer school term holiday, the Mother is to drive to Canberra to collect X at the commencement of the ten-day period. The Father is to drive to Town B to collect X at the conclusion of the ten-day period.
g. Unless otherwise agreed between the parties, the changeovers will occur at McDonalds, Town A at the commencement of the ten-day period and McDonalds, Town B at the conclusion of the ten-day period.
8. X is to spend any additional time with his Mother at any other time, as agreed between the parties.
9. If X expresses a wish to speak to either parent at any other reasonable time, that parent is to encourage and facilitate this occurring. X may telephone his Mother at any time and the Father is to ensure that the child is available and be allowed to speak to his Mother in private. During school holiday periods when the child is with the Mother for a 7-day period or longer the same arrangement will apply with respect to X expressing a wish to speak with his Father by phone.
Changeover and Communication Between the Parties:
10. The parties are each to comply as strictly as possible with the changeover times specified in these Orders.
11. Absent agreement between the parties and absent proper notice of reasons for any unscheduled delays at changeover, both parties are required to give each other a period of “grace” of no less or more than 15 minutes either side of the scheduled collection / changeover time.
12. In the event that the Father considers that X is too ill to be made available to spend time with his Mother, he will provide appropriate supporting evidence to the Mother. This may be for example, but not limited to a phone conversation between X and his Mother or a medical certificate from X's General Practitioner (GP). The Mother may telephone the GP’s practice to speak with and obtain her own information from the GP as to X’s health.
13. Each of the parties is restrained from permitting their partners or other family members to be present at changeovers; noting that it is still permissible for their partners to accompany them on the journey to changeovers so long as they are not present and do not participate in the changeovers.
Further General Parenting Orders:
14. Each party is to advise the other of any significant medical or health related condition involving X whilst he is in his or her care and of any appointment either makes for the child to attend on any health professional.
15. The Father is to provide the Mother with the name and contact details of each and every health Care professional who attends on X within 48 hours of the attendance and such health Care professional is hereby authorised to provide any information concerning X to the Mother at his request.
16. Every child care centre and school, or other educational institution, at which X is enrolled or attends is authorised to provide the Mother with any and all information about X at her request and to advise her of and permit her to attend any events at the school or child Care centre to which parents are normally invited.
17. Both parents are permitted to travel with X outside of the Commonwealth of Australia, upon the provision of an itinerary by the travelling parent to the non-travelling parents prior to the proposed travel.
18. Neither parent is to denigrate the other or the other's current partner to X or in his presence or to permit anyone else to do so. Any reference the Mother makes of the Father to X is not permitted to be the Father’s Christian name apart from “Dad”, “Daddy” or similar paternal reference.
Other Matters:
19. Subject to orders made by the court on 3 August 2018, the Mother is to:
a. Reimburse the Father for costs in relation to his Contravention Application (and subsequent hearing) filed 14 November 2017.
b. Reimburse the Father for costs in relation to his Initiating Application filed 23 March 2019.
c. Enter a bond into the Court with surety of $750 to be of good behaviour in terms of compliance with these orders pursuant to section 70NEC of the Family Law Act 1975 (Cth).
Orders Sought by the Respondent
The Respondent Mother filed a Minute of Orders Sought on 28th April 2016, which provided as follows:
Minute of Orders Sought by the Respondent Mother
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’s surname is changed from Bunt to Charring-Bunt.
7. That the child spend time with the Father as follows
8. That in 2016 contact shall be as follows:
(a) From 4:30pm on Friday until 4:00pm on Sunday every second weekend starting 29 April 2016.
School Holidays
(a) In the first and second of the mid-year holidays from 10:00am Thursday until 4:00pm Sunday.
(b) In the last mid-year contact from Wednesday 10:00am until 4:00pm on Sunday. This also if the school holidays fall within a scheduled weekend visit, that will be included as a weekend visit.
(c) During the Christmas holidays from 10:00am on 21 December until 10:00am on 28 December and from 10:00am on 11 January until 10:00am on 18 January 2017. If the school holidays fall within a scheduled weekend visit, that will be included as a weekend visit.
9. That from 2017 weekend contact shall be confined to school terms and holiday contact shall be as follows:
(a) In the mid-year holidays in odd numbered years from 10:00am Saturday to 10:00am on the following Saturday in the first week of the holidays and in other mid-year holidays from 10:00am Saturday until 10:00am Saturday in the second week of those holidays.
If the school holidays fall within a scheduled weekend visit, that will be included as a weekend visit.
(b) In the mid-year holidays in even numbered years from 10:00am Saturday to 10:00am on the following Saturday in the second week of the holidays and in the other mid-year holidays from 10:00am Saturday until 10:00am Saturday in the first week of those holidays.
If the school holidays fall within a scheduled weekend visit, that will be included as a weekend visit.
10. That from 28 April 2017 that the child spend time with the Father on one weekend per month as follows:
(a) From 4:30pm Friday until 4:00pm Sunday on the last weekend of each month.
11. That the changeovers are to occur at McDonald's Town G. Notwithstanding the times in these orders the parties are to realise that traffic conditions may be a problem and that they are to text each other if either is going to be late.
12. During holiday periods when the child is with the father for a week or longer, if the child expresses a wish to speak to the mother at any reasonable time that the father is to facilitate this occurring. If the child expresses a wish to speak to either parent at any reasonable time that parent is to facilitate this occurring. Each party is to advise the other of any change in their telephone number.
13. That communication between the parties is to be by email only when the child is with the mother. Communication is to be only in regards to the child only. In the event of an emergency when the child is with the father, only at this time is the father to verbally call the mother.
14. That the mother is restrained from relocating the residence of the child from Town B without the father’s permission unless the relocation is to an area closer to Canberra than Town B.
15. That the child is not to be granted an Australian passport from either the mother or father and is to remain in Australia.
16. That the mother is to provide to the father details of any health professional involved with the child to authorise that person to provide any information the father may request. This order does not purport to require such person to provide any information.
17. That the mother is to authorise any school the child attends to provide the father with copies with school reports sent to parents and to furnish (at his expense) copies of school photographs. The father currently has access to the schools application “SchoolStream” for the distribution of weekly newsletters and upcoming school events. This order shall not be construed as requiring the school to provide any information to the father.
18. That each party is to advise the other of any significant medical condition involving the child whilst he is in his or her car of any appointment either makes for the child to attend on any health professional.
19. That neither party is to take the child to any counsellor without such prior notice as will give the other opportunity to discuss any proposed counselling with the proposed counsellor.
20. That either parent may attend school events to which parents are normally involved. This order does not purport to require the school to permit this to occur.
21. That neither party is to denigrate the other within the hearing of the child or permit any other person to do so.
22. That if either party proposes to take the child on a holiday for a week or longer out of the state of New South Wales he or she is to notify the other parent of where the child will be taken and to provide a contact number in case of emergency.
Special Days
(a) That the child spend time with the Mother on Mother’s Day if he is not otherwise living with the Mother on that day.
(b) That the parties share spending time with the child at Easter, Christmas and Birthday. The parties shall facilitate any change so that each parent spends either Easter, Christmas or Birthday period with the child each year.
Orders Sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer did not file any Minute of Orders Sought for the Final Hearing.
Ms F's First Report (24th March 2016)
Ms F’s first Report became Exhibit A. It was referred to at some length, and more briefly in the oral evidence she gave during that hearing, in the judgment delivered on 21st December 2016.[2] For ease of reference, and because it contains, in my view, very important comments and analysis, I set out below those parts of the 2016 judgment that deal with the evidence in her Report (emphasis added now):
[2] See [2016] FCCA 3011 at [36] – [54]
[36] The evidence of the Family Consultant, Ms F, was in two parts: her report Exhibit A, dated 24th March 2016; and her brief oral evidence. I will consider this evidence in that order.
[37] In her Report, at par.24, Ms F noted that the Father conceded that he did not think a change of residence to be in X’s best interests, but she also noted that the Father said that apart from a change in residence he did not know what other option he might have to secure a relationship with his son.
[38] At par.35, Ms F recorded that, according to the Father, the resolution of the parenting dispute came down to the parties “being able to get on better.”
[39] At pars.60 and 61, Ms F stated:
a) Regarding Mr Bunt’s application to have X living with him, Ms Charring commented that she did not know why he was taking such a step. Ms Charring surmised that Mr Bunt was not happy that she had been granted sole parental responsibility and did not believe that he wanted to pay child support anymore because he had fallen a month behind.
b) In terms of communicating with Mr Bunt, Ms Charring said that she was unable to talk to him. She said she had tried to communicate via email. However in his responses, Ms Charring said Mr Bunt would accuse her “of things all the time”. She showed me an email that she had received the week before her interview regarding X attending school. In the email, Mr Bunt had accused Ms Charring of unilaterally making the decision about which school X should attend. He had used words such as that he was deeply concerned about her actions. Ms Charring said that she had given the school Mr Bunt’s details.
[40] Ms F recorded (at pars.64 and 65) the Mother’s comments about X’s behaviour which led her to believe that the child was at some risk of sexual abuse while in his Father’s Care. However, because the Mother no longer holds any view that the child is so at risk with the Father, I need not consider these aspects of Ms F’s evidence.
[41] In the “evaluation” section of her Report, Ms F noted the following; first at par.89 (it is as well to set it out in full; the Court has added the sub-paragraph numbers for ease of reference):
a) X’s parents have been completely unable to establish a cooperative parenting arrangement since separating. In my opinion, this must be attributed to Ms Charring’s total inability to see Mr Bunt as having anything to contribute to her only child and further to her desperate wish to protect X from a man she portrays as a violent paedophile. Indeed, given her beliefs, Ms Charring must be very frightened and keen to protect her only child.
b) In her report dated 3 September 2013 Dr D in her report attributed Ms Charring’s behaviour and Mr Bunt’s response to their attachment styles. She concluded “Ms Charring had quite a difficult upbringing within which her attachments were compromised and disturbed and this is clearly affected her functioning and relationships since that time and is also likely to have set the context of understanding her reaction to the breakdown of the relationship with her husband thereby precipitating the current Court case”.
c) Dr D assessed Mr Bunt’s attachment style as “seemingly quite anxious” and saw him as having “high dependency needs, such that he craves the attention, affection and acceptance of others”. This anxiety was reflected in Mr Bunt’s presentation to me and indeed in his persistence in this dispute.
d) Ms Charring’s persistence in viewing Mr Bunt as a very damaging figure in their son’s life will increasingly impede her ability to allow her son to develop into a well-balanced, male child confident in his own gender. Mr Bunt has provided half of X’s genetic makeup and X should be allowed to be proud of his heritage. Ms Charring has been totally unable to resolve the rejection she felt by Mr Bunt prior their separation and been unable to separate her own feelings from X’s needs. This does not bode well for X’s future need to separate from his mother and to develop into an independent person with parental support.
e) There is no doubt that exposure to ongoing interparental conflict impacts negatively on child well-being (Burke et al, 2007). Burke et al (2007) commented “The association between intense marital conflict and children’s poor adjustment has been repeatedly demonstrated, and children are found to have more psychological problems when their parents are in conflict, either during marriage or following divorce (p2)”.
[42] At par.92, Ms F bluntly opined (emphasis added):
a) To an extent, Mr Bunt recognises the importance of X having a relationship with his mother although his suggestion of merely reversing the current arrangement displayed little understanding of X’s current attachment to his mother and how difficult a prolonged separation from her would be for him.
b) 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.
[43] And at par.94, she observed (emphasis added):
a) X presented as a bright, engaging little boy suggesting his residential arrangements thus far have not been unsatisfactory. The sole risk of continuing them is that Mr Bunt will continue to be denigrated and to have as minimal time as Ms Charring can achieve with X. Indeed even on the day of interviews for this report, Mr Bunt alleged Ms Charring made further notifications to the local Child Protection agency about his care and there is little indication that Ms Charring will ever adopt a more conciliatory approach.
[44] In relation to any possible change in residence, Ms F said (at par.99) (emphasis added):
a) The benefit of changing X’s residence would be to allow him to have a positive, caring relationship with his father and certainly avoid him growing up to assume his mother’s perception of his father as a violent paedophile. Although X is at an age when his attachments are established, his ability to adjust to his father and his father’s new wife as his primary caring figures is very uncertain. Distance will also make regular time with his mother problematic and necessarily relatively infrequent if he moves to live with his father.
[45] Summarising the difficulties and issues, at par.101, Ms F said:
a) The key issue in this matter is Ms Charring’s entrenched belief that Mr Bunt has sexually abused their son. In advising evaluators how to assess the validity of sexual abuse allegations Herman (2009) usefully lists the following hypotheses:
· “The child has been sexually abused by the suspected perpetrator
· The child has been sexually abused, but not by the suspected perpetrator
· The child has been sexually abused, but has denied or recanted abuse
· The child has not been sexually abused, but has developed false memories for events that never actually occurred
· The child has not been sexually abused, but is deliberately lying about being abused
· The child has not been sexually abused, and the allegation is based on a sincere misunderstanding of the child’s verbal or non-verbal behaviour by a concerned or mentally ill adult
· The child has not been sexually abused, and the allegation is based on a malicious false accusation by an adult or other child who is trying to achieve some specific goal (p262)”.
b) Mr Bunt would certainly adopt the last hypothesis. In my opinion however, Ms Charring is a concerned, rather than a mentally ill adult, who believes her child has been sexually abused based on her misunderstanding normal child masturbatory behaviours.
[46] In relation to any possible change in residence, Ms F said, at par.104:
a) In recommending the most appropriate arrangements for X, the risk of changing his residency must be weighed against the risks of him remaining with his mother. Precipitously removing X from his mother’s care in response to her beliefs could be deemed a highly punitive action against Ms Charring and not one that was likely to alter her belief system at all. It would also in my view, damage X at least in the short-term and Mr Bunt’s capacity to manage a very unsettled child and a new marriage is untested.
b) The distance in this matter is a further issue that makes frequent contact for X with both parents problematic.
[47] Finally, in her recommendations (at pars.105 – 108) Ms F ultimately recommended (emphasis added):
105. That Ms Charring undergoes counselling with a counsellor skilled in child development;
106. That for the next 12 months, X remains in his mother’s care and that he remains with her in the long term if she desists from any other notifications and/or sexual abuse allegations in the next 12 months;
107. In the event that Ms Charring cannot comply with [par.106], a change of residency should be considered;
108. That X has fortnightly weekend contact with his father to build up his relationship with his father and stepmother;
109. If Ms Charring does not comply with 108, a change of residency should be considered in 12 months.
[48] In her relatively brief oral evidence, Ms F noted the following.
[49] First, she confirmed to the ICL that if the Mother did not attend the counselling recommended to the Mother, and her negative beliefs about the Father continued, the child risked being exposed to the Mother’s adverse beliefs about the Father. I note this notwithstanding the Mother’s later evidence to the effect that she resiled from her oppositional beliefs about the Father posing some risk to the child.
[50] Secondly, it may be, Ms F said, that the Mother’s adverse views of the Father may also or ultimately be related to the Mother not understanding, or properly doing so, the child’s behaviours. In part, this possible misunderstanding by the Mother was one of the reasons why it was recommended that the Mother undergo some educative counselling, particularly in relation to childhood behaviour and development.[3]
[51] Thirdly, Ms F agreed with the description of the Mother that she was not malicious but perhaps more mis-guided and ill-informed.[4]
[52] Fourthly, importantly, Ms F agreed that if there were to be any more reports by the Mother to Care and Protection, then no further chances for the Mother should be permitted, and X should then go to live with his Father.[5]
[53] She also confirmed that, in her view, the Mother will use any excuse to prevent X from spending time with his Father. Likewise, she said that there were multiple parenting options to assist the Mother in coping with any difficult behavioural situations involving X.[6]
[54] In answer to questions from the Father, who pointed out the litany of problems in attempting to co-parent with the Mother, and the regular adverse comments levelled at the Mother in each of the three Reports before the Court, Ms F said that her main reason for not recommending a change of residence for the child was the “unsettling effect” on the child and the relatively limited time that the child had actually spent with the Father.[7]
Ms F's Second Report (12th May 2019)
[3] See the discussion at T 11- 13.
[4] T 12.
[5] T 17.
[6] T 17 – 18.
[7] T 21 & 22.
As earlier indicated, this Report, which was released to the parties, and the ICL, on 13th May 2019, is admitted into evidence as Exhibit A1. I set out below all sections of this most recent report of Ms F, beginning at par.49 (emphasis added):
[49] In terms of his communication with Ms Charring, Mr Bunt said Ms Charring would not communicate with him at all; would not answer any phone calls from him or respond to any text messages from him. He said Ms Charring would suggest that if she spoke to him, he would abuse her. Mr Bunt said at the end of the day he was not going to use his interview to judge or interpret Ms Charring’s behaviour.
[50] Regarding Ms Y, from the beginning, Mr Bunt said that X had got on well with his wife. However, he said that X would make comments such as, that his mother had said, that Country M people were stupid and dirty and would say this to his stepmother. He would also tell his stepmother that his mother did not like her to which his wife responded that this was all okay and did not matter. He said the issue would then go away. Mr Bunt said they did not discuss the tensions between his mother and him with X. He said that X just needed to be allowed to grow up, enjoying and loving the people in his life.
[51] Ms Charring said that she was happy with Mr H and that they were getting married at the end of the year. She assured me that there was no violence or issues in their relationship.
[52] Ms Charring assured me that she did not denigrate Mr or Ms Y. She said she did not say anything to X about Ms Y because she did know anything about her. Ms Charring alleged Mr Bunt had told his wife that she was a violent person and would bash her.
Family Violence and Abuse
[53] Regarding her allegation that Mr Bunt physically assaulted her, Ms Charring explained that there was an incident in Town G when X had not wanted to go with his father, and she had to practically drag him out of the car. She recollected that X would not stop crying and did not want her to go. According to Ms Charring, when she was not quick enough getting X into Mr Bunt’s car, Mr Bunt grabbed her and pushed her out of the way back onto a car that was parked next to his, advising her that she was too slow. At the time, Ms Charring said that Mr Bunt was angry.
[54] At the time of this incident, Ms Charring said Mr Bunt had an Apprehended Violence Order (AVO) against Mr H, her partner. Ms Charring alleged that Mr Bunt had made false claims at the police in Town G to take out the AVO against Mr H and that Mr H was advised to accept the AVO without admissions. Ms Charring alleged that X would come home upset, complaining that his father had kept on asking him questions to which he had told his father that he did not know, going on to complain that his father kept asking him again and again. Ms Charring said that Mr Bunt had falsely alleged that Mr H had gone up to him in full view of her and X and had raised his fist to his face. Ms Charring complained that X had been coming home and bashing her and said that Mr H had walked up to Mr Bunt and asked him to desist encouraging this behaviour.
[55] Ms Charring complained that X had been belting into her to the extent that she had to take him to behavioural therapy. When she asked her son why he kept on hitting her, Ms Charring alleged that X replied, “Mr Bunt tells me to”. When asked why Mr Bunt would do this, Ms Charring said “because that was what Mr Bunt did to me at the end of our marriage”. Ms Charring said that Mr H also asked Mr Bunt to stop being late for pickups. She said Mr H had told Mr Bunt that his behaviour was upsetting X and that she was sick of having bruises all over her. After this, Ms Charring said that Mr H had walked off and got into his car and said that X and she had not seen anything. Ms Charring heatedly disputed Mr Bunt’s assertion that the incident had been in full view of her and X.
[56] Ms Charring alleged Mr Bunt was constantly verbally abusive to her. In March, Ms Charring said she had to beg Mr Bunt to stop abusing her via text messages and said she had a list of abusive text messages that Mr Bunt had sent to her. She quoted from these and noted they included insulting comments such as “Are you thick?”. According to Ms Charring, Mr Bunt constantly texted her in a critical manner and said he had nothing nice to say to her at all. A further comment Mr Bunt had texted to her straight after she had C and indicated that she could not drive to Town G was “You’re a self-centred, useless cow”. Ms Charring alleged Mr Bunt had repeatedly chanted to X that she was “a fucking fat woman” when she explained she could not drive to Town G. Another text cited by Ms Charring in December 2017 included Mr Bunt telling her that she was “an ignorant, self-serving, an ignorant blind, self-serving effing cow”.
CHILD
X
[57] X said he did not know why he had to talk to me. He then said he knew that he had to come to see me but reiterated he did not know why and speculated that it was probably just to have a talk or something. After I explained my role, X told me that he liked living in Town B with his mother because there was not too much to do there. When asked what he did do in Town B, rather contradictorily X said that it was very hard because he did do so many things.
[58] When asked what the good things were at his mother’s house, X responded “I like it because I get to play with my little sister”. He said he helped look after her. X said he did not like giving his sister his drawings because she ripped them up. X said that his mother’s partner bought a home about 12 months ago and lived somewhere near the L Park in Town B. He said Mr H did not live with them but came to stay sometimes. X described his stepfather as nice.
[59] In response to my query, X told me that he liked his stepmother at his father’s house. X said that he thought that it was “fine” to visit his father every second weekend and said that he did not mind when he came. When asked if he would like to come more, X said that he did not know and that he did not mind. When I asked X if he had ever imagined living with his father fulltime, X said he would be worried about what he would do because there were too many things to do in Canberra. When asked what the good things would be about living with his father fulltime, X said this would mostly be when he went to places where he could play with things. He said that a bad thing at his father’s would be that he would miss his mother.
[60] If he had three wishes, X said that he would wish to live with his mother, would wish that Mr H would live with him and after some thought, said he did [not] know what his last wish would be.
[61] If it was decided that he was to come to live with his father fulltime, X said that he thought that this would be a little bit bad and a little bit good. He thought that it would be bad that he would not have someone like his little sister to play with but said that the good thing would be that he would have lots of things to do. X did not seem too upset about the idea of a change.
[62] X told me he was in Year 3 at school. He said he did not do any team sports such as soccer at weekends but said that he would probably like to. He went on to say that this would be something for him to do. He commented that his little sister could watch him.
[63] If he was naughty, X said that his mother mostly just sent him to his room and would sometimes smack him if he did not stop what he was doing. If he was naughty when he was at his father’s, X said that his father just started to raise his voice and did not smack him. X said he had his own room at both houses. He said that at his mother’s he had his own bookshelf and desk and said that he did lots of drawings. He volunteered that he also made comics and said he had made 50 of them. X said he did this at his father’s as well. X chatted about a couple of books that he liked. He told me that he had all the Captain Underpants books.
[64] X told me that he was going well at school. He thought he might become a teacher when he grew up. X said sometimes his friends would change. X said he did not have any pets at his father’s because his stepmother did not like animals and was not allowed to have animals at his mother’s rented property. He chatted about what foods he liked. He said his mother no longer cooked one of his favourite things, saying that he should try other things.
[65] When he was with his mother on weekends, X said that sometimes they went to the shopping centre and to Muffin Break. He said he really did not have friends over although he said he could have them at weekends, but it had not happened yet.
[66] X told me that his parents did not really get on. Looking sad, he said that this did not bother him and said it had been like this for a while. X told me he did not know why they did not get on and said that neither of his parents said much about the other. If he had worries, X said he would talk to a person called Mr V in Town B who he went to see. He thought he went to talk to Mr V every fortnight.
[67] In conclusion, X said that maybe he should just live with his mother and come and visit his father. He did not know how he would feel if the Judge said he was to come to live with his father. X talked more about his little sister and how she was teething. He chatted about getting his molars. X told me he had grandparents at the Region L and a grandmother in Town B.
Child’s relationships
[68] Mr Bunt described his son as being still very much of an only child, who craved attention and got on well with adults more so than children. Mr Bunt said that X had his own room at his place and felt very much at home. Mr Bunt said he did not have any issue in X was with them and that he could ring his mother in private if he expressed a wish to do so. During the school holidays, Mr Bunt said that X rang his mother for 26 minutes on the Wednesday morning.
[69] If ever X’s behaviour was challenging, Mr Bunt said that he would mainly just become pouty and would go into the corner for a little while. If X was particularly rude, Mr Bunt said he would send him to his room perhaps for 5 minutes and that X would then come out and apologise. Mr Bunt said he did not see him as much as X saw his mother, so he tended to be the good dad, engaging in fun activities. Mr Bunt said his wife would tell him to be more sensible with X and stop buying him too much stuff.
[70] Mr Bunt went on to say that he could not fault the way Ms Charring had brought X up, describing him as a balanced child who appeared happy. Mr Bunt said he kept in contact with X’s school principal and had learned that recently X had been on detention several times for hitting other children, for ignoring the teacher and for throwing things and having tantrums. He considered that X’s actions were normal for a boy of his age.
[71] Ms Charring confirmed that X was seeing a counsellor called Mr V who was assisting him with his anger. She said that X had been playing up at school and had been on detention more than 26 times the previous year. She said that ever since the visits changed from monthly to fortnightly, X had been acting up at school in a “shocking” way.
[72] In March 2016, Ms Charring advised X began calling his father “Mr Bunt” and insisted on calling Mr H “Dad”, arguing that C would call Mr H “Dad” and asking why he could not.
OBSERVATIONS OF INTERACTIONS
X with Mr and Ms Y
[73] Enthusiastically, Mr Bunt asked X if he recollected having been to the lake outside my office window previously and how they had travelled on a boat, had a meal and come into the shore close to my office. Laughing they all chatted about some open houses they had been to. Mr Bunt commented how much X looked like him, jokingly adding, “poor kid”. Mr Bunt told X how he had been to the gym every day and asked him if he was looking better.
[74] X happily engaged in the conversation. They chatted about a restaurant they were to go to over the weekend for dinner and about what they would cook for some visitors from Country M. X suddenly announced, “C’s walking” and Mr Bunt responded enthusiastically to this.
[75] Playfully, Mr Bunt suggested to X that they could build a slide from my office window into the lake. They all engaged in chatting about this. Mr Bunt told a couple of jokes. Ms Y showed more interest in C walking. They chatted about what age X had walked and about a visit to K Park. I heard how X had gone on a very scary ride.
[76] Mr Bunt asked X if they had stopped for lunch at Town G on the way. Ms Y told Mr Bunt he was too soft when he told X he had charged his iPad for him. They talked about some games that they enjoyed playing together. Mr Bunt saw a fish jumping out of the lake and talked about having been canoeing previously. Mr Bunt chatted about having been dragon boat racing and Ms Y talked about a forthcoming dragon boat festival. Ms Y talked some more about what food they would have the following day and Mr Bunt suggested to X that they might cut carrots into the shape of nuggets so that then he would eat them.
X with Ms Charring, Mr H and C
[77] When asked, Ms Charring did not want to tell me C’s date of birth, advising that she wanted to keep this private. She told me C was 15 months old. Ms Charring said they had a long drive, by the time they factored in stops for lunch. The family were very quiet when seen together but chatted about the lake outside the window. Ms Charring attributed them all being so quiet to them having had a long drive. They chatted about the price of food around my office and in Town A where they had bought food. X commented on C enjoying her bottle.
COLLATERAL INFORMATION
Interview with Ms Y – Father’s wife
[78] Ms Y told me that she had a very good relationship with X and did not mind having him staying with her. She said that she thought that it would be fine if he came to live with her more because she and her husband could share his care. Ms Y did not think it would impact adversely on her time with Mr Bunt because she said X was very understanding and if they wanted time together, X would readily allow them to do so. Mr Bunt said that X had improved a lot since she had first known him. She said at the beginning, it had been difficult but said that now when they knew each other well, it was easier.
[77] Initially, Ms Y said that sometimes X had not treated her very well although she could not remember what he had done, because it was a long time ago. She said she would ask X to think about what he had done and then respond to her. By way of example, Ms Y said they had recently had a fun day at K Park but when X had behaved in a challenging manner, she had told him he had to talk to her about it. Ms Y detailed the incident and how she had also talked to Mr Bunt about what was happening. Mr Bunt said she had told X that it did not matter if he did something wrong so long as he did not always say it was not his fault and accepted that he needed to improve.
[80] Nowadays, Mr Bunt said she and Mr Bunt shared the home duties. She said previously, Mr Bunt had been studying a lot and she had done most of the home duties but that now that he was finished studying, he shared in them. Previously, Ms Y said that X used to say quite a lot about his mother, but she would not comment and rather just listen. Ms Y said that X had told her that she was the best cook in the universe. She thought that this was too much praise.
[81] Ms Y said she needed to teach X that he needed to finish whatever food he put in his bowl, explaining how he would take food and leave a lot. Ms Y said that her husband was softer hearted. Mr Bunt said that she mostly had to deal with any behaviour problems that arose because her husband did not want to argue much with his son. Ms Y said that she wanted to solve any problems. She said that sometimes this was a bit hard but noted that X was getting better and better because he knew her well and he realised he needed to think and talk to her. Ms Y noted that X could not get away with things with her.
[82] Ms Y did have some experience with children herself being the second child in a family of five children. Ms Y advised she had a niece and a nephew and said all her family were in Country M. If X came to live with them, Ms Y said she would train him to look after himself more. When she first met X, Ms Y said that initially, she would do chores for him but would encourage him gradually to do more for himself. Ms Y noted that X knew her style. Ms Y said sometimes she did not want to make decisions such as whether X could have another chocolate and would tell the little boy to ask his father. She described X as a fast learner.
Interview with Mr H – Mother’s partner
[83] Mr H considered that it was best for X to stay with his mother and thought that it would not be right to stop him from seeing his father. He said that of course, he should see his father. Mr H told me he had two older children, aged 22 and 13. He said he saw these children every school holiday.
[84] Mr H said that he saw his role to X as being his “half father”, amending this to stepfather. When asked what the role of stepfather was, Mr H commented that this was really a father role and said that he was not worried that X called him “dad”. He said that he did not ask X to do this, but that X voluntarily did so.
[85] In response to my query, Mr H said he did not say much to X about his father and said he tried to stay out of the current dispute, not wanting to be involved. If X was difficult at home, Mr H said he let his mother deal with it and stayed out of the matter. Mr H said that X enjoyed going to the park and to the shopping centre with him and added that they would also go to movies.
[86] Mr H then declined to answer any more questions about his business or his life.
EVALUATION
[87] This long-standing dispute has already marred much of X’s childhood. Mr Bunt did not think much had changed in Ms Charring’s view of him and that her continuing underlying premise was that he did not have a role to play in their son’s life. Indeed, Ms Charring sought to further restrict the amount of time X spent with his father and maintained her negative view of her ex-partner, continuing to portray Mr Bunt as a verbally and physically abusive man.
[88] Mr Bunt has certainly been tenacious over the years in pursuing regular time with his son and now is so confident that he will assume his residency that he has enrolled him in a Canberra school.
[89] There are arguments both in favour and against a change in residence in this matter. Arguments in favour presented by the father relate not only to his frustrations in regularly seeing his son but also to his perception that he can offer a richer life to X. He argues that he values Ms Charring’s role and will promote this. However, while Mr Bunt presents himself as a very concerned, caring Christian father, his text messages to Ms Charring are highly derogatory and abusive and somewhat undermine his assertion that he will promote Ms Charring’s role. While no doubt these messages ensued from Mr Bunt’s extreme frustration, they lead to concern about how he will cope with any challenging and frustrating behaviours that might be engaged in by his son. Such behaviours could be anticipated if X is unsettled by a move to his father’s care and by being separated from his mother, stepfather and sister as well as his extended family, especially his maternal grandmother.
[90] X is already demonstrating challenging behaviours at school and while the aetiology of such behaviours cannot be definitively established, in my opinion the long-standing, high-level conflict between X’s parents cannot be assisting.
[91] Mr Bunt and his wife undoubtedly have the benefit of more education than Ms Charring and possibly her partner, about whom I know little. They also have an extended network of friends. This must be balanced against the familiar longer-term lifestyle offered by Ms Charring and the extended family support she enjoys.
[92] Arguments against change in residence, that is, why a change in residence should not occur and would not be in X’s best interests, must include the unsettling impact of moving residence and schools on him; the untested nature of Mr and Ms Y’s ability to cope full-time in the short and long-term with a possibly very unsettled child; X’s own wish to remain in his mother’s care and the need not to disrupt his relationship with his half-sister.
[93] As noted, Mr Bunt has already responded to frustration in a less than desirable manner. As a stepmother, Ms Y advised she would seek to address some of X’s behaviours that concerned her. The success, and indeed the desirability of any such efforts, is very uncertain and in my opinion, outside her role as a stepparent. Conversely, little criticism other than about a dispute with Mr Bunt, has been directed to Mr H whom X has elected to call “Dad”.
[94] X’s relationship with his half-sister is undeniably important and should be developed and maintained.
[95] With some reservations because of Ms Charring’s long-standing, implacable antipathy to Mr Bunt, in my opinion X should remain in his mother’s primary care. This is principally based on my expressed reservations regarding Mr and Ms Y’s actual ability to care for an unsettled child; on X’s wishes and on his relationship with his sister. Even if there was no dispute at all in this matter, given the distance between the parties, the pressure on all concerned would be reduced by X spending time with his father once a month and during school holidays. In such a challenging matter, the distance X and his parents are required to travel to facilitate his time with each of them, represents yet another opportunity for dispute and a significant compounding factor.
[96] In my opinion like all children, X needs the opportunity to engage in team sports and other extracurricular activities in his hometown. This will be more feasible if he is only away once a month.
[97] X should be offered the opportunity of overseas holidays with his father and stepmother.
Ms F’s brief recommendations were as follows:
[98] It is therefore respectfully recommended,
a) That the parties have joint parental responsibility;
b) That X resides in his mother’s primary care; and
c) That X spends two-night weekends with his father once a month with the travel being shared between his parents, either by meeting halfway or by his father going to get X and his mother coming to collect him.
Oral evidence of the Family Consultant (Ms F)
Ms F’s oral evidence may be summarised as follows. The ICL took the main role in cross examination followed by each of the self-represented litigants.[8]
[8] Ms F’s oral evidence is located at Transcript (12th July 2019) pp.6 – 20. Hereafter “T” followed by the page number.
The first matter addressed with Ms F was simply a clarification (and the provision of information) of what she had described in par.36 of her second Report in relation to an incomplete and somewhat inaccurate account given to her by the Mother that the Court had ordered her to return to the Canberra region.
It was explained to Ms F that, following the hearing on 29th August 2017 (with final submissions filed on 16th May 2018; and judgment delivered on 12th June 2018 – noted above) of a Contravention Application and Application in a Case brought by the Father against the Mother, the Court made Orders that included the following (Order 6):
In the absence of the Mother moving to the Canberra region within 21 days of the end of Term 4, so as to enable X to commence Term 1 in Canberra in 2019, the child shall live with the Father from the commencement of the 2018 Christmas school holidays.
Consequential Orders were made for the child to spend time with the Mother in the event that X changed residence and lived with his Father. “Time with” and related Orders were also made in the event that the Mother moved to the Canberra region.
Further Orders were made on 3rd August 2018, pursuant to oral reasons delivered on the same date, in relation to “penalty” arising from the findings that the Mother had contravened Orders as alleged by the Father.
All of this was to confirm to Ms F that the Court’s Orders were predicated upon a very long history of non-compliance with Orders by the Mother, and multiple warnings to her about the possible consequence of continued non-compliance, including a possible or likely change of residence of the child to live with his Father.
As noted in par.89 of her last Report, Ms F said that she had some doubts about the Father and his Wife being able to cope in settling X if/when he became unsettled.
She confirmed that she had seen some of the Father’s SMS messages to the Mother (she set out briefly some of them in her Report – see par.56). She took them to be expressions of ongoing frustration by the Father. In her view they showed a degree of impulsiveness and some lack of control. She acknowledged that the Father has sometimes acted out of extreme frustration because of the significant period of time it has taken him to secure reliable, regular time with X. It could be, she said, that the Father’s frustrated expressions might translate into some difficulties if X were to act up while in his care.
Ms F also said that it might be the case that Ms Y might “over-step the mark” if she pursued a course of ensuring that X was taught “proper behaviour.” It was noted that Ms Y would likely be a “stay at home” parent, especially since (as noted below) she and the Father hope/plan to start a family of their own soon. This additional person in the Bunt household, particularly were X to be living primarily with them, would basically require good “management” all round.
Ms F confirmed that X’s relationship with his young sister, C, was important to him. In the short-term, if he resided primarily with his Father, he would miss C. His reaction or response longer-term, as with everything, would depend on how all relationships were “managed.”
Ms F confirmed that, if there was to be a change in X’s primary residence, it would reasonably be expected that there would be a period where X would likely be unsettled to some degree. There would need to be available counselling and other appropriate support, both for the child and for the parents. It would be imperative that nothing was done to fuel further [if that were possible] the adverse relationship between the parents.
Ms F suggested that if there was to be a change in primary residence, the arrangements for X to spend time with his Mother and the remainder of her family, should be once per month, given the large amount of travel involved. Obviously, there should be much more regular contact via electronic means. Ms F was not keen on the idea of the Father relenting or yielding to X if the child was upset and wanted to see or spend extra time his Mother. The child should be “distracted”, she said, and the Father should not try to negotiate more time with the Mother. The child should and would obviously be able to call his Mother at any time he wished whilst with the Father.
She acknowledged that whatever the Court ultimately determined, it is inevitable that the child would be caught up in the ongoing contest. She said that this did not alter her recommendations. Ms F acknowledged that she has not seen or heard evidence that indicates there would be a cessation of hostilities between, or changes in attitude of, the parents.
Ms F did say in her oral evidence, by reference to her first Report (in 2016) that if X continued to live with the Mother and there was no change in the Mother’s attitude towards the Father, and she continued not to comply with Orders, that there should be a change in residence.[9]
[9] See T 13 - 14.
She acknowledged that she had changed her view/recommendations from 2016, which was mainly on the bases that (a) the Father had sent adverse SMS messages to the Mother, (b) X was two years older and had a close relationships with his younger sister C, and (c) a concern about how Mr Bunt and Ms Y would cope as parents, especially Ms Y fulfilling what Ms F perceived to be the “step-Mothering role” in relation to X.
Ms F acknowledged (and hoped) that if the Bunt family were able to welcome a baby into their home later in the year, this child would be a focus for X’s affection and attention, just like C.
She confirmed that X seemed quite unconcerned and not upset about any prospect of a change in his residence. This was also set out at par.61 of her Report. Given his age, it may be, she said, that he did not fully grasp the realities of the unfolding situation.
Ms F said that X’s adverse comments against each parent, but especially against his Father, was more likely to reflect his concern to try to please each parent rather than any actual dislike or discontent. On the other hand, X’s serial, regular detentions at school for aggressive and other adverse behaviour were not, in her view, “normal”.[10]
[10] See par.90 of her Report, and the later evidence of the Father following his discussion with X’s school.
Mrs Charring inquired of Ms F if she knew that the Father had ADHD, and whether this might impact on his capacity to parent X. To this, which I note has not been the subject of much or any evidence in the past, Ms F said that the fact the Father was holding down a job reflected that he was managing this condition well. She also said, in response to further questions on the same subject, that such a condition was not necessarily related at all to what was described by the Mother as the Father’s “abusive outbursts.” Nor, she said, did such a condition, on the evidence, likely put X at any risk of abusive behaviour or danger. She confirmed further that ADHD does not excuse any violent behaviour.
Ms F said that whether the Father did or did not respond well to any course he undertook very much depended upon his motivation and attitude in undertaking it.
The Father’s Oral Evidence
The Father confirmed that his normal work hours were between 8.30am and 5.30pm. He said that he had significant flexibility in his work regime, which would, for example, enable him to take X to school. He also said that his Wife had significant flexibility in her work hours. He confirmed that there would/could be occasions when X was in after-school care.
The Father confirmed that the everyday labours in his household are very much shared between him and his Wife. He said that when X stays with him the usual routine is dinner, homework, reading in bed, and bed-time between 8 – 8.30pm.
He said that he had accrued a large amount of leave. This is relevant if, for example, assuming that there is a change in residence, X is unsettled and he needed to take time off work. Moreover, if more time was needed to be at home, Mr Bunt said that he could also purchase leave.
Mr Bunt said that he manages 20 staff, and that where he works has a “family first” policy.
Mr Bunt said that when he picks up his son, X often has a range of bruises on him. Likewise, he recalls an occasion when X had a bruise on him (which the Mother alleges happened while he was in the Father’s care) but X could not recall how he got it. The Mother’s contention (as alleged by X) that the bruise was because the Father “kicked him”, was confirmed by the Father to be utterly false. With some equanimity, Mr Bunt simply said (in my view very fairly) that he does not usually respond to such allegations, of which there have been many over the years, simply because they are not true.
For my part, I simply observe that the first Report in the proceedings, which came from Dr D, arose specifically from the Mother’s claims that the Father sexually abused the child. This claim was not established. Likewise, the Mother’s persistent notifications to Care and Protection authorities have never given rise to anything other than the claims themselves. Indeed, on earlier occasions, the Mother has been warned about her persistence in making such adverse notifications which have no basis.
The Father confirmed that his usual practice is that if there is any injury to X he takes him to a medical professional and then notifies the Mother. He gave the example a year or so ago where X was running and hurt his knee. The child was taken to hospital, photos were taken and sent to Ms Charring.
He said that he expected the Mother to continue to make opportunistic allegations against him, which he will continue to try to ignore, except where an explanation was necessary about any particular incident.
I took the Father’s comments here to be somewhat matter-of-fact about coping with the relentless number of allegations made by the Mother over the years.
In relation to the alleged “abusive SMS” messages sent by the Father, he noted that all messages had a “context” and that the context was not always set out. I took this comment to be less as an excuse but more of an explanation in the light of the years of hostility and poor communication between the parents. I did not take it as an exculpation by the Father of any adverse comments he made against the Mother. The Father also noted that he had 8 years of SMS messages to contend with and to scroll through, which would provide the relevant context for each message![11]
[11] T 32.
Mr Bunt confirmed that he and Ms Y would co-parent X if he were to live primarily with them. He confirmed that Ms Y, while a co-parent, would not ever seek to usurp the role of Mrs Charring as X's Mother. He confirmed that neither he nor his Wife smack or punish X. The usual form of discipline is a “time-out” arrangement, and as much “discussion” as is appropriate.
In terms of continuing to try to co-parent with the Mother, Mr Bunt said that he was open to a regular “co-parenting meeting”, aided or facilitated by a counsellor.[12]
[12] See T 30.
Returning to the topic of aggressive or inappropriate SMS messages to the Mother, the Father confirmed that he sent one asking [rhetorically] “if the Mother was thick?”. He said that he sent it to try to get the Mother to comply with Orders, and therefore it was for her benefit. He agreed that sending it was not in X’s best interests. He denied sending messages to the Mother where he called her either a “useless cow” or a “fat woman.”
Regarding X’s difficult behaviour at school (e.g. hitting and kicking), Mr Bunt said that he had spoken with X’s teacher and the school Principal, both of whom said that the child’s behaviour was basically “normal”. For my part, I took such a comment as really meaning that a child who is caught up in constant litigation and family disruption, which has been the case with X for many years, some “allowance” was given at school, without anyone condoning such behaviour. I accept that this assumption or view was not formally put to any party for comment. I stress that it is essentially an observation.
Moreover, the Father said that X’s behavioural issues really only occurred when there was a “substitute” teacher at the school and no relevant issues arose when his normal teacher(s) were present. The Father confirmed that he maintains regular contact with the school Principal.
In relation to managing any transition of X to a new school in Canberra, were this to be necessary, the Father said that he would ensure that a school counsellor was involved, as well as ensuring that the Mother and the child were properly kept informed.
In answer to questions from the Mother, Mr Bunt said that he had a wide but close social network primarily through his Church. He also confirmed that in the past he had offered the Mother money to assist her in ensuring that X participated in extra-curricular activities. He said that such offers were not taken up by the Mother, who (he said) did not have much money, but that he had not made any similar offer more recently, certainly not within the last 12 months.
The Father also confirmed that when X speaks to the Mother on the telephone (or any other electronic means), (a) the Father is not present, and (b) X has a private room to himself to speak with his Mother.
The Father expressed some concern (see par.93 of the Family Report) that X has started calling Mr H “Dad.” He also confirmed that there was a recent time when he returned the child late to the Mother. He said that this was because he hit a wombat while driving.
The Mother asked the Father if he thought it was appropriate for the child to be taught swear words in Language W by Ms Y. The Father said that this did not occur. He confirmed that X regularly asked Ms Y what the Language W word was for a range of things, but there is no swearing.[13]
[13] T 38.
The Father confirmed that, at times over the years, he has been frustrated and has expressed this frustration. The Father also said he usually has not read many of the Mother’s Affidavits over the years because they contain significant embellishment and, in his view, much diatribe. He finds the volume and contents of the material from the Mother “quite repulsive and quite distressing.”[14] He accepted that, at times, he has been very frustrated and his expression may have been unhelpful and disparaging of the Mother.
[14] T 39.
The Father reiterated that he had been very restrained for 8 years trying to ensure time with his son, with only occasional expression of his frustration. Such SMS messages are not indicative of his character. He confirmed that he would not respond to X as he has done occasionally with the Mother because X is a child.
The Father confirmed that he was diagnosed with ADHD as a child. He said that this has had no impact on his job, his life, or his parenting.[15]
[15] T 42.
Subject to what is said later in these reasons, and recalling my earlier comment of the years I have had to observe and listen to both parties (and read their prodigious swathe of documents), I accept Mr Bunt’s evidence. He is focussed and determined in his care of X. He has endured numerous occasions when the Mother has, deliberately or otherwise, effectively sabotaged his time with X. He has persisted in his attempts to secure regular and consistent time with his son. On significant occasions, he has either permitted the Mother to relocate, ultimately to his detriment and that of his relationship with his son, or he has taken no legal action when the Mother relocated without his knowledge or consent to Town B. This has proven to be a move of immense adverse significance for the Father and son relationship.
The Father has, at times, acted inappropriately towards the Mother in sending various SMS messages. However, without excusing the hurt that those messages may have caused, in the larger scheme of things and over the significant length of the proceedings, particularly where he has been the subject of innumerable notifications to Care and Protection services, including specific allegations of abuse, none of which has been established, he has shown not only commendable restraint but significant fortitude in pursing what he sees as being in X’s best interests.
In short, in my view, Mr Bunt has maintained a generally respectful, and child-focussed approach in endeavouring to spend regular time with his son. He is detailed, diligent and as attentive as he can be on what is in X’s best interests. He has endured years of frustration in dealing with the Mother. Overall, I have no reason to doubt his evidence in any relevant respect. Further, I have no doubt that Mr Bunt will ensure that the child’s relationship with the Mother will be promoted should X live primarily with him and his Wife.
As I note below, the evidence over the years, in my view, plainly points to the Mother regularly putting matters of logistics as well as her own interests above those of X. In my view also, much of the Mother’s views about what she believes to be in the child’s best interests, while earnestly held, are either very narrow and ill-informed, or in a worse case situation, result from hurt she suffers from the breakdown of her relationship with the Father. In the latter case, it may be that she remains (albeit perhaps sub-consciously) intent on making life difficult for Mr Bunt.
The Evidence of Ms Y
It is as well to record at the outset that Ms Y was a very engaging, bright and, in my view, savvy witness. She was clear, and notwithstanding some occasional mis-understanding in expression – either in the questions put to her and or in her comprehension of them – she impressed as being acutely conscious of not encroaching upon the role of X's Mother, or the relationship between X and his Mother.[16] This said, she observed on more than one occasion that, in her household with Mr Bunt, she is no “shrinking violet”, and will express a respectful but firm view to both Mr Bunt and to X regarding what she considers to be correct behaviour.
[16] Ms YMs Y hails from Country M and speaks Language M. She teaches X some of these languages.
She said that generally, X’s behaviour in her household is good. Sometimes, unsurprisingly, the child “acts out”; when this happens, she said that it was her role, and Mr Bunt’s, to correct it. She would generally defer to Mr Bunt to deal with any issues regarding X’s conduct. It all depended, she said, on the situation.
There was a somewhat disjointed discussion of the interaction between her role and that of Mrs Charring. In short, she said that she would comply with any Orders of the Court and, as I understood her evidence, she would not seek to usurp the role of the “natural Motherhood” of Mrs Charring. Ms Y said that, in her household, she would do everything that a Mother would naturally do. She accepted that there was a legal and emotional difference between a person who is the biological Mother of a child and a step-Mother. She said that she understood this distinction.
Ms Y said that she accepted that X had a strong relationship with his Mother. She also acknowledged that if there was a change in his primary residence, the child would likely be upset for a period of time. She commented also that, with the plans for she and Mr Bunt to start a family, she hoped that X would be excited to have a new sibling. She said that she would ensure that all children in her household were treated equally, with any differences only depending on their individual needs.
Supplementary written submissions by the Independent Children’s Lawyer
The Independent Children’s Lawyer filed supplementary written submissions on 20th September 2019, which were considerably later than prescribed in the Orders. They were as follows (emphasis added):
1. The Independent Children’s Lawyer (ICL) provides these submissions in accordance with the Orders of Judge Neville dated 7 June 2019, and referred to in ‘Notation P’ of Orders dated 28 June 2019. These submissions are supplementary to the submissions filed by the ICL on 6 June 2019.
2. There was a ‘show cause’ hearing in this matter on 7 June 2019 in circumstances where (by earlier court Order) there was to be a change of residence in the event the mother did not return to the Canberra region to live by January 2019. Those orders were made following contravention proceedings in which the mother had been found to have failed to provide X for time with his father on numerous occasions in accordance with Orders.
The mother’s allegations that X has been physically and emotionally abused by the father
3. The mother made allegations that X had been kicked by his father during the 2018/2019 Christmas school holidays and had been returning from time with his father with bruises. She made other allegations of abuse. The allegations were unsubstantiated and not supported by evidence. The mother has a history in these proceedings of making other allegations of abuse by the father on X which have not been substantiated or supported by evidence. As set out by the Family Consultant Ms F (par 95 of her report), the mother has a long standing, implacable antipathy towards the father. It is submitted that the father’s account of events (denying that he has physically or emotionally abused X) should be preferred over the evidence of the mother.
Ms F’s concerns
4. In her May 2019 report (par 92 onwards) Ms F outlined a number of arguments against a change of residence for X. These included the unsettling impact of moving schools and changing residence, the untested nature of Mr Bunt and Ms Y’s ability to cope full time in the short and long term with a possibly very unsettled child, X’s own wish to remain in his mother’s care and the need not to disrupt X’s relationship with his half-sister.
5. In her evidence on the 7th of June 2019 Ms F confirmed that her reservations about the father’s ability to deal with any challenging behaviours that X may exhibit following a potential change in residence stemmed (at least in part) from abusive messages from the father she had been told about by the mother which are outlined at par 56 of the report. Ms F stated (par 89), that while the father presented himself as concerned caring Christian father, his text messages to the mother were highly derogatory and abusive and somewhat undermined his assertion that he would promote the mother’s role. Ultimately this led her to be concerned about his ability to cope with any (expected) challenging behaviours from X.
6. The father did not make any admissions in his affidavit material about the abusive text messages and failed to produce his mobile device at the hearing despite a request that he do so. However the mother had brought her mobile phone to the hearing and her evidence confirmed that the father had indeed sent the abusive text messages. The father admitted sending abusive messages when put to him but said they were out of extreme frustration given the mother’s behaviour. He seemed reluctant to concede under questioning that they were not appropriate, but did so in the end.
7. It is submitted that the father’s abusive text messages to the mother should be put into the context of the ongoing dispute around the mother’s non-compliance with Orders, and are not a strong basis in themselves to support a concern about the father’s ability to cope with an unsettled child’s challenging behaviours.
8. However when questioned, the father seemed unable to see past his frustration with the mother’s behaviour (around her non-compliance with orders and her continued unsubstantiated allegations about him). It is submitted that the court may find on the evidence that the father is likely to be dismissive of the mother into the future even if she were to raise valid, well-reasoned, evidence-based concerns or issues about X’s interests, to which the father might be oblivious.
9. To ameliorate any impact that this may have upon X, the court may wish to consider an Order requiring the parents to attend a parenting after separation course (again) or specific counselling designed to assist both parents deal with issues around communication in a separated family. Parental responsibility orders requiring the father to consider and answer any concerns put to him by the mother about X and to report to her in writing regularly about X may also be helpful.
Importance to X of his sibling relationship
10. In the witness box, Ms F clarified that her concern around possibly disrupting X’s relationship with his half-sister referenced the importance to children of sibling relationships generally, and that the sibling relationship between X and his sister was any more or less important than to any other children generally. It was said for the father’s case in evidence that he and Ms Y were planning children of their own.
X’s wishes
11. Ms F said in cross examination that a child X’s age could not understand all of the ramifications of change. It is submitted that would apply equally to remaining living primarily with his mother as well.
12. Obviously in the event that the Court makes an Order requiring X to live with his father, as it is against his wishes he is likely to display some negative emotions or behaviours surrounding this change. It is submitted that the Court may wish to make Orders whereby X is told about the change in a child focussed manner, for example with the presence of a Family Consultant. It could also be helpful for the father to have some counselling for X lined up in Canberra to assist him in the transition.
Impact on X of change of residence and schools
13. In the event that an Order is made for X to live with his father, it will obviously involve a change of locations, and of his school. This potentially could be difficult for X during the transition period.
14. It is submitted that any such difficult needs to be weighed against the long term impact on X of remaining in the primary care of the mother, including the likelihood that she will continue to minimise the role his father plays in his life.
Conclusion
15. The evidence given in the ‘show cause’ hearing on 7 June 2019 does not change the ultimate view of the ICL provided in submissions dated 6 June 2019.
16. I note the comments of Judge Neville in his Reasons for Judgment in this matter dated 21 December 2016 – “although the mother has had multiple chances and warnings to similar effect, this can and must be her very last chance”. These reasons were provided close to three years ago, and very sadly for X, the mother has continued her lack of compliance with Orders.
17. Since the December 2016 judgment was made, countless documents and Court applications have been made. This is in no-one’s interests, let alone X’s best interests. The ongoing litigation has to stop.
18. In the ICL’s submission, an Order requiring X to live with his father (a ‘change of residence’) is one that ‘would be least likely to lead to the institution of further proceedings in relation to the child’ (per s60CC(3)(l)) and would be in X’s best interests.
19. Lastly, I note Ms F’s evidence under cross examination is that if an order was made changing X’s residence to live with his father, she would still recommend time with the ‘other parent’ (in this case, the mother) once a month only instead of once a fortnight during school terms. The Court may wish to consider this evidence when making Orders for ‘time with’ each of X’s parents.
Outline of principle
In AMS v AIF, Kirby J simply observed that there is, in parenting cases that involve relocation, a “large element of judgment, discretion and intuition.”[29] In my respectful view, his Honour’s comments have wider application to all parenting matters.
[29] AMS v AIF (1999) 199 CLR 160 at p.211 [150].
In the same case, Hayne J said (internal citations omitted):[30]
[204] The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order - usually an order that says yes or no to some application. "[A] complicated mass of human experience has to be reduced to the simplest possible terms." Because the problems are human problems, because they are as varied and complicated as they are, the legislature speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning.
[205] Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in future but also of what will be "best" for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.
[30] AMS v AIF (1999) 199 CLR 160 at p.228 [204] & [205]. Of course, the comments by both Kirby & Hayne JJ are in a legislative context different to that which operates today. Accepting that qualification, respectfully, their Honour’s comments, in my view, are nonetheless and remain important.
In a number of respects, the concerns and observations that I have noted reflect the varied interplay of facts, circumstances, legal principle and discretion, which are the warp and woof of all trials. Such matters were more elegantly put by the High Court in the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy, in that Court’s consideration of appellate intervention. Their Honours said (internal citations omitted):[31]
On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance.” On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
[31] Fox v Percy (2003) 214 CLR 118 at pp.125-126 [23]. See also the extensive discussion by McHugh J in the same case at [65] – [93].
In my view, the comments in Fox v Percy have very particular import in the current matter for reasons given earlier, namely that I have had the singular opportunity and great advantage to observe the parties closely over many years, and to discuss with them repeatedly the ongoing and indeed persistent parenting issues concerning X, as well as canvassing the same matters with the experts who have given evidence (in writing and orally) over the years.
It is as well also to set out now the jurisprudential framework or scaffold in Part VII of the Act to which the Court must have proper regard.
In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Family Law Act 1975 (Cth) (“the Act”). Respectfully and gratefully, I adopt her Honour’s comments. Brown J said:[32]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[32] (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about the term “meaningful”, as used in Part VII of the Act, in the context of what is comprehended by a “meaningful relationship.” At [20] through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[33]
[33] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks, as did the Full Court in Vontek v Vontek [2017] FamCAFC 28 at [26].
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Consideration and disposition
In the light of the evidence outlined above, and by reference to the relevant statutory “considerations” recorded, I note the following.[34]
[34] I should be taken to follow sequentially the “considerations” in s.60CC(3) of the Act without necessarily naming each of them.
Given X’s age, the views he has expressed, both recently and over a period of time, indicates that significant caution should be exercised by the Court in placing too much weight on them. Further, at different times, he has expressed quite different “views”, which has led to some comment by experts that his views have been conditioned, to a degree, on what he perceives or understands each parent wishes to hear.
This said, as recorded earlier in these reasons, in her most recent Report, Ms F noted (at par.61) that “X did not seem too upset about the idea of change.” In my view, this observation by Ms F is likely to be a more accurate depiction of X’s more considered position, especially since he has been in the middle of such a heated contest between his parents for so long. This is to say that an almost studied (and protective) indifference seems to be an understandable position of the child in all the circumstances. This is also to note that there is no overt hostility by X towards either parent, and all the evidence points to him engaging well in both households – for understandably different reasons in each.
Some of the comments just made are relevant to the matters to be considered under sub-paragraph (b) of s.60CC(3). In my view, the evidence clearly points to X having a good relationship with both of his parents, accepting that what each parent “offers” him is different. X also clearly has a close relationship with his young sister, C. It is reasonable to assume that if and when (as is planned soon) any siblings arrive in the Bunt household, he will similarly have a close relationship with them.
The “considerations” referred to in s.60CC(3)(c), (ca), (f) and (i) are, in this instance, something of mirrors of similar matters. I have earlier recounted the never-ending communication difficulties between the parents, which have impacted very significantly on each of them – especially the Father – participating in all relevant aspects of decision-making, and or engaging or undertaking their respective parenting obligations. Moreover, while the Father very fairly has no complaints about the Mother’s day-to-day parenting and care of X, understandably he regularly chides her for keeping the Father either uninformed, and or poorly informed, about a range of matters regarding X’s care and well-being. Instances have been given earlier in these reasons.
In my view, there is a not insignificant issue with the Mother’s capacity to provide for X’s emotional and psychological needs, especially as he gets older. This was adverted to by Dr D relatively early in the piece. It relates particularly to the Mother’s either deliberate, contrived or inadvertent capacity to thwart the child’s time with his Father, and otherwise (as the saying goes) “to throw shade” on the Father and his Wife, Ms Y. The Mother is regularly critical of anything proposed by the Father (or his Wife) and/or constantly suspicious, oppositional and obstructionist of any attempt by the Father to spend more time with X. Even so-called “regular time” between X and his Father as ordered by this Court is problematic. Indeed, after so many years of constant contest, I am somewhat amazed by the Father’s persistence and perseverance in seeking what he perceives and understands to be in X’s best interests. Very concerningly, in my view the Mother has developed a strategy, and almost a life-style (or at least a way of thinking), about the Father (and his Wife) whereby she is relatively convincing in her narrative of her objections to the Father and X spending more time together. I should say that any assessment of the Mother’s “narrative” must be subject to the consistently, invariably, adverse assessments of the Mother and her capacity to promote X’s time with the Father.
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.
The history of the matter strongly indicates that the Mother will take every opportunity to minimise the role and importance of Mr Bunt in X’s life and do everything she can to thwart it. I do not have the same concerns about the Father. His diligence and persistence, even in the face of each of the Mother’s moves that have made X’s time with him progressively more problematic, strongly indicate that his capacity to encourage and make proper and attentive arrangements for X to spend time with his Mother and his maternal family will occur.
I should also caution (not for the first time) the Mother that, if anything is done to hinder X moving to his Father’s primary care, she could quickly run the risk of having X’s time with her limited, supervised or, if not (in a worse case situation) stopped. As has been the case for many years, the ball is in the Mother’s court to make arrangements that are in X’s best interests work. He needs both of his parents. He does not need them fighting as they have done for approximately the last 8 years.
In the first detailed Report in this matter, as long ago as 2013, Dr D noted (at par.178) her concern about the Mother stating that X did not need a relationship with his Father for the concerning reasons there outlined. Dr D noted too, at par.156, how X (then only 3 years old) sought, among other things, proximity to his Father. Dr D further recorded the positive remarks of the Father about the Mother and her general parenting, but how the Mother remained steadfastly negative about the Father’s parenting skills. In my view, the insightful and detailed assessment made by Dr D in 2013 still rings, and remains generally, true. In only various forms of degree do the same concerns appear in the three later Reports.
Otherwise, I accept the ICL’s submissions. I should note that there have, in recent times, been two different ICLs in the proceeding. Both of them are highly experienced and from the Legal Aid office. A second ICL became necessary when the first one became unwell and had to take a period of leave. I mention this because it is instructive that two different, highly experienced ICLs have come to the same conclusion, namely that a change in primary residence is in X’s best interests and that he should (a) live primarily with his Father, and (b) spend time, one weekend per month with his Mother. In my view, these Orders are not only in X’s best interests but also they are the least likely to lead to further litigation. The opposite is also true: if arrangements remain the same, and the Court’s many warnings over the years are not acted upon, the Mother will continue to inhibit X’s time with his Father, while the Father will persist in his various and constant Applications, as he has done for years.
X shall spend the first half of the upcoming Christmas/New Year school holidays with his Mother, and the second half with his Father, following which he shall commence school in the ACT.
Finally, although the Father proposes there be an Order for equal shared parental responsibility, the years of obstruction and difficulty, and completely fraught communication between the parties, in my clear view, strongly militates against such an Order. In granting the Father sole parental responsibility for major long-term issues, he is to consult with and keep the Mother properly informed of any such matters, but otherwise, the final decision regarding such matters (e.g. school, religion, health and the like) shall ultimately be his. Such an Order obviates the need for the Court to consider s.65DAA.
X shall be able to telephone, or otherwise communicate with, his Mother, in the absence of any agreement, a minimum of 3 times per week and such other time as he wishes.
As Ms F said, at par.104 of her 2016 Report:
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….
As indicated many times, the Mother has had numerous opportunities to change both her views of the Father, and to facilitate X’s time with his Father.
As the years have gone by, in my view, all the risks associated with X residing with his Mother have remained. The Mother has remained steadfastly complacent with their existence, and has made little or no effort to mitigate or ameliorate those risks. X risks being “infected” with the Mother’s complete and unabated antipathy towards his Father. The time has long gone for the Court to act to prevent this occurring. I am confident the Father will ensure that X continues to have a good and close relationship with his Mother (and those in her household). He will also have, for the first time, a more complete and hopefully unimpeded relationship with his Father and those in that household. New horizons now beckon him. It is for both of his parents not to cloud them with the darkness that has inhibited their relationships in the past.
In addition to the Orders proposed generally by the ICL, notably and primarily for a change in X’s primary residence to that of his Father, and thereafter spending time with his Mother one weekend per month, in order to ensure that each party starts the new parenting regime with a “clean slate” as it were, I will take it that, absent any Application being filed within 14 days of the date of these Orders to confirm any existing claim, all outstanding Applications (including contraventions) will be withdrawn.
I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 18 December 2019
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