Budwayne and Beta

[2009] FamCA 32

FAMILY COURT OF AUSTRALIA

BUDWAYNE & BETA [2009] FamCA 32

FAMILY LAW – CHILDREN – Overseas Travel

Family Law Act 1975 (Cth)

APPLICANT: Mr Budwayne

RESPONDENT: Ms Beta

FILE NUMBER: MLC 9338 of 2008

DATE DELIVERED: 5 January 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr N. James

SOLICITOR FOR THE APPLICANT: Zervos Lawyers

COUNSEL FOR THE RESPONDENT: Litigant in person

Orders

1. That the orders made by the Family Court of Australia at Melbourne on 14 October 2008 be varied with respect to the Christmas 2008/January 2009 period to provide that the child ... born … October 1997 (the child) spend time with the husband in the United Kingdom from 9 January 2009 until 31 January 2009.

2. For the purposes of paragraph 1 hereof:

   (a)      the wife shall accompany the child on the following flight:

   Flight No: …

   Departs Melbourne 9 January 2009

   and deliver the child to the husband at Heathrow Airport London;

   (b)      the husband shall accompany the child on the following flight:

   Flight No: …

   Departs London 29 January 2009

   and deliver the child to the wife at Melbourne Airport;

   (c)that by 5.00pm on 7 January 2009, the wife purchase the return ticket air travel costs of the child, the husband and the wife referred to in paragraphs 2(a) and 2(b) herein.

3. That each party have liberty to apply on an urgent basis on Thursday 8 January 2009 in relation to the implementation of these orders.

4. The wife pay the husband’s costs of and incidental to this application fixed in the sum of $2750 with a stay of such payment until 5 May 2009.

5. The husband’s application filed 31 December 2008 be otherwise dismissed.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That the reasons for judgment be transcribed and be made available to the parties.

3. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Budwayne & Budwayne is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 9338 of 2008

MR BUDWAYNE

Applicant

And

MS BETA

Respondent

REASONS FOR JUDGMENT

1. This is an application that has come into the duty list, it having been brought on as a matter of urgency and time was abridged by a registrar.  The application was filed by the husband on 31 December 2008 through his solicitors.  The father resides in England.

2. Orders were made in September 2007 in the English courts which importantly provided for the father to spend time with the child of the relationship, who was born in October 1997.  The importance of the order is that it is clear that the mother would not have probably been able to come to Australia with the child without an agreement that there were mirror orders in Australia.  It took the parties the best part of a year to get those mirror orders made.

3. Notwithstanding the orders were made in October, it seems that there have been ongoing disputes which on one view are about the financial capacity of the parties to make the orders work.  I only have the evidence of the father about the attempts made through the solicitor to have those orders implemented, and the mother’s statement from the bar table that she has been endeavouring to negotiate with the father to change things, predominantly because of the fact that she has had to work during the summer period of time.  She said from the bar table that it was something that she anticipated when the orders were made but a whole year has now gone by effectively without anything happening.  She also says that she was given advice by a number of lawyers about all of this and told to negotiate.  Those negotiations have come to naught.  It is time for the orders to be implemented. 

4. The parties today have both endeavoured to find out the costs of the implementation of the orders.  Paragraph 5 of the orders made in this court provides that the mother pay the costs of the child’s travel to the United Kingdom in accordance with a schedule attached to those orders and that schedule actually provides that for the summer of 2008, the child is to spend three weeks with his father, subject to school term times with the contacts to include the travel period.  The orders under that schedule provided for the mother to bring the child to the United Kingdom and return him to Australia or to agree to make arrangements with family and friends.

5. Notwithstanding all of the negotiations, it has come to this.  As I have indicated to the parties, it is not my function to go behind the orders.  The orders on their face are clear, concise and simple.  It is obvious that there is a problem but it is not the function of the court to tinker with orders without a proper application being made

6. In this case it is clear that the orders were intended for the child to spend time with his father in the United Kingdom and the mirror orders made in October make it clear how that was to operate. In those circumstances, I propose to enforce the orders. 

7. The unusual feature of this case is that the father has agreed to vary the order slightly to enable it to be implemented, albeit that that may mean that he does not get exactly what was intended under the orders.  The only way that the orders can be properly implemented is if the mother flies to London and then returns, leaving the child with his father and that the father return the child at the time appointed under the orders.  That return flight obviously will have to be at the mother's expense because that was what was consented to and provided in the court order.

8. In the circumstances, notwithstanding there may be some difficulties in the implementation of this order, I propose to order that the times be regulated by the flights and that in the event that there is a problem about the payment of those flights, the matter can be brought back on by notice on Thursday morning of this week and any party who has not complied with these orders does so at their peril.

9. That gives rise to the question of an application for costs. The father through his lawyers argues that he has incurred legal fees of $2750 and has asked for those costs on the basis that they can be paid with a stay at my discretion. That no doubt makes the task of the mother just that little bit harder. However, as I have explained, section 117 of the Family Law Act provides that in all cases, each party pays their own costs, except where the court feels that there is a justification for the court departing from that rule.

10. The provisions of section 117 also provide that in the event that there is a justification for departing from the rule, the court is obliged to take into account the matters in section 117(2A). That particular provision requires me to take into account a number of factors. Before doing so, however, I am satisfied that this is a case where the court is justified from departing from the rule on the basis that a number of months have gone by during which there were negotiations going on and it was clear that had it not been brought to a head, then the time provided under the orders would not have been implemented as it was intended in the first place.

11. The matters that I am obliged to take into account therefore are the financial circumstances of each of the parties to the proceedings. The father apparently is currently unemployed in the United Kingdom but hopeful of getting a job, and at the moment is living on his savings.  The mother has told me that she is earning $50,000 a year as an administration person at a Club and after she spends half of her net income on rent, there is not a lot left over.

12. I am obliged to take into account whether any party is in receipt of legal aid and I am not told that any person is in such a position. 

13. The next consideration is the conduct of the parties in relation to the proceedings.  I only have the documents here provided by the father.  I am obliged to take into account whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous court orders.  I am quite satisfied that had the application not been made, then a breach of the order would have followed and there would have been other proceedings.  More importantly, the father may not have seen the child in accordance with the orders.  I say that because of the fact that I have read material indicating that the mother offered the father time with the child in Australia but that was not what the order originally intended.

14. I am also obliged to take into account whether any party to the proceedings has been wholly unsuccessful.  In this case, it is quite clear that the mother has not been successful in respect of seeking to effectively change what the order intended.

15. I have taken into account also the various correspondence that the parties had between each other but all of that indicates that, as I said, the orders would not have been implemented had the step not been taken by the father.

I certify that the preceding Seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  15 January 2009