Bunning and Bunning

[2009] FamCA 977

FAMILY COURT OF AUSTRALIA

BUNNING & BUNNING [2009] FamCA 977

FAMILY LAW – CHILDREN – Overseas travel – Existing orders defining terms – Father seeking variation – High conflict – Pre-existing rights and obligations identified by orders – Father’s application without merit and dismissed – Costs against father

APPLICANT: Mr Bunning

RESPONDENT: Ms Bunning

INDEPENDENT CHILDREN’S LAWYER: Jennifer McArdle

FILE NUMBER: BRC 68 of 2007

DATE DELIVERED: 26 June 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 26 June 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Cooper, Barry & Nilsson

SOLICITOR FOR THE RESPONDENT: Ms Stewart, DA Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McArdle, Legal Aid Queensland

Orders

1. That the Husband’s Application in a Case filed on 19 June 2009 be dismissed.

2. That the Husband meet the costs of the Wife and the Independent Children’s Lawyer of and incidental to this application, such costs as agreed or failing agreement as taxed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC68 of 2007

MR BUNNING

Applicant

And

MS BUNNING

Respondent

REASONS FOR JUDGMENT

EX PARTE

1. In this matter, the father brings an application for an extradited hearing in relation to seeking orders for permission to travel with the child of the marriage, X, who was born in August 1999.  The need for that application arises as a consequence of orders made by Burnett FM on 18 July 2007.

2. Amongst the orders made by the Federal Magistrate was a series of orders in relation to overseas travel, which included, firstly, that any such overseas travel should be conditional upon the parent wishing to take the child overseas first obtaining written agreement of the other parent; secondly, providing the other parent with one month's notice of their intention to travel; thirdly, providing the other parent with a copy of the pre-paid ticket and an itinerary and, further, that such overseas travel should not exceed four weeks in each year and two occasions each year.  It was further ordered that the travelling parent shall ensure that the child telephones the other parent at least three times a week.

3. It is conceded on behalf of the father that the conditions imposed by Burnett FM have not been met in the circumstances leading to this application.  In particular, the first opportunity for the mother to have notice of this proposed travel did not arise until 5 June and, at that time, the father was proposing that he travel overseas with the child on 27 June.  What compounds the difficulties in this case is the evidence of the mother that she did not, in fact, receive that communication, or the one which followed it on 10 June, until some time later. 

4. In any event, the child has already been overseas with his father on two prior occasions during the course of this year and the proposed duration of this overseas trip would be to see the child return to Australia on the 14th of July, with a suggestion that he could resume schooling on the 15th.  The purpose of this trip, in the main, is to provide the child the opportunity to spend time with his paternal grandparents in the United States.  I accept that the child has a good relationship with his paternal grandparents.  I understand the child travelled to the United States with the father in the middle of last year to spend time with his grandparents and that the grandparents travelled to Australia in September of last year and spent time with the child. 

5. The mother informs the Court that the child communicates with the paternal grandparents by way of electronic video equipment.  The mother says that, as soon as she became aware of this proposal, she informed the husband's solicitors that she was not agreeable to it.  There is an issue on the material about the extent of any explanation.  The mother says she explained her reasons.  The solicitor for the father said that she gave no reasons. 

6. In any event, I am satisfied that the mother has had limited opportunity to state her case.  The matter was before the Court earlier this week when her Honour O'Reilly J determined that the mother had not been properly served with the application and had had very little opportunity to respond.  She has now provided an affidavit which assists in understanding the background to the matter. 

7. It is common ground between each of the parties that the litigation in this matter has been protracted and very damaging to the parties and to their child.  It is clear on the face of the orders made by Burnett FM that he saw the need to provide extensive definition as to the rights and obligations of the parties.  His orders cover some seven pages and some 43 paragraphs of minute detail about the rights and obligations of the parties, and the question of overseas travel was specifically addressed in quite some detail. 

8. In her affidavit, the mother sets out the history of overseas travel since the making of those orders and it is pointed out that the mother has accommodated some four trips overseas in a period of 18 months, including, it seems, some holiday arrangements which were outside the terms of the orders.  As a consequence, I take a broad overview that it could not be contended that the mother has adopted some entirely unreasonable approach on this and other occasions.  In the material, the mother also points to the fact that the father has sought overseas holiday contact outside the terms of the orders and, when she has not been agreeable, this has resulted in the father bringing earlier applications.

9. I have also had placed before me the report of Ms J.  I am informed, and it is appropriate that I am informed, from the Bar table that the father does not accept the assessments of Ms J because the father and his legal representatives were only presented with that as part of the mother's case this morning.  I accept that the father has serious reservations about the assessments and conclusions of Ms J.  Nevertheless, it remains, at least on a prima facie basis, some effort at an objective and expert assessment of the dynamics in this case.  During the course of that report, Ms J highlights the almost never ending levels of conflict.  Now, of course, neither Ms J nor this Court is here suggesting that all of that conflict is the fault of the father and that matter, no doubt, has been examined in the past and will be examined in future proceedings.  Nevertheless, what emerges from Ms J’s report, regardless of questions of apportioning blame, is the fact that very high levels of conflict continue.

10. That conflict is taking a toll, not only upon the parties but, more importantly, upon their child, X.  What Ms J makes clear to the parties and to the Court is that every effort must be made as a question of high priority to bring that conflict to an end.  She makes a recommendation that, if it is to continue, then perhaps the best and only way to minimise that conflict which is affecting the child adversely is to look at strict compliance with existing orders.  What Ms J advances in that regard is not a controversial proposition.  It is very clear from the tone and content of the orders made by Burnett FM that he perceived the need for great definition to provide the parties, and indirectly their son, with a level of stability and certainty.  Until and unless those orders are varied or discharged, I take the view that they provide a vehicle for certainty for these parties and define the parameters under which they can operate.  Federal Magistrate Burnett made it very clear to the parties that their travel was conditional upon prescribed events, and almost every one of the prescriptions set out by Burnett FM were breached by the father leading up to this application.

11. Contrary to the submissions made on behalf of the father, it is not up to the mother to justify why she asks for compliance with Court orders.  There is no onus on her to justify Burnett FM's determinations about this matter.  Rather, the onus would have been upon the father to place before this Court compelling, cogent reasons why, yet again, there should be a departure from Burnett FM's orders.  The onus was upon the father to advance compelling reasons why this particular trip, outside the terms of the orders, was in the child's best interests.

12. This is not a case of urgency, as has been submitted.  Happily, the grandparents are well and healthy.  There is no imperative that the child needs to see them now.  He is maintaining good relations with them by seeing them from time to time, including twice in the last 13 months for extended periods.  He communicates with them regularly, apparently, by the many methods open.  In my view, to suggest that the onus is upon the mother to justify the orders misconstrues entirely where the obligations lie in this case, and it was not upon the mother to demonstrate to this Court why it is not in the child's best interests to have the orders complied with.

13. Sadly, this is a case where uncertainty breeds anxiety.  The orders were designed to address that very fact and, in my view, the stand taken by the mother is entirely appropriate.

14. For those reasons and for the reasons canvassed during the course of submissions, I propose to dismiss the father's application. 

    RECORDED  :  NOT TRANSCRIBED

15. For the reasons I have outlined in my judgment, and again in the course of submissions, I think it is not appropriate that the mother or the taxpayer should be required to meet the costs of this exercise.  I note the father's stated income.  I note in his evidence he otherwise retains silk for his appearances from time to time and that he was proposing an overseas trip.  Notwithstanding the stated level of his income, it seems one way or another the father has available to him resources of significance and, in my view, if it comes to the taxpayer, or the mother, or the father bearing the hardship of his failed application, it is much more appropriate that it be the father.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

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