Bunning and Bunning (No.3) - [2007] FMCAfam 979

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BUNNING & BUNNING (No.3)

[2007] FMCAfam 979

FAMILY LAW – Seeking variation of orders for school holidays arrangements – permission for child to travel overseas with the father – need for the parties to deal with the high level of conflict that exists between them – need to adopt toward a realistic approach to circumstances.

Family Law Act1975

Rice v Asplund (1978) 6 FLR 570

Applicant:

MR BUNNING

Respondent:

MS BUNNING

File number:

BRC 68 of 2007

Judgment of:

Burnett FM

Hearing date:

14 September 2007

Date of last submission:

14 September 2007

Delivered at:

Brisbane

Delivered on:

14 September 2007

REPRESENTATION

Solicitors for the Applicant:

Evans & Company

Solicitors for the Respondent:

SJP Law

ORDERS

That the application be dismissed.

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).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 68 of 2007

MR BUNNING

Applicant

And

MS BUNNING

Respondent

REASONS FOR JUDGMENT

This is the application by a father in respect of the child to his marriage with the respondent mother, Ms Bunning; the child is [X] born in 1999.
The matter came on before me for trial earlier this year and I made orders on 18 July 2007 which orders were parenting orders as defined under the Act.
The orders dealt with all matters which would be expected to be dealt with in terms of parenting orders particularly concerning arrangements to be enjoyed by the child with his respective parents during the course of school holidays.
The application is made by the father today to seek a variation of the orders for one purpose, namely, for the forthcoming school holidays, for permission for the child [X] to travel with him to the Coral Sea for the purposes of a holiday during the period of 18 to 26 September 2007.
It should be stated that by reason of the operation of the orders that I made in July this year that week would include in part the first week of the gazetted school holidays which in accordance with the orders would see the child [X] spend time with his mother. The proposal is, of course, that the contact commence on the 18^th which is a Tuesday and proceed through until the following Tuesday, a period of seven days. So in effect, what the father seeks today is for this occasion only an exchange of contact weeks and in part permission to take the child from the mother during a time when the child would ordinarily be living with the mother during the course of the last week of school.
If I can deal with what I see as the legal issue first before I make any observations about the facts: it is well established now since the decision of Rice v Asplund (1978) 6 FLR 570, that a Court should not lightly entertain an application to reverse an earlier parenting order and in order to do so it would need to be satisfied by the applicant that there was some changed circumstance which would justify such a serious step, some new factor arising or at any rate some factor which was not disclosed at the previous hearing which would have been material.
Once the Court is satisfied that there is a new factor or a significant change in circumstances then the Court is then empowered to review the parenting order in the ordinary way.
The threshold point was made by Mr Shera who appears for the respondent mother and I think in this case it is a valid point to be made. These orders were made in July 2007 after a trial that went for, if my memory serves me correctly, about four days. There was a considerable body of evidence called and in particular evidence from a report writer, Ms Valma Johnson, concerning the various personalities involved in this dispute.
One of the hallmark issues in this case concerned the personality of the father. In summary, Ms Johnson opined that he was a controlling individual and that he would seek to assert control at every opportunity and that that was an issue in terms of the human dynamics in this family and that it was in those circumstances necessary, particularly because the respondent mother was not so overt and forthcoming in her personality, it was in those circumstances necessary to fashion orders that balanced the power and balance between them to ensure that [X] was not overborne in a manner which Ms Johnson saw from her observations of both the father, mother and the child.
It was with those particular matters in mind that the recommendations were made by Ms Johnson and the orders in turn were fashioned. One of the other orders that was made by me at the time was an order that each of the parties would undertake a Triple P parenting program or course. I did not direct at the time that the parties attend such a course together and perhaps that was an error on my part because despite me being informed today that both parties have undertaken such a program, there are still difficulties between these parties in relation to this sort of application. In any event no new issue arises.
Aside from the Rice v Asplund point there, of course, is also now a new legal dynamic which arose from 1 July this year. That is provided for in s.65F which now provides as a general requirement that subject to sub-s.3 a Court must not make a parenting order in relation to a child unless the parties to the proceedings have attended family counselling to discuss the matter to which the proceedings relate. And there is then later provision in the Act for the production of a certificate which is provided for in s.60I which provides for the attending of family dispute resolution before applying for a Part VII order.
I take the view that because this is an application made for a parenting order after a parenting order has already been made that this, in fact, constitutes, in effect, a fresh application albeit an application for a variation of an existing order and accordingly there is a requirement to conform with those provisions of the Act.
Before I formally make an order dismissing the application I just want to make some general observations about the facts of this case. This case illustrates the difficulty which I think was identified by Ms Johnson or anticipated by Ms Johnson in her report and I think highlights further the need for the parties to deal with the high level of conflict that exists between them and to try and adopt toward each other as well as toward the child a realistic approach to circumstances.
Let me say, Ms Bunning, you have won on a technical point but if I had decided the matter on the facts and on its merits I would have allowed the application. I think that what the father seeks to do is quite reasonable. I am not going to revisit it because I think the law says I should not revisit my earlier orders, but I do think that this is going to continue on and on and on for the next 10 years. Mr Bunning is going to have opportunities to go away and you are going to have opportunities to do things and you people have to start talking to each other because you cannot keep coming back to the Courts to ask the Court to interfere on what are essentially operational matters.
The Court cannot live in your household and cannot run your lives. We resolve matters by reference to legal principles, having decided the facts but frankly, I think Mr Bunning's proposition was a reasonable proposition. In a nutshell, I do not think the Montessori walkathon for a child in grade 3 is a make or break event. There will always be occasions in life, they happen in functional households and dysfunctional households where there are competing interests. The children want to do different things, the parents want to do different things and accommodation has to be found.
It does not matter that your households are dysfunctional in the sense that you live in two separate households. Those issues arise in every household. The fact is that there will be occasions when you will want to go away and you will be asking for an indulgence from Mr Bunning. Again, the approach that parties take at this time does not establish a very good foundation for further negotiation when concessions are going to be sought like for like.
The fact that you have got friends coming up for a week is not, as I see it, overly material because the child could be home potentially by Tuesday night to have Wednesday, Thursday, Friday and Saturday with your friends. I do not think that there was anything of any great moment there.
As I say, I have resolved the case on a legal point and not on any other basis but I just urge you people to please talk to each other and try and develop some sort of working relationship. You have a long way to go. You have a lot to offer your son and you need to be more child-focused in your approach.
Now Ms Bunning you are empowered to a large extent by the orders of the Court and I accepted the recommendations of Ms Johnson to empower you so you are expected, and the evidence would suggest, you will act in a very child-focused manner. I think you need sometimes to think about some of these issues and put aside your past feelings toward Mr Bunning and reflect upon what is a good outcome.
I think there would be nothing better for an 8 year old kid to be able to go back to school at the commencement of fourth term and tell his mates that he has been fishing on the Coral Reef. I think there would be nothing better. I think there would not be an 8 year old kid that I know - I do not know many any more but I used to know lots of them when my kids were that age - but I could not imagine any 8 year old kid who would not have wanted to go fishing if he had that opportunity to go fishing in the Coral Sea; get on a sea plane and fly out to the Coral Sea. One does not require much imagination to see the excitement that that opportunity presents.
Whether it be your contact week or your contact weekend or otherwise you have got to think about these things. Think about how he would see it. Now it is all very fine to say Montessori is fantastic but Montessori might come and go. He will have forgotten the Montessori walkathon, but when he is 21 years of age or 25 or 30 or 45, he will always remember hopping on that sea plane at Hamilton Island and flying out to the Coral Sea. He will not remember much about the walkathon because they are not the sorts of events that fashion the minds of young children.
In any event, as I say, you win, because the law is with you but I do think that you might want to think in terms of some of the more practical issues because we are dealing with a child's life here and it does not just stop and finish with his holidays, it goes on for ever.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Burnett FM

Associate: Beverley Schmidt

Date: 18 December 2007