Kendling and Kendling (No. 2)

[2007] FamCA 1206

FAMILY COURT OF AUSTRALIA

KENDLING & KENDLING (NO. 2) [2007] FamCA 1206

FAMILY LAW – Children – Travel outside Australia

Family Law Act 1975 (Cth)

Kuebler (1978) FLC 90-434

APPLICANT: MR KENDLING

RESPONDENT: MRS KENDLING

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: MR O’DOWD

FILE NUMBER: SYF 2903 of 2003

DATE DELIVERED: 24 SEPTEMBER 2007

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE BY TELEPHONE LINK

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 24 SEPTEMBER 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR BARAN

SOLICITOR FOR THE APPLICANT: DORROUGH SMART

COUNSEL FOR THE RESPONDENT: MR RICHARDSON

SOLICITOR FOR THE RESPONDENT: MICHAEL CONLEY

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER LEGAL AID NSW

Orders

1. That the application of the husband dated 20 September 2007 and the response of the wife filed in respect thereof be dismissed.

2. That the costs of the wife and the Independent Children’s Lawyer be reserved to be determined upon the conclusion of the proceedings in respect of the children.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Cronin delivered this day will for all publication and reporting purposes be referred to as Kendling & Kendling.

FAMILY COURT OF AUSTRALIA AT SYDNEY (HEARD BY TELEPHONE LINK TO MELBOURNE)

FILE NUMBER: SYF2903 of 2003

MR KENDLING

Applicant

And

MRS KENDLING

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is the outcome of an urgent application brought by the husband.  The husband seeks to suspend injunctions in relation to the children David Kendling born … September 1996 and Marc Kendling born … January 1999 out of the Commonwealth of Australia for the purposes of international travel.  In reality, the husband wishes to take the children on a short holiday overseas to Europe.

2. The children have travelled previously and there have been two specific orders which were defended and upon which reasons for judgment were given in relation to similar travel.

3. The matter is complicated by virtue of the fact that the husband has very recently changed lawyers and additionally, there were proceedings only days ago before O’Ryan J in relation to financial matters.  I am told that his Honour determined that he did not have sufficient time to hear what now appears to have been an oral application for such travel and hence, by telephone communication and emails and facsimile transmissions, the matter was brought before me on an urgent basis this morning.  The urgency is the fact that the husband had organised for the overseas trip to commence tomorrow Tuesday 25 September 2007. 

4. The material in support of the husband’s application is set out in an affidavit that was filed in court on 19 September 2007.  Mr Baran of counsel read paragraphs 1 to 8 of that affidavit.  In essence, it presents a fait accompli in respect of the travel.

5. Mr Richardson of Senior Counsel representing the wife relied upon a very comprehensive affidavit that was sworn on 21 September 2007 and faxed to the court in Melbourne on that day. 

6. Mr O’Dowd is the Independent Children’s Lawyer.  He conceded that he had a very limited role in the proceedings because he was not notified until Thursday 20 September 2007.  In so far as the proceedings had been before O’Ryan J and the issue was or was not discussed and an oral application made, Mr O’Dowd had been excused from those proceedings because of the fact that they were strictly financial matters.  Notwithstanding that, Mr O’Dowd has been the Independent Children’s Lawyer all of the way through these proceedings. 

7. By facsimile transmission on the morning of 24 September 2007, my chambers received a letter attached to which was a proposed itinerary of the husband.  Mr O’Dowd did not have a copy of that itinerary.  Whilst it may have been faxed to the offices of Mr O’Dowd, he advised me that he had told the parties on last Friday that he would not be in his Sydney office but rather in Parramatta.  Accordingly, it was pointless to send any material to him at 7.30 on the Monday morning.

8. Because of the fact that similar applications had been made before and had resulted in orders permitting the children to leave the Commonwealth of Australia, I turned to Mr Richardson first to indicate why the wife was opposing this application.  Least there be any misunderstanding, she had opposed the two previous applications and the Court had granted the husband’s travel plans.

9. Mr Richardson’s position on behalf of the wife was that there were proceedings before Justice O’Ryan in which the husband was seeking to discharge injunctions in relation to financial matters.  Ironically, having regard to the fact that there was an injunctive order relating to the children leaving the Commonwealth, it struck me as rather unusual that he did not also make an application to remove that.  Mr Richardson’s argument was that O’Ryan J had reserved judgment in respect of the injunctions and accordingly, to make an application of this nature was an abuse of process.  Mr Baran for the husband argued that the husband was the subject of a raft of injunctions and that he on behalf of the husband made an oral application before Justice O’Ryan in the running of those matters.  Justice O’Ryan apparently indicated that he did not have time to hear the matter.  Mr Baran said that the issue of the husband’s travel was never the subject of any submission and the debate was limited to the monies transaction.

10. Whilst it would trouble me if O’Ryan J in the course of his deliberations was contemplating the question of the husband being able to travel out of Australia, I accept what Mr Baran says that it was not the fundamental issue.  Accordingly, even if I permitted the husband to travel with the children, the other injunctions which are currently be contemplated by O’Ryan J would remain in place.  Accordingly I do not see the matter as an abuse of process.

11. Mr Richardson argued that in each of the previous defended hearings, the question of security had been not only a contentious issue but one in which the Court had made specific orders.  I was referred to the decision of Cohen J on 13 February 2007.  The problem in this case however is not so much whether there ought be security or not but rather the opportunity for the wife to consider whatever proposal the husband might have and then to examine what sort of security could be offered.  That is particularly important in an environment where O’Ryan J is considering the tying up of assets which are currently the subject of an injunction.  It troubles me that the husband who had known of the security issue on each previous occasion did not make any reference to it in his application or affidavit material.  That is particularly so having regard to the fact that the subject was still contentious as late as February 2007.  It is the lateness of that issue that I am troubled about. 

12. Mr Richardson pointed out that part of the argument being dealt with by O’Ryan J is the fact that the wife was told one thing about what was happening with a significant sum of money and yet the husband did something different.  O’Ryan J will deal with that issue no doubt but it is of concern to me that the parties cannot even agree on an issue as fundamental as that.  That is important in this case because in the substantive proceedings which are part-heard before me relating to parenting orders, the issue of communication between the parties including on matters such as international travel was highly contentious.  This time in the itinerary provided by the husband, there is more detail than there has been in the past but the husband did not provide any of it in his affidavit.  He provided it in the faxed letter received on the morning of the court.  In circumstances where the itinerary issue was contentious as a parenting issue, it strikes me as odd that it would not form part of the substantive evidence before me in this application.  To compound matters, also of concern in respect to that issue was the fact that I was provided with a document from a travel agent dated 10 September 2007.  This document has obviously been in the possession of the husband for some time. 

13. Whilst the wife may very well have been in a position to understand what was proposed by the husband in respect of his travel notwithstanding her criticism of him previously for failing to provide details, this information should have been provided to the Independent Children’s Lawyer.

14. Mr Richardson also raised the subject of the proposed travel affecting the children in the sense that they were being withdrawn from school early and that there was no evidence about the views of the wife let alone the teachers about that.  I am not troubled about that having regard to the proximity of the commencement of the school holiday period.  Whilst I note in respect of the conclusion of the travel that the children will be involved in significant travel before being returned to their mother, I am conscious of the fact that they do have some time to recover from their obvious jet lag thereafter.  Whilst that may have some impact upon what the wife can do with them, I am more concerned about their welfare than that of the wife.  That is not an issue about which I have any real concern.

15. In his judgment dated 13 February 2007, Cohen J expressed the view that the children would be excited about the prospect of the trip and with that I agree.  However, this does not seem to me to be such a critical trip that it could not be done at some other time in the future having regard to the ages of these two boys.  That particular issue bears little on my determination. 

16. In respect of the security issue, Mr Baran told me that if it was ordered, the husband could do something about it but my concern as I have pointed out is the lateness with which that issue has been raised.

17. Whilst this is a discretionary determination, there is some guidance in the decision of the Full Court of Kuebler (1978) FLC 90-434. That is along time ago and there have been a number of changes to the Act since then, including the most fundamental changes in July 2006. However, in respect of the question of the exercise of the discretion as to whether or not it is appropriate to allow the children to go, leaving aside the question of what is in their best interest, the Full Court said that there were a number of matters that needed to be taken into account. Those matters were the length of the proposed stay out of the jurisdiction, the bona fides of the application, the effect on the child of any deprivation of time with the other parent, any threats to the welfare of the child by the circumstances of the trip and the degree of satisfaction which the Court could have that the child would be returned.

18. In this case, whilst the evidence is very limited, I am satisfied that the length of the proposed stay is short and for holiday purposes and that the husband genuinely wants to take the children on a trip which they would enjoy.  There is considerable angst between the parties as was evidence during the cross-examination of the husband in the substantive proceedings before me earlier in the year that the wife could not keep in touch with the children whilst they were away.  Mr Baran indicated that that problem was now resolved because of the fact that there was the mobile telephone of not only the husband but one for each of the two children.  That also was not in the affidavit material of the husband.  Again, the husband’s material has an air of “fait accompli” about it. 

19. In my view, the children will not be devastated by not being permitted to go on this holiday and even if they are upset, each of the parents will need to deal with that.  I am concerned that in circumstances where the husband has known of this trip for some time, known of the wife’s previous opposition to international travel, known of the Court’s views about security, known of the wife’s concerns about communication whilst the children were away, known of the involvement of the Independent Children’s Lawyer and known of the mistrust between the parties currently as a result of the financial transactions which are the subject of the proceedings before O’Ryan J, the probability of the children being able to go overseas was anything other than a fait accompli.

20. This is still a parenting issue.  In every parenting issue whether it be final or interlocutory, the Court must look at what is in the best interests of the children.  The fait accompli approach of the husband does not justice to his case because none of the issues associated with s 60CC have been addressed.  Whilst I have teased out some of those issues relating to parenting capacity and parenting responsibility, I do not feel that comfortable in saying that granting this application could be in the best interests of the children having regard to the evidence.  Accordingly, in the exercise of my discretion, I declined to grant the husband’s application.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  24 September 2007