Bray and Klein - [2011] FMCAfam 872

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BRAY & KLEIN

[2011] FMCAfam 872

FAMILY LAW – Mother’s application to travel overseas and take eleven year old child for a holiday to the United Kingdom and other places – child to spend time with the maternal family – father wholly opposed to child missing school – says child should not go, alternatively child should travel to and from Cairns to the United Kingdom in seven days – father says he has a local camping trip planned and those plans ought not be altered.

Family Law Act 1975, s.60 CC

In the Marriage of Kuebler [1978] FLC 90-434
In the Marriage of Folly [1978] 95-11

Applicant:

MS BRAY

Respondent:

MR KLEIN

File Number:

TVC 1352 of 2007

Judgment of:

Willis FM

Hearing date:

4 March 2011

Date of Last Submission:

4 March 2011

Delivered at:

Cairns

Delivered on:

10 March 2011

REPRESENTATION

Solicitors for the Applicant:

In person

Solicitors for the Respondent:

In person

ORDERS

The mother is permitted to travel with the child [X] born [in] 2000 (“the child”) to the United Kingdom and Europe on Friday 8 April 2011, notwithstanding that the father does not agreed to the proposed travel.
The mother is to facilitate Skype or telephone communication between the father and the child no less than twice per week during the travel period.
The mother is permitted to travel overseas with the child on the basis that the child is returned to Australia no later than Friday 6 May 2011.
The child spend time with the father from Saturday 7 May 2011, to begin no later than 3:00pm on that day, such time to conclude at the commencement of school on Wednesday 11 May 2011 as per the current Consent Order.
The mother is to arrange make up time for the child at times to be elected by the father, and if the father so chooses, to include the entire Easter Holidays in 2012.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CAIRNS

TVC 1352 of 2007

MS BRAY

Applicant

And

MR KLEIN

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

This is a decision from an application in a case filed by the mother

Ms Bray on 10 February 2011. The application in a case is supported by an affidavit filed on the same date and a second affidavit is filed on 17 February 2011. The mother also refers me to the Family Report prepared in the matter released on 5 October for background. The application sets out the orders sought and they relate to permission to remove the child of this relationship, [X] born [in] 2000, from Australia for the purpose of taking [X] on a holiday to the UK and Europe to visit his maternal family. The mother is self represented.
The father has filed an affidavit on 3 March 2011 but no actual response document to the application in a case has been filed. The father is also self represented. The father puts at paragraph 17 of his affidavit:
I do not give my approval for [X] to leave the country under the current circumstances and believe the Court should not approve the application by the applicant in its current form.
At one stage in the hearing the father said he was prepared to be reasonable and allow a 14 day trip to the UK where [X] misses only a few days of school, not weeks of school. The father repeated that at some point during this hearing. He then said he sought for the application to be dismissed. He said he objected to the application and he would like two days over the Easter break period with the child and then he will permit a 14 day trip to the UK as per his email which he says he wrote but didn’t bring to Court.
On checking the father’s position after the short hearing and at the conclusion of the hearing the father said his position was that there should be no trip overseas for [X] as proposed and if the Court did order that [X] be taken overseas on the proposed trip that the mother be permitted to take [X] out of Australia for a maximum of one week, inclusive of the weekend. The father then said that it should all happen in the school holidays. He seemed to fluctuate between that position and then to restate his position that the mother could go for seven days maximum.
The father restated several times that the issue he had was that the mother had refused to negotiate with him and that her application was contrary to the existing consent orders. The parties in this matter are going through litigation in the Federal Magistrates Court in Cairns in relation to final parenting orders. These particular proceedings commenced in April 2010.

Background

The parties started living together in 1998 and married seven years later [in] 2005. They separated after only eight months it seems, in around May 2006. [X] was just over six years of age at that time. The father moved from Townsville where the parties were living at separation and commenced living in Tully for work reasons in or around that area around 5 October 2006.
The parties divorced in February 2008 and [X] is their only child. [X] will be 11 [shortly]. On 30 October 2007 Consent Orders were entered into for children and property matters. The parties remain living separately, the mother and [X] in Townsville and the father in a property at [omitted], I believe. The mother then having indicated some time later that she wished to relocate to Cairns, which she did over a 12 month period with [X]. This was with the father’s agreement, where the mother obtained a transfer with her employer.
In April 2010 the father, who has a [business omitted], moved to Cairns and he lives and works - I believe he works from home - in Cairns. He is self employed as an [omitted]. The mother is an [occupation omitted] in Cairns. She has been in a de facto relationship with Mr T since January 2010. Mr T is also a [occupation omitted]. [X] is in grade 6 this year at [W] State School. He participates in a range of extra curricular activities including sport, drama and dance.
The Consent Orders entered into provided for [X] to live with the mother, as he was then doing, and to spend time with the father. It seemed to be structured to fit in around the father’s work commitments. He was working, at least at one stage, 10 days on and four days off. The change that follows on from the father filing his application in April 2010 is, according to the father, that his work arrangements have changed and his living arrangements have changed. By that stage each of the parties had changed their place of living and the father’s arrangement had changed and he seeks, and is in the process of seeking, an order for an equal time shared care arrangement.
The arrangements set out in the Consent Orders has been in place for some time. The four days a fortnight has been maintained with [X] spending from Thursday afternoon to Monday morning with his father and the remainder of the fortnight with his mother. The parties have agreed to trial a period of five days a fortnight. Given that the parties are self represented and the level of acrimony identified in the Family Report, I have ordered an independent children's lawyer to represent [X]’s interest in the litigation for final orders and I made that order on 31 January 2011.
The ICL has filed a notice of address only on 8 March 2011. I should say for the record that having referred to the Family Report that while these parties are locked in a disagreement about the proposed trips, and I think many other issues, there is absolutely no doubt that these two parents deeply love and care for [X].

The hearing

Each of the mother and father gave evidence and was cross examined by the other. This was a difficult process given the acrimony between the parties and their lack of legal representation.
The writer of the Family Report noted that the parties shared history prevents them from shifting to an amicable parental alliance. Reference is made to their ongoing acrimony depleting their emotional and physical energy and preventing them from adopting a collaborative parenting stance. Mr Klein himself has stated in the report that in relation to the different parenting styles he is black and white and the mother is contextual.
I have observed in this application and short hearing what seems to be the father’s long-standing frustrations with the mother and what he perceives to be her railroading him into agreements and failing to properly mediate with him. The father made reference to the consent orders currently in place requiring the mother to negotiate regarding overseas trips and he is highly annoyed and agitated that the mother has not, in his view, properly negotiated.
The father’s major objection is that there are Consent Orders in place and the proposed trip doesn’t comply with those orders. He also says that he hasn’t been consulted with at any stage. The second strand to his opposition is that [X] must attend school, that it is a requirement and [X] should not miss any school. The father said he does not want [X] to travel overseas at any time that interferes with school. The father says that also in relation to Easter he has planned to go camping overnight or possibly two with [X]’s uncle and cousin up on the Atherton Tablelands, which is about an hour and a half from Cairns.
The father has tendered a letter from the [W] State School under the hand of the principal, Mr C, and that letter states very clearly that the school has not given any authorisation for [X] to be away from school and I understand that it is not their place to do so. The school, via the principal, has stated that all that has been indicated to the mother in relation to her proposed trip is that the school is happy to provide some school work for [X] to take away with him. The letter refers to them doing that and they obviously do that when parents have agreed. They have not endorsed that [X] is to travel overseas during the school term.
The father informed me that he had taken up the issue of divorced parents with the school and inquired whether there was any issue relating to [X]’s absence with school, that he would like to be included in the correspondence. He was under the impression from the mother’s material, and I can understand why, that the school had given some sort of approval and he wanted to be aware what approvals had occurred without his knowledge. I have clarified with the parties that, even though the mother has referred to school approval, the most that can be said from the letter is that the school is prepared to provide school work for the duration of the time missed at school.
The mother has said that the other deputy, Ms C, has sent an email (and that is in her material) in which she says she herself is a world traveller and, obviously, there would be some advantages in overseas travel for [X] and that school work can be provided. The other letter tendered is a letter from Relationships Australia which takes up a complaint by the father to that agency. The father complained that their dispute was deemed a matter inappropriate for family dispute resolution and also that he had been treated unfairly by a practitioner in the service.
The letter is important, not only to demonstrate that Relationships Australia have declined to mediate matters relating to these parties, but also because the father has expressed his annoyance at the mother for failing to participate in mediation. The father, having tendered the letter, told me he did not understand why the mediation was cancelled and no reason had been given. I understand why the father would think that there was no reason given because these letters are written in a certain style and are not easy to understand.
I have explained to the father that, having read the letter, what the letter meant and how it was optional for Relationships Australia to conduct a mediation, that they have their own guidelines and that it is at their discretion as to whether or not they conduct a mediation. I am not quite sure that the father understood that at the time because at the hearing he said that the applicant is not going to go to the mediation, which indicated that he didn’t really understand that it was not the mother’s refusal as much as Relationship Australia having made a decision that the matter not being appropriate for mediation. This decision has been reiterated in the letter of 3 March 2011 which it states at the bottom of page 1:
In this instance my investigation confirms that the centre made the correct decision not to proceed to a joint mediation session at this time.
There is no improper conduct alleged on the part of the mother, and as the letter states over the page at part 2:
There is confirmation that the decision not to proceed was solely that of centre.
The other document that is tendered is [X]’s report card from 2010, second semester, and he is described as highly reliable and a responsible student. He generally works well in independent groups. His work is of a very high standard. There is perhaps reservation about his playground behaviour choices, as it is so delicately phrased, but overall it is without a doubt a very good report. He has achieved excellent results. [X] has Bs in achievement for English, Maths, Science and so on. I think the only D he had was perhaps Music.
At the hearing I have permitted each of the parties to ask questions of the other. I have attempted to help each of the parties ask the questions to the other, given that they are self represented and it is not uncommon for people to find it difficult to know how to navigate their way around a courtroom and cross-examination.
I have also had regard to all of the evidence - oral, written and the submissions of each of the parties.

The Mother’s proposal

The mother’s proposal is to take [X] to the UK and Europe. She gave evidence that the proposed trip is to leave on 8 April and return to Cairns on Sunday, 8 May 2011. The itinerary is set out in the mother’s affidavit of 10 February.
The mother’s proposal is that [X] travel away with her for four weeks which allows for sufficient travel for the journey from Australia to Europe and return and to travel to the UK and visit family who reside in southern France and return. She proposes that it occur over the forthcoming Easter holiday period to lessen the amount of days that [X] misses school. On the current proposal he will miss 12 days of school. The mother has described the trip as allowing time to travel to see her mother in London, her sister in London, her sister in the north-east of England in Sunderland, her father in south-west of France, first cousin in Milan in Italy and aunt and two brothers who live in London and first cousins on both maternal and paternal, in London.
The mother has two grandmothers who live on the south coast; one close to Southhampton and the paternal grandmother near Portsmouth on the south coast. The mother said she grew up with all of these immediate and extended family members and it is important for [X] to go and spend time with her family in the UK who are [X]’s British family. The mother has also described a sense of urgency about this application. She has one grandmother who has suffered a stroke at the beginning of 2010 and who has severely deteriorating eye sight and both grandmothers are in their nineties, these are [X]’s great grandmothers. The other one has been moved from her family home to a nursing home. She is in a frail condition and fears that she will not survive to see [X] or the mother again.
Added to this, there has been a recent death in the family of the mother’s uncle. The mother says that [X] would enjoy having conversations with his great grandmothers, one of whom has had experience in the World Wars. The mother says that discussing such matters and matters of family heritage and culture with [X] would be of interest to [X], who is interested in all things military.
She is keen that [X] have the opportunity to share conversations of this kind about his family culture and heritage with the grandmothers before their medical conditions deteriorate. The trip is planned to incorporate a stopover in Dubai for a couple of nights where the mother says they will be visiting the Mohammed Cultural Centre for multicultural understanding, visits to a mosque, proposed traditional lunches in an old part of town and she says that this is being used as an opportunity to learn about the Muslim culture. The mother contends that it is important for [X] to get an understanding about the Muslim culture at this early stage of his development and that stopping in an Arabic country will enable this to occur.
She says that [X] will be able to develop an awareness and be inclusive about how he looks at people and views people from other parts of the world. She has also described some of the other locations that are planned, Portofino traditional ports with reference to how things would have been in seafaring days, Christopher Columbus and so forth which she believes that [X] will be very interested in. The mother said that she had last been to the UK in 2008 and that since that time she had been planning another trip. She hopes to be able to facilitate [X] to have a relationship with his family in the UK and for him to have some sort of meaningful relationship with them, in particular, some of the ageing relatives while they are still able to do so.
The mother does not have the funds to travel more than every two or three years. She says that it has been about three years since the last trip. The parties themselves have travelled to the UK. When they were together they travelled when [X] was 18 months old. They went for five weeks and extended it for six or seven. I believe they also went when he was six months. The mother and [X] have also travelled in 2008 after separation. That trip was about four weeks.
The mother draws my attention to the current Consent Orders which she says contain a clause which contemplates her future overseas travel, that she wanted that clause put into the Consent Orders and it reflects her ongoing desire to travel with [X] to the UK after separation. The clauses referred of the Consent Orders are clauses 12 and 13 under the children’s orders. The orders are styled on the basis that the child lives with the mother and spends time with the father, Order 12 reads:
Should either parent intend to travel during the time they are spending with the child they provide to the other parent an itinerary and contact details including an address and landline mobile telephone number at least one week prior to the intended date of travel unless the reason for travel is due to an emergency and that the parties consult and negotiate with each other the holiday spending time as provided for in these orders to accommodate travel to the child’s family in the UK. If the travel arrangement to the UK reduces the father’s spending time with the child, the father is entitled to compensatory make up spending time once the child has returned to Australia.
My reading of the order is, if either party travels during the time that they have allocated to them as holidays with [X], noting that the order set out specific times, they will give the other parent an itinerary and contact details at least one week prior to the intended date of travel unless such notice is not available due to an emergency. The orders continue that:
The parties consult and negotiate with each other the holiday time as provided for to accommodate travel to the child’s family in the UK. If the travel arrangements to the UK (obviously by the mother) - reduce the father’s time with the child, the father is entitled to compensatory make up spending time once the child has returned to Australia.
While it is not stated expressly it is inferred in those orders that the child will be travelling to the UK with the mother, that it will happen during the holidays and that if it encroaches into the father’s time he is to be offered make up time. The mother says that she understood that this clause permitted her to travel overseas. The mother says she sent the father a text message regarding the proposed holidays and after being in Court on 31 January 2011. On that day, I advised the mother that as far as I was concerned she wasn’t permitted to travel outside Australia with [X] unless she had the agreement of the father or an order of the Court. The Father said that he was opposed to the travel. Realising that she needed to get this permission the mother straight away emailed the father and sent him her proposed travel itinerary. The father has responded by not agreeing.

The mother has applied to the Court, the date now being 10 March 2011. She said that the reply from the father is on page 9 of the affidavit which is that the father would allow a seven day trip. He proposes one day or 24 hours for travel each way and five days inclusive in England and all of the other places which the father says is plenty of time to see the relatives.
The father says he thought he and the mother would be going to Relationships Australia to negotiate. I am able to see that Relationships Australia will not proceed with that mediation. At an earlier mention date I informed the mother that, as I said, she would need to get the father’s permission. As to the timing of the holiday, the mother says that the urgency is given the frailty of some of her grandmothers and also that it has not been possible for her to go over Christmas, which is when the father suggested that she should have gone then. She said she took up a new position on 29 November 2010 at [omitted] in Cairns. She is required to undergo training in the first week of December and then she is on her own before the New Year is to start and [omitted] is to commence.
The mother agreed, as was put to her by the father, that she had contemplated a trip to New Zealand around Christmas. She says it was nothing more than an idea and her partner comes from New Zealand and for it to occur she would have needed the father to return [X] to her a couple of days earlier. The father refused. The father agreed that he refused and said that it was a last minute thing and he had activities planned. The mother said that she didn’t keep going with the plans and this was the type of non-cooperation that she gets from the father and that is what it is like dealing with the father, so she has just dropped the idea.
The father, as I said, is opposed to the trip. When asked by the mother what was the issue with [X] going overseas because, really, it is about [X] being able to see his family over in the UK, the father replied that:
Your Honour, the issue is that this is part of an ongoing situation where I am not involved in major decisions regarding [X]’s life. I have – I receive notification after the fact. The applicant has ceased all communication with me. I am unable to get mediation sessions that actually get attended despite my willingness to attend these and I have done. I have done nothing wrong here. The issue – I have been taken to Court for someone else not following due process and my objection is based on that if current clauses in the consent orders are not followed then that sets a precedent for future not to be followed as well.
And in particular the word “negotiate” is especially important for me given the fact that we are divorced and we have a shared care of a son. If major overseas trips are not negotiated then what else is going to be negotiated? Now, I am more than – I am a reasonable person. What else is there to be negotiated?
I asked:
What else is there to be negotiated under the consent orders?
The father replied:
Well, there is negotiations regarding [X]’s future schooling, when he goes to high school, there is negotiation about his health – matters to do with his health.
Question:
Is there anything happening with his health?
The father replied:
No, I am just talking about things like a dental situation. I am talking about the school clothes, sharing at the moment. The applicant refuses to share any clothes with me, school sporting shoes. I have been told to purchase a second set of all his sporting gear despite the fact of having contributed to some of the gear in the first place. I am being demanded to return school clothes when the applicant has sets already and after Cyclone Yasi I was down at Babinda helping out and I was demanded to return another set of school clothes that were dirty because my washing machine wouldn’t work because I had no power.
Question:
Is there anything else? Those answers are not responsive. You have told me you are now getting down to clothes, shoes and sports. The question was, why are you objecting to a trip for [X] when [X] has an experience?
The father replied:
I am objecting to [X] because it is not in his best interests educationally and I am objecting.
Question:
Are there any educational benefits.
The father replied:
He can go overseas in school holidays. Going overseas during holiday time. I do not want to set a precedent where he misses out on school time for overseas trips because there is 11 weeks of school holidays in the year and so forth. I would like the trip overseas to be conducted during the school holidays. There is plenty of time every year for overseas trip. There is 11 weeks of holiday and there is plenty of time for overseas trip. I do not support him missing school based on setting a future precedent for travel purposes.
The father told me that in relation to the mother’s alleged urgency, “it is a bit mischievous”:
From my point of view the applicant talks about a sense of urgency when she has been planning this trip for six months and the urgency could have been taken up over three weeks…Further, I do not want to set a precedent where I am totally being ignored and disregarded about overseas travel with my son.
The father made reference to, when asked about mediation, that he is not being negotiated with fairly:
I am not being given the opportunity to negotiate. I am just being – I am not being communicated with, I am being ignored and I am being ridden roughshod over and that has concerns for me for the future.
The father made reference to the mother winning her application and I have reminded him that orders in this Court are not made about parents winning and losing, that orders are made based on the best interests of children.

The Law

The law that assists me to make this decision is in various cases including In the Marriage of Kuebler [1978] FLC 90-434 and factors which are set out then which the Court should consider in such applications are 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 access and the degree of satisfaction that a promise to return to the Court would be honoured. There is also reference in the similar matter to the Marriage of Folly [1978] 95-11.
I have noted the description of [X] in the family report as mature and articulate. He misses his mother and father when he is not with them, he misses his father particularly so if he has had an argument with him when they have been together and he wants to make it up. Looking at the issues, whether or not the application is bona fide as I have made reference to, that father says this is just an overseas trip dressed up for recreational purposes to look like it’s benefiting [X] and look like it is visiting relatives. He says the mother is setting a precedent. He is being ignored, as I have said. He says it has an urgency and that that is a bit mischievous.

Discussion

I have looked at the material and heard the evidence and I am satisfied that the trip is a bona fide application. The purpose of the trip is, in my view, entirely legitimate. [X] ought to have an opportunity to spend time with significant other family members and to spend time with his mother doing that and that he also should have the opportunity to spend time with his mother on occasions that are important to her. His cultural education and an opportunity to engage properly in his English heritage is a valid purpose for travel, in my view. To engage and spend some meaningful time with his grandmothers, aunts, cousins could only benefit [X].
I think it is significant that, as set out in the mother’s material of July 2010, that the parties first met in January when the father was holidaying in England in 1998. They kept in touch. The mother travelled to [omitted] to spend time with the father. She fell pregnant. She went back to England and then returned to live with the father in England. The mother has been granted permanent residency in Australia. The mother’s wish, therefore, to return to her own homelands and family, in my view, is entirely legitimate and I can see that it has been provided for in the orders that have been made.
The length of the stay is another consideration. The father suggests the mother go for a week. I consider that the cost of travel, together with the length of the journey, more than 24 hours one way and then the same back, would preclude any serious consideration of going for a week. I do not consider this, with respect to the father, to be a realistic or child-focused position. The travel, the tiredness, the swiftness of the trip, it would be frantic. I consider that this was really a most unreasonable response.
The mother proposes going four weeks and through the Easter period. Going through the Easter period seems to address the father’s aversion to [X] missing school in that it reduces the time that he would be missing school. In my view, the missing of school and the attendance of school is, of course, an important requirement in the life of any child. Children have to basically attend school. However, as I have explained to the father, there are many parents who have been granted permission to travel overseas to include school time since the Family Law Act began in 1975.
Parents who are in intact families will often take children out of school for a period of time. It is not difficult to imagine that there are benefits of international travel, experiences in the UK and Europe and even in the Dubai stopover. The opportunity to discuss family history with relatives in their nineties who have lived in a time long before [X] was born and who would have experiences that [X] could not imagine to begin, would be an enriching and unique experience. The opportunities of learning experiences in such a trip, are my view, is endless. I consider that this trip will benefit [X] and it will help him fulfil and achieve his potential in life, and that is one of the considerations when I make orders.
It will also help him cement his family ties. It is not lost on me that the mother is a [occupation omitted] and listening to the experiences that she has considered for [X] satisfies me that he will learn much on this trip. As well, he is able to have work provided to him by the school. The parties have themselves (when together) travelled overseas for six to eight weeks and then the mother went in 2008 with [X] for four weeks. The period that she has asked to be away, generally, in my view, is not unreasonable.
In looking at the return date, I note that the mother intends on arriving home Sunday 8 May at 5.30 on the Sunday prior to commencing school. If this were to occur I would anticipate that [X] would be very tired having travelled much during that week and I would expect him to be fairly tired in attending school. Looking at the next issue which is the effect of the child of deprivation of contact, with the father, [X] has been in the primary care of his mother since 2006. She is, in my view, well able to provide for [X]’s emotional care and nurturing while he is away from his father.
I note in the Family Report that [X] misses his father when he says goodbye to him and he misses his mother. He says he doesn’t miss his dad as much now that he is spending more time regularly with him, given that the father has moved to Cairns. To the extent that that is a child-focused move, the father is to be congratulated for taking those steps. [X] will turn 11 [shortly]. I don’t have any evidence as to what effect not seeing his father for four weeks will have on [X]. I have to state, though, that this is not an issue that has ever been raised by the father. He has been more concerned with his rights and the fact that the mother won’t or hasn’t gone to mediation.
I know that each of these parties love [X] and obviously having lived with his mother as his primary carer for all of his life and certainly since 2006 when the parties separated, I have no doubt of the mother’s capacity to parent or that she is anything other than a responsible and caring parent and well able to look after [X]’s emotional wellbeing for the period that he would be away. I would expect during this time that the mother is away that [X] would have the opportunity to communicate with his father, certainly no less than twice a week and preferably by Skype and other times as [X] requests to do so, and I would include that in any order.
As to the threats to the welfare of the child or the circumstances of the proposed environment, there is no evidence that there are travel warnings to any of the destinations. The father started off objecting generally to the Middle East but conceded that there were no problems in Dubai and he has moved away from that and reverted when the matter was raised to his opposition that his situation or issue really was that the mother had not negotiated properly. As to whether or not the promise of the mother to return would be honoured, this, again, has not been raised by the father at this hearing.
The mother, to my mind, has every intention of returning. She has set out her employment at [omitted]. She owns property in Cairns. She is in a stable de facto relationship. I accept she has every intention of returning to Australia. As evidence of her bona fides she has always held the child’s passports, both British and Australian, and I am satisfied that she does not represent a flight risk.
In terms of the father’s objections to the mother’s alleged refusal to negotiate the Consent Orders, in my view the father is, with respect, over-reading the obligations placed on the parties in those orders. Those orders contemplate this travel. They suggest that it is likely to occur in the father’s time or, more properly, if it does that he is to be offered make up contact. It is implicit or seems to be inferred that it may at times need to encroach on his time and if it does he is to be offered make up contact. I have told the father that if parties cannot agree at mediation that mediation and negotiation is not an end in itself. It is a method to attempt to try and resolve an issue. People do not have to negotiate to the death. Sometimes a circuit breaker is required, that is usually Court. The mother does not have to negotiate until she agrees with the father’s proposals any more than the father has to negotiate with the mother until such times as he agrees with her proposals. That is not a proper way to conduct a mediation. Mediation can be abused if one party simply stonewalls or if one party is overbearing, or there is a power imbalance.
The father has indicated, very clearly, that his steadfast position is that no school was to be missed and, alternatively, if school is to be missed it is to be only five days of school. The mother proposes plans that involve 12 days of missed school. It is difficult to know how to negotiate when one enters a mediation with a fixed and unmoveable position.
I have considered all of the factors in this matter. I am satisfied the trip will have educational benefits, that it will account for any loss of school. The mother is a [occupation omitted] and I am satisfied she will turn the experience into an educational trip as much as she possibly can. The benefits of [X] seeing his two grandmothers and other family are obvious. There is benefit to his understanding of his mother’s side of the family and his English heritage and culture.
I understand the father wanted to take [X] camping for one or two nights over Easter during the period the mother will be away with [X]. I accept this is a positively worthwhile pursuit and one that [X] will love. It is not, however, something that can only occur at Easter. It can actually occur on any weekend that the father has [X] throughout the year or in other holiday periods. Atherton is an hour and a half away. It is a lovely drive. The father does it regularly. The Easter holidays actually provides more public holidays which means that going at this time less school is missed. I have gone carefully through the plan with the mother noting the short weeks occurring in the proposed period of travel.
Having considered all of the evidence I am satisfied that the trip is entirely beneficial for [X] and that it is in his best interests to go, generally at the times as proposed.
I will make orders that [X] have contact with his Father whilst on holidays, as I have said, of no less than twice a week and that the mother facilitate that contact either by Skype or phone. I would prefer, however, that the trip end a little earlier than planned. I consider that the trip and the long flight home, albeit that it is staggered, will still leave [X] tired and I do not expect that he will be up bright and bushytailed on Monday morning having arrived back in Cairns Sunday evening from so much flying the week before.
I also consider that it is important for [X] to arrive home and return and spend time with his father before returning to school. I therefore, will make the order that the mother is permitted to travel on the basis that [X] is to return home no later than Friday, 6 May, that way he has Saturday and Sunday to recover. And I will order that he spends time from Saturday, after he has rested, with the father and I consider that that should commence no later than 3 pm on Saturday, 7 May 2011. [X] is then to remain with his father until the commencement of school on Wednesday 11 May 2011.
That will reduce the travelling trip from Friday 8 April until Friday 6 May inclusive.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Willis FM

Date: 25 August 2011