MH & AB - [2005] FMCAfam 249

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MH & AB

[2005] FMCAfam 249

FAMILY LAW – Residence – contact – telephone contact – mobile phone – cost of airfares – mid-term contact – arrangements for travel overseas – passports – final orders already made by consent – fine-tuning of orders – need for variation of orders – final orders made.

Family Law Act 1975 (Cth)

Rice and Asplund (1979) FLC 90-725

Applicant:

Respondent:

File Number:

CAM1287 of 2004

Judgment of:

Mowbray FM

Hearing date:

19 November 2004

Date of Last Submission:

19 November 2004

Delivered at:

Canberra

Delivered on:

27 May 2005

REPRESENTATION

Counsel for the Applicant:

Ms L Clifford

Solicitors for the Applicant:

Chris Crowley & Associates

Counsel for the Respondent:

Ms A Tonkin

Solicitors for the Respondent:

Hill & Rummery

ORDERS

The orders of 3 September 2003 be varied as follows:
(a)Order 13 to read:
13.That the mother shall allow the children to have uninterrupted telephone contact with the father on each Wednesday evening and Sunday evening between 6:00pm and 7:00pm on her home telephone, which she will ensure is charged up sufficiently so that the calls are not interrupted. If the mother or children are not home during this period, then the mother shall supply the father with an alternative working contact number in advance on which to contact the children. That in the event the father, through no fault of his own, is unable to exercise telephone contact with the children pursuant to this order, the father be permitted to have make-up contact within 48 hours of the missed usual contact at the same time as the usual telephone contact.
(b)Order 15 to read:
15.When the children are with the father, the mother shall have uninterrupted telephone contact with the children each Wednesday evening and Sunday evening between 6:00pm and 7:00pm at the father’s home telephone number or if the father and the children are not at home, the father is to advise the mother of an alternate telephone number on which to contact the children. That in the event the mother, through no fault of her own, is unable to exercise telephone contact with the children pursuant to this order, the mother be permitted to have make-up contact within 48 hours of the missed usual contact at the same time as the usual telephone contact.
(c)Order 16 be deleted.
(d)The words “and great grandmother” in Order 17 be deleted.
(e)Order 22 to read:
That in the event the parties are not resident in the same city,
(a) the children shall have contact with the father during all of the Easter, June/July and September/October school holidays and half of the Christmas school holidays, with the Christmas school holidays alternating from the first half to the second half from year to year, commencing with the first half to the mother in 2005 and the second half to the father
(b) such school holidays are to be defined in accordance with the dates applicable to the school holidays in the State or Territory in which the children are residing
(c)   the cost of economy airfare travel shall be shared equally between the parties with the father to book and pay for airfare travel at the commencement of each school holiday contact and the mother to book and pay for airfare travel at the end of each school holiday contact
(d) the mother shall ensure that the children are made available at the airport at the commencement of school holiday contact with the father to join the flights booked by the father.
(f)Order 23 to read:
That in the event that the parties are not resident in the same city,
(a) the children shall have additional contact with the father such that they travel to the father’s place of residence for one weekend or long weekend which is the closest possible to the middle of each school term in the State or Territory in which the children are residing, with such contact commencing in the Thursday or Friday and concluding with the children returning to the mother’s care by 7.30pm on the following Sunday or Monday
(b) the father shall decide whether to have such mid term contact from either Thursday evening to Sunday evening or Friday evening to Monday evening
(c)   the father shall book and pay for airfare travel at the commencement of each mid term contact period and provide the mother with written notification of those airline bookings and dates for contact no less than four weeks prior to any scheduled contact pursuant to this order
(d) the mother shall ensure that the children are made available at the airport to join the flights booked by the father for the commencement of mid term contact
(e)   the mother shall book and pay for airfare travel at the conclusion of each mid term contact period.
(g)Orders 29 and 30 (formerly 30 and 31) be added as follows:
29.That the mother forthwith sign all passport application forms for the children and the parties do all acts and things to cause the completed and signed applications to be lodged with the Passport Office for issue. Within seven (7) days of issue of the passports, the parties shall cause the children’s passports to be deposited with the Registry Manager of the Family Court, Brisbane.
30.Each party be entitled to travel with the children overseas during such times as the children are in their care pursuant to the orders made on 3 September 2003 and for no longer than three weeks at a time and the following shall apply:
(a)No less than six months prior to either party intending to travel overseas with the children, that party shall provide the other party and the Family Court, Brisbane Registry (either by personal presentation or lodgement by registered mail) with an itinerary of the proposed travel and accommodation overseas, including dates of any travel, copies of return air fare bookings and confirmation of payment of the return airline tickets, and at least one telephone contact number on which the other parent may contact the children (at most once per week)
(b)Seven (7) days prior to either party intending to travel overseas with the children, that party shall deposit into an agreed solicitors’ Trust Account the sum of $10,000 as security until that party’s return with the children from overseas
(c)Upon written confirmation of receipt of the security referred to in order 30(b) above, the Family Court, Brisbane Registry, shall release the children’s passports to the parent travelling overseas and that parent will return to the Court for lodgement at the Brisbane Registry the children’s passports at the conclusion of the overseas travel.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAM1287 of 2004

Applicant

And

Respondent

REASONS FOR JUDGMENT

Introduction

This matter involves a dispute between two parents, MH (the father) and AB (the mother), about various residence and contact matters.
On 3 September 2003 consent orders were made by the Family Court of Australia. On 24 August 2004 an application was filed in this Court by the father seeking to vary those consent orders. A contravention application was also filed at the same time. A response filed on

3 September 2004 sought to have the father’s application dismissed. The mother also brought a contravention application.
An amended application was made on 15 September 2004 followed by an amended response on 5 October 2004.
Only those matters seeking changes to the consent orders of

3 September 2003 are before me. The contravention applications have been adjourned indefinitely.

Background

The applicant father was born in 1960 and is now 44 years old. The respondent mother was born in 1966 and is 38 years old. They started living together around January 1993 and separated on 1 October 1999.
There are two children of the relationship, Alice (not her real name) born 1994 (10 years old) and Rebecca (not her real name) born 1998 (six years old at the time of the hearing and now seven).
The father has been married to K. Martin (not her real name) since 2001. Ms Martin has two children from a previous marriage, Susan (not her real name)(aged 20 years) and Catherine (not her real name) (aged 14 years). The mother has been married to A. Brandon (not his real name) since 26 January 2001. She also has one child of a previous relationship, Chloe (not her real name) (aged 17 years).
Broadly speaking the September 2003 consent orders provided that the two children of the parties’ marriage, Alice and Rebecca, would live with the mother and that the father would have contact for the whole of the school holidays and one extra weekend in the middle of each school term. At the time the orders were made the mother was residing in Brisbane, Queensland and the father in Bowral, New South Wales. The mother still resides in Brisbane, but the father now resides in Canberra.
The father sought changes to the orders relating to:
·changes in residence of the children
·telephone contact
·arrangements for booking and paying for air travel for holiday and mid term contact
·a mobile phone for Alice.
He has also sought addition of a number of new orders providing for the issuing of passports for the two children and the care of the children by a person known as “John”. At the hearing the father did not seek to pursue the matter in relation to “John”.
In her amended application the mother sought discharge of all previous orders and substitution of new orders. At the hearing she agreed that the Court should only consider those changes proposed by the father and an additional one which would relieve her of paying the cost of mid term contact.

Change in residence

Orders 5 and 6 of the consent orders currently provide:
5. That the mother shall notify in writing to the father any change of the children’s place of residence 42 days prior to any intended change. Notice shall be provided in the form of registered mail.
6. That the mother shall not move the place of residence of the children to a city or town further away from the father’s current place of residence without the consent of the father.
The father now seeks that these two orders be changed to:
5. The mother be restrained from moving the children’s place of residence from the Brisbane, Qld area without further order of the Court or without the father’s written consent.
6. The mother shall keep the father informed of the children’s current home address providing 30 days advance notice of any change.
On the other hand the mother supports continuation of order 5 but seeks to have order 6 deleted.
In summary the father’s reasons for seeking the changes are:
·he says that the mother has relocated nine times with the girls since November 1999. During this period Rebecca has attended seven different crèches and Alice has changed schools approximately five times
·he alleges that when he gave an indication that he might move to Brisbane to be closer to the girls, the mother made plans to move to Bermagui
·he says that the mother has constantly changed the children’s residence.
The father says the current orders are not effective to prevent sudden moves by the mother with the children. The moves have been disruptive for the children who have had to frequently make new friends and have lost old friends. The orders therefore need to be tightened in the best interests of the children.
The mother denies that the children have moved as often as the father asserts. She says they have moved only six times, and only once since the consent orders were made in September 2003. Rebecca has attended five crèches not seven and Alice has only had one change of schools since the orders were made. She acknowledges that on the one occasion they moved since the orders she did not give the 42 days notice required by order 5, but she did give 17 days notice. She said that she was unable to provide the required notice due to difficulties in finding accommodation.
The mother opposes the changes proposed by the father. Her husband is the sole financial provider for the children and works in a specialised field. It is a condition of his continued employment that he is able to relocate. The mother does not work. She says that the purpose of the changes proposed by the father is to further tie her up as the primary caregiver. The mother also says that the constraints on her imposed by order 6 are unnecessary and should be removed.
The father puts the proposed changes forward as some “fine-tuning or amplification” of the September 2003 orders. In my view the proposed order 5 which would restrain the mother from moving from the Brisbane, Queensland, area amounts to something more significant than fine-tuning.
The present orders require the mother to notify the father of a change of address but only restrain her from moving the children to a place further away from the father’s current place of residence. The father’s proposal would require the mother to make an application to the Court or obtain the father’s written approval if she were to move outside the Brisbane area. This would effectively change the approach set out in the consent orders. It would require the mother to seek permission for a move outside Brisbane even though that maybe closer to the father’s residence. Currently if such a move was suggested the onus would be on the father to have the mother restrained after he had been given notice.
I do not think it is in the interests of the children that this restraint be placed on the residence parent, particularly as it may affect the income-earning capacity of the family. In my view the current orders adequately protect the father. The affidavit evidence in support of the proposed changes to orders 5 and 6, including that proposed by the mother, is not convincing.
The best interests of the children are served by retaining the consent orders made in September 2003. I therefore reject the changes sought by the father and by the mother and will leave orders 5 and 6 as they are.

Telephone contact

Orders 13 to 16 currently provide:
13.That the mother shall allow the children to have uninterrupted telephone contact with the father on each Sunday evening between 6:00pm and 7:00pm on her home telephone, which she will ensure is charged up sufficiently that the calls are not interrupted, and if the mother or children are not home during this period, then the mother shall supply the father with an alternative working contact number in advance.
14.That during any such telephone calls mentioned in Orders 13 and 15, both parties shall be restrained from interfering with the conversation between the children and the parent and the parties shall not permit any other person to do so.
15.When the children are with the father, the mother shall have telephone contact with the children each Sunday evening between 6:00pm and 7:00pm at the father’s home telephone number or if the father and the children are not at home, the father is to advise the mother of an alternate telephone number on which to contact the children.
16.That the mother shall allow the children to telephone the father without interference on one other occasion per week in addition to Sunday telephone contact, as close as possible to the middle of the week, and between 6pm and 7pm on the father’s home telephone number, and if the father is not home, on the father’s mobile telephone number.
The father proposes two changes to these provisions on landline telephone contact:
·that the second contact day be fixed as Wednesday evening rather than as currently provided in order 16 on a day as close as possible to the middle of the week
·that in the event that the father cannot exercise telephone contact because the children are not available, he should be able to have a contact time later during the week.
The reason the father seeks the first change is because he claims to have experienced difficulty in contacting the children. This change is not opposed by the mother and I agree that it is a sensible piece of fine tuning in an attempt to overcome possible problems.
The second change would allow the father a catch up call if the children were unavailable for telephone contact. The initial proposal was that the catch up be the following evening at the same time as the usual telephone contact. This was amended to allow for the catch up within 48 hours on an evening at the same time as usual telephone contact. The father says that he has been unable on occasions to make telephone contact as the children have been unavailable. He thinks he should therefore have another opportunity to talk to them. It was not intended to cover situations where he himself was unavailable.
The mother opposes this further contact catch up arrangement. She says that no change is required to the current orders as she continues to ensure that the children are available for their telephone contact. If a catch up provision were to be included it would impact on their ability to function as a normal family with after-school activities and such like. No further restrictions should be placed on the mother over and above the two nights Sunday and Wednesday which are to be set aside for telephone contact.
In my view the catch up provision appropriately worded is a reasonable proposition which would assist in appropriate telephone contact between the father and the children. It should not be confined to the evening following the usual contact day. As the father proposes it should not be available if the failure to exercise contact is the fault of the father.
In the circumstances a change which will enable the father to exercise telephone contact with the children on an evening within 48 hours of the normal telephone contact and at the same time as the usual contact is in the best interests of the children. I therefore propose to make this change to the consent orders.
The father also seeks the removal of the provision for telephone contact with the great grandmother as currently set out in order 17 because the great grandmother is no longer alive. I agree with the proposal which is not opposed.

Contact with the father

Orders 22 and 23 currently provide:
22.That in the event that the parties are not resident in the same city, than [sic] the children shall have contact with the father, being all of the Easter, June/July and September/October school holidays and half of the Christmas school holidays with the Christmas school holidays alternating from the first half to second half from year to year, commencing with the first half to the mother in 2003 and the second half to the father, [sic] Such school holidays are to be defined as the dates applicable to the school holidays in the State or territory in which the children are residing. The cost of economy airfare travel shall be shared equally between the parties in relation to the school holiday contact.
23.That in the event that the parties are not resident in the in the [sic] same city, then the children shall have additional contact with the father such that they travel to the father’s place of residence for one weekend or long weekend which is the closest possible to the middle of each school term in the State or Territory in which the children are residing, with such contact commencing on the Thursday or Friday, and with such contact concluding with the children returning to the mother’s care by 7:30pm on the following Sunday or Monday as agreed between the parties in writing, and that the cost of economy air travel shall be shared equally between the parties in relation to the extra contact period and the details shall be confirmed between the parties in writing a minimum of four weeks prior to each contact period.

The father wishes to have the following words added to the end of order 22:
with the father to book and pay for airfare travel at the commencement of each school holiday contact and the mother shall ensure that the children are made available at the airport to meet the flights booked by the father. The mother shall book and pay for airfare travel at the conclusion of each school holiday contact.
He also seeks to have the words after “Monday” in order 23 deleted and the following words substituted:
and to facilitate such contact, the father to have mid term contact at his election from either Thursday evening to Sunday evening or Friday evening to Monday evening and he shall book and pay for airfare travel at the commencement of each contact period and provide the mother with written notification of those airline bookings and dates of contact no less than four weeks prior to any scheduled contact pursuant to this order. The mother shall ensure that the children are made available at the airport to meet the flights booked by the father. The mother shall book and pay for air fare travel at the conclusion of each contact period.
The mother wishes to change order 23 so that costs of air travel for mid term contact are solely borne by the father and not shared as at present.
These proposals cover three issues:
·how the bookings are made and paid for
·the sharing of the costs for mid term contact (see the next section)
·whether the dates for mid term contact should be at the election of the father or as agreed between the parties.
The father seeks the changes because of difficulties he claimed have occurred in the past particularly in relation to proposed holiday arrangements for September 2004. He asserts that the mother agreed to the children going with him on holiday to Malaysia but then there was an argument about passports when the mother insisted that they be returned to her and the father wanted them held by a third party (I deal with the issue of passports below). The Malaysia holiday was dropped and the father decided to go to Dunk Island instead. Then there was an issue about the date on which the children should fly to meet the father and the location at which they should meet him.
The father makes the point that he is an electrician. He cannot always guarantee that he will be available on a Thursday for mid term contact. When the children have to travel from Brisbane to Canberra a weekend is not sufficient. Thus the father should be able to choose whether or not the mid term contact starts on a Thursday or Friday and ends on a Sunday or Monday respectively. After all the children are relatively young and not in their later years of schooling.
On the other hand the mother objects to any proposal which would allow the mid term contact to be at the election of the father rather than, as is currently the case, subject to agreement. She points out that when the dispute arose the father wished to end that contact on a Monday on which one of the children was to be involved in an important sports meeting, a mini-Olympics. The father’s proposals would just further complicate the orders and invite further litigation.
It is possible to resolve this dispute without making findings of fact on the disagreement over the September 2004 holiday arrangements. After all the Court only has the conflicting versions before it in the form of affidavits which have not been tested.
It would be generally desirable that the parties reach agreement on matters such as the booking and payment of travel and the days on which mid term contact is to take place. However, it is quite clear that the parties to this dispute cannot reach agreement and need further prescription from the Court, unfortunate though that might be.
Some changes to these orders should therefore be made. It is in the best interests of the children that this be resolved. The choice then is between the father or the mother having the power to decide on which days there should be mid term contact. As the mother is the residence parent and the contact is to be with the father, I have decided on balance that the father should have the decision-making power. Hopefully, if on occasions this presents difficulties, the parties shall have the good sense to reach some form of agreement between themselves.
In the circumstances I think that it is in the best interests of the children that orders 22 and 23 be changed as sought by the father subject to some small drafting changes. The mother’s proposal that the father pay the whole cost of the airfares for mid-term contact is considered in the next section.

Cost of mid-term contact

The September 2003 orders provide that “The cost of economy airfare travel shall be shared equally between the parties” for mid-term contact (see order 23). The mother now seeks an amendment which would require the father to pay the total cost of these flights, with none being borne by the mother.
Ms Clifford for the father submits that the Rice and Asplund principles apply to prevent further consideration of this issue. The mother’s proposal is a substantive one and not fine-tuning.
Under the principles in Rice and Asplund (1979) FLC 90-725 an applicant must show a significant change in circumstances to warrant the court reconsidering an existing parenting order. Chief Justice Evatt, with whom Pawley SJ and Fogarty J agreed, said in Rice and Asplund:
“the court … should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will 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 (passage quoted in Hayman and Hayman (supra), at p.75, 680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
Once the court is satisfied that there is a new factor or change of circumstances, then the issue of custody is to be determined in the ordinary way.”
Has there been a change of such significance in the circumstances here to justify reopening the question of shared cost of the airfares for mid term contact?
The only issue to which Ms Tonkin for the mother referred me in support of the Rice and Asplund point was the change in the child support paid by the father. In evidence was a Child Support Payee Transaction Statement for the period 23 March 2000 to

7 September 2004. Ms Tonkin said that this showed some fluctuation in credit payments suggesting that the father’s earnings had fluctuated somewhat over time.
However, this statement reveals that there had been a few significantly higher payments than the norm in January, February and July 2003 with a smaller increased payment at the beginning of April 2003. These payments of course were before the consent orders were made in September 2003. All the payments after 23 July 2003 were for $21.67 per month.
The evidence just does not support the mother’s contention that there are significant new considerations or such a change in circumstances which would require the Court to consider afresh this question. In accordance with the principles set out in Rice and Asplund I decline to reopen the question of cost sharing for mid term contact and reject the mother’s application that it should be borne solely by the father.

The mobile phone

Order 27 currently provides:
27.That both parties shall ensure that any cards or gifts sent by any party shall be received by the children unopened and in the same state as they were originally packaged or sent, and shall be restrained from removing those gifts from the children’s possession.
The father wants added to this order:
The mother be restrained from confiscating the mobile phone or phone charger provided by the father to either child, and is further restrained from interfering with the power source to such phones. The mother shall forthwith return to [Alice] the mobile phone provided by the father.
During submissions Ms Clifford for the father recognised that the change he proposed was too broad and needed to be more confined given the sort of use that a ten year old child could make of a mobile phone. She proposed that the order might be further amended:
That the mother may be permitted to require the phone to be turned off for short periods of up to 24 hours for specific reasons and from bed time at 7.30pm to 8.30am in the morning.
The father asserts that in December 2003 or January 2004 the mother confiscated a mobile phone he gave to Alice without giving any reasons for doing so. It appears that Alice was given a new mobile phone by her father around March or Easter 2004. There is some disagreement over this timing but the mother puts the latest date for the gift at the June/July holidays. But that too was confiscated by the mother.
According to the father there have been significant difficulties with telephone contact with the children, particularly with Alice. He speaks of the mother interrupting the children, prompting them, he suggests that the phone on occasions is on loudspeaker or that someone else picks up an extension phone and listens in. He says that the children feel constrained on a landline as their privacy is threatened. He finds on occasions that he is not been able to talk with the children because they are unavailable.
On the other hand he says that communication through a mobile phone allows one of the most meaningful forms of contact with the children and one of the best forms of communication for him and Ms Martin with the children. The children are distracted and do not speak for a long time on the land line. But on the mobile Alice spoke openly and freely and was very chatty, providing her father with lots of details of what was happening in her life.
In his affidavit evidence the father provided details of calls from Alice on the mobile phone and how this had assisted Alice with issues that were facing her. He indicated how this added to the warmth and depth of their relationship and also the relationship between Ms Martin and her daughter, Catherine. Alice also used the mobile to send SMS text messages to him. Furthermore Alice needed the mobile as the father alleges that the mother blocked emails to the child.
The mother deposed that the second mobile was returned as a result of a phone call from Ms Martin on the 15 August 2004 which caused Alice to become distressed. This was one of a series of incidents. The mother found that the mobile phone was intrusive and a constant disruption to her household. She said that there were phone calls and SMS messages on a daily basis. They occurred early in the morning when the children should be sleeping, while the children were getting ready for school, while she was driving the children to school, during school, while she was driving the children home from school, while the children were doing their homework, during dinner, while she was trying to get the children ready for bed, and later in the evening when they should be asleep.
Ms Tonkin for the mother submits that giving a mobile phone to the children cuts at the heart of the orders. It is against the spirit of the consent orders that were made in September 2003 and has the effect of undermining those orders. Those orders provided for telephone contact by land line with the children. The provision of a mobile phone circumvents those orders. It is divisive of the mother’s parenting, impacting negatively upon it. She fears that it will allow for further verbal and emotional abuse by the father and Ms Martin directed at the children. It would disrupt the running of the household and the children’s daily routine.
All the evidence before me was given by affidavit. None of it has been tested. While it is clear there was a tense conversation between Alice and Ms Martin on 15 August 2004, the details of that conversation are not clear. I can accept that the mother found the mobile phone disruptive and intrusive. There is no doubt however that provision of a mobile phone is a major cause of conflict between the parents.
The question for me is what is in the best interests of the children.
This is a difficult decision. I think there is much in what both parties have said. I agree with Ms Tonkin that the provision of a mobile phone does undermine the orders for telephone contact which were made by consent in September 2003. Those orders set out a regime for contact, including telephone contact. It is clear also that mobile phones in the hands of ten year olds are quite disruptive and present some difficulty for the parent with the responsibility for that child’s daily care and control.
On the other hand mobile phones in today’s world have much to commend them. In a situation such as this a child can communicate freely and develop a fruitful and free relationship with a parent who lives a long way away and who she sees only in holidays and mid-term. Perhaps this is even more so here because the child spent some time after separation living with her father before moving to live with her mother.
In circumstances where there is a spirit of cooperation between the parents, the provision of a mobile phone to Alice could be very beneficial to her and for her relationship with her father. Unfortunately in this case the parents show no real appreciation of the need to act in a spirit of goodwill. I cannot be confident on the evidence before me that that will significantly improve in the future.
As noted above the father was prepared to put forward an amendment which narrowed down the restrictions on the mother’s dealing with the mobile phone. I have thought carefully about that proposal and am not satisfied that it could be implemented easily and practically given the relationship between the parents. It seems to me that it would be just another springboard for dispute.
I have reached the view reluctantly that it is not in the best interests of Alice that the mother be restrained from confiscating any mobile phone provided to her by the father. As I have said I have decided this reluctantly because I think that there are significant benefits as well as detriments associated with the provision of a mobile phone particularly in today’s technological society. Those benefits for Alice unfortunately will have to wait a greater spirit of cooperation between her parents. In other circumstances my decision may well have been different.
I reject the changes proposed to order 27.

Passports

This is a new issue which is not covered in the consent orders of September 2003. The background is straightforward and can be briefly explained. In July 2004 the father sought the agreement of the mother to take the two girls to Malaysia during the September school holidays with Ms Martin and her two daughters. The mother agreed to the proposal. However, it came unstuck because of a disagreement over who should hold the passports on return from the holiday. The mother wishes the passports to be provided to her on the children’s return whilst the father said they must be held by a third party – a lawyer or the Family Court. As a consequence no passports were obtained for the two girls and the holiday to Malaysia was abandoned.
The father seeks the following orders
30.That the mother forthwith sign all passport application forms and the parties do all acts and things to cause the applications to be lodged with the Passport Office for issue. Within seven (7) days of issue of the passports, the parties shall cause the children’s passports to be deposited with the Registry Manager of the Family Court, Brisbane.
31.Each party be entitled to travel with the children overseas during such times as the children are in their care pursuant to the Orders made on 2 September 2003 and for no longer than three weeks at a time and the following shall apply:
(a)No less than six weeks prior to either party intending to travel overseas with the children, that party shall provide the other party and the Family Court, Brisbane Registry (either by personal presentation or lodgement by registered mail) an itinerary of the proposed travel and accommodation overseas, including dates of any travel, copies of return air fare bookings and confirmation of payment of the return airline tickets, and at least one telephone contact number on which the other parent may contact the children (at most once per week);
(b)Seven (7) days prior to either party intending to travel overseas with the children, that party shall deposit into an agreed solicitors’ Trust Account the sum of $10,000 as security until that party’s return with the children from overseas.
(c)Upon written confirmation of receipt of the security referred to in Order 4(b) above, the Family Court, Brisbane Registry, shall release the children’s passports to the parent travelling overseas and that parent will return to the Court for lodgement at the Brisbane Registry the children’s passports at the conclusion of the overseas travel.
It is clear that the reference to “Order 4(b)” in order 31(c) above should be “order 31(b)”. The father also agreed that the notice in order 31(a) should read “six months” rather than “six weeks”.
The father has proposed these orders to avoid the problem that confronted him last year when the Malaysian holiday was discussed. He has suggested that these arrangements should be put in place to avoid the parties having to return to the Court on each occasion that overseas travel is contemplated. He says that six months notice should be sufficient to allow the other party to pursue any objections to the travel or to the locations involved. Deposit of a security in the sum of $10,000 would ensure that the party returned with the children from overseas.
The mother’s objection to the children being issued with passports is more fundamental. She objects to the children travelling overseas at all at the present time. She said:
I do not want the children travelling overseas in such an unstable political climate. I am concerned for their safety and do not want them to travel overseas.
Further:
Given the political climate and frequency of terrorism I no longer want the children to travel internationally.
She referred to an earlier proposal of hers for travel to Papua New Guinea being made “prior to several acts of international terrorism and Australia being identified as a target of international terrorist organisations.”
The mother suggested that the appropriate course for dealing with overseas travel would be for consideration to be given on each occasion at the time that it was proposed rather than having general orders such as those put forward by the father.
It is clear that the circumstances which confronted the father when he suggested the overseas travel for September last year were not envisaged by the parties when the consent orders were made in September 2003. Unfortunately the parties were not able to resolve the issue. As a consequence the matter is now before the Court.
In my view it is in the interests of the children to have this matter resolved now rather than have repeated applications made to the Court in future whenever travel proposals are in the wind. The children are now ten and seven. They are of an age when overseas travel and the experiences that it brings would be beneficial to them.

The mother’s objection, while understandable, could not realistically apply to all overseas locations. Such a blanket ban would not be reasonable. The protections in proposed order 31 in my view adequately cover the concerns of the mother. First she would be provided with six months notice which would give her time to seek to have any travel to inappropriate locations restrained. Second the security of $10,000 would ensure that the children return from overseas.
In my view the best interests of the two children are served by them obtaining passports which would allow for overseas travel in appropriate circumstances. Given the differences over who should hold the passports, it is sensible that they be held in the Brisbane Registry of the Family Court as suggested by the father.

Conclusion

In conclusion I have decided that changes should be made to the September 2003 orders on telephone contact, on arrangements for booking and paying for air travel for holiday and mid term contact, and for setting the dates for mid term contact. I am also of the view that provision should be made for the issuing and holding of passports for the children. I have rejected changes to alter residence arrangements, on mobile phones and to abolish cost sharing for mid term contact.
The orders of the Court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Mowbray FM

Associate:

Date: 27 May 2005