N & B - [2003] FMCAfam 73

FEDERAL MAGISTRATES COURT OF AUSTRALIA

N & B

[2003] FMCAfam 73

CHILDREN – Contact – overseas travel – mother working overseas.

Applicant:

A N

Respondent:

F B

File No:

DNM2486 of 2002

Delivered on:

31 January 2003

Delivered at:

Darwin

Hearing date:

30 January 2003

Judgment of:

Brown FM

REPRESENTATION

Counsel for the Applicant:

Ms Holtham

Solicitors for the Applicant:

Sivyer & Associates

Counsel for the Respondent:

Ms Truman

Solicitors for the Respondent:

Halfpennys

ORDERS

That the children A B-N born 14 March 1994, Z B-N born 8 September 1999 and N B-N born 3 May 2001 live with the wife.
That the husband have contact with the children on the following basis:
(i)from 5.30pm each Tuesday until 5.30pm the following Wednesday;
(ii)from 9am to 5pm each Sunday;
(iii)for four hours on each of the children's birthdays;
(iv)by telephone at all reasonable times;
(v)on each alternate Christmas Day beginning 2004;
(vi)at other times as may be agreed.
That the husband's contact with the child, A, be at the discretion of the said child.
In the event that the wife's Christmas Day contact with the children in alternate years commencing 2003 occurs on a day which falls within the husband's contact pursuant to orders (2)(i) or (2)(ii) then the husband shall have similar contact in lieu on another day.
That each of the parties have responsibility for making decisions concerning the day to day care, welfare and development of the children whenever the children are in their respective care.
That the parties retain joint responsibility for making decisions concerning the long term care, welfare and development of the children.
That in the event that any of the children are hospitalised for any reason or become seriously ill or injured, the party with whom the children are living at that time immediately notify the other parent and the other parent is at liberty to visit that child daily during periods of hospitalisation or recuperation.
That each party provide to the other at all times their respective residential addresses and contact telephone numbers.
That should the wife obtain employment interstate or overseas requiring her to travel away from the children then the maternal grandparents J B and M I M B shall have residence of the children for such period and be responsible for making decisions in relation to the children's day to day care, welfare and development when the children are in their care.
That the husband is at liberty to contact the respective schools that the children attend and make arrangements to have copies of all school reports delivered to him in respect of the said children.
That the husband is at liberty to visit the school or schools attended by the said children from time to time for parent teacher interviews, events, activities or functions routinely attended by parents and for that purpose the husband be at liberty to contact the school or schools attended by the said children and request that a copy of all such information be delivered to his address.
Without limiting the parental responsibility of either parent pursuant to these orders herein each party shall keep the other informed of, and shall properly consult with the other with respect to any significant parenting issue affecting the children including but not limited to (i) any serious medical or health matter concerning any of the children; (ii) matters relating to the school at which the children should attend; and (iii) religious activities, ceremonies and instruction save and except that the children should be permitted to choose their respective godparents for each relevant religious ceremony.
That if any of the children's birthdays occur on a Wednesday or Sunday the husband shall return the children to the wife at 3.30pm on those days.
That the wife provide to the husband details of all sporting commitments in which the children are involved, the venue at which those activities take place and the time or times at which they take place seven days prior to such activity and the husband is at liberty to attend such activity.
That the wife be permitted to travel interstate or overseas with the children for a total period of eight weeks each and every year without first obtaining the written consent of the husband provided the wife provides fourteen days notice in writing of such intention to travel to the husband together with details of the length of travel and the date of the children's return.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DARWIN

DNM2486 of 2002

A N

Applicant

And

F B

Respondent

REASONS FOR JUDGMENT

There are extempore reasons for judgment in the matter of N and B.

It is my obligation to explain to the parties the reasons for the orders that I am going to make this morning. It is in many ways an unusual case. The parties to the proceedings are A N to whom I will refer as “the husband” and F B to whom I will refer as “the wife”. The parties are the parents of three children, namely A B-N who was born on

14 March 1994; Z B-N who was born on 8 September 1999; and N B-N
who was born on 3 May 2001.
The parties married on 9 October 1993 and separated around June 2002. There is no doubt that the children have a close relationship with their maternal grandparents, M F B. Mr and Mrs B live at 15 T Street, M. I have no doubt that Mrs B, in particular, has played a central role in providing care for each of the children from the time of their respective births. However, neither she nor her husband have chosen to intervene in these proceedings. They do not seek any orders in respect of the children and support the position that has been adopted by their daughter.
As I understand matters, 15 T Crescent, M, is the only home either Z or N have known. A was born in Sydney but he too has spent a significant proportion of his life in Darwin. The parties are each of East Timorese descent, although the husband and thus the children have connections to Angola. Each of the children was born in Australia and each is an Australian citizen and as a consequence the holder of an Australian passport. Although, due to the circumstances of their parentage, they also hold Portuguese passports and are entitled to apply for passports from East Timor.
As I say, I am satisfied that the maternal grandparents are central to the well being of the children. The parties each recognise this and it is envisaged that the children will continue to live predominantly with their maternal grandparents at M and that Mr & Mrs B will continue to provide the children with a significant amount of care. The proceedings are between the parties themselves and the grandparents are not parties to the proceedings. However, it would be artificial for me to ignore the role that Mr and Mrs B have played in the life of the children to date and will continue to play.
It is apparent to me that the circumstances surrounding the separation of the parties is still difficult for them. Sadly the parties have difficulty in communicating easily with one another. That is not unusual when parties are recently separated. Because the parties agree that the children will continue to live with their grandparents, it would be better in the long run, if the parties could cooperate with one another in respect of their care so that each of them can play as large a role as possible in the lives of the children as they grow up and develop. Up until the time the parties separated, the husband lived with the maternal grandparents in the T Crescent property. Since the parties separated, he has lived in rented accommodation not very far away.
The wife and the children and their grandparents continue to live in the T Crescent property. At present they share these premises with the children's aunt and her three children so there are four adults and six children living in the property at the present. I have no doubt that it is a happy and close knit family.
On 14 April 2002 I made interim orders that allowed for the children to live with the wife and have regular contact with the husband each week. At that time, I provisionally formed the view that the maternal grandparents were of great importance to the children and their care and for that reason I made an order that, should the wife be employed interstate or overseas, the maternal grandparents should have the residence of the children for the time the wife was away and should be responsible for making decisions concerning their day to day care, welfare and development.
I made that order because I thought that it recognised what was essentially the reality of the situation - that Mr and Mrs B were the people who had at that time the most significant input into the care of the children - that is not to say I regard the input of the parents as being unimportant, but for reasons which I will come to in a moment, Mrs B in particular, has assumed a very central role in the lives and development of the children.
The wife herself is an able and well-qualified person. She has a strong personality. She has previously been involved in international finance, particularly of late in relation to the reconstruction of East Timor. At times between 1999 and May 2002, she worked overseas. She was the principal breadwinner for the family. During that time the husband was largely in Darwin and obviously saw the children regularly, as he was living with the children's grandparents. Whilst the wife was away, from time to time, she visited Darwin to renew her connections with the children. However, I have no doubt that she was very busy because of her work. During this time she received offers of work, particularly with the United Nations and other international financial organisations. She was for a time the Minister for Finance in East Timor.
When the parties separated, they were in dispute as to with whom of them the children should live. It was the husband's position that it was in the best interests of the children that they should live with him. However, it was the wife's position that the continuity of arrangements for the care of the children should be maintained and as a result they should continue to reside in their maternal grandparent's home with her. As a result of the difficulty between the parties, they sensibly commissioned a report from Ms K, who is a psychologist. I have read her report.
Ms K interviewed all the parties concerned, including the maternal grandparents. Mr and Mrs B believed that it was best for the children to stay predominantly with them and their mother in M. Ms K stated in her report that the wife indicated to her that she had no intention of removing the children from Darwin and the care of her parents. The wife also indicated to Ms K that, in the event of her moving away from Darwin, she would be comfortable with the idea of leaving the children with her parents and further that she was satisfied that the children had a strong bond with their maternal grandparents and the grandparents were providing a familiar and secure environment for the children.
Ms K also interviewed the oldest child, A, and observed the father with the two younger children, N and Z. In respect of N , Ms K was of the view that he had a close and comfortable relationship with his father and a strong bond with his grandmother. Ms K was not concerned about N moving backwards and forwards from his maternal grandparent's home to his father’s. She was perhaps a little more guarded in respect of Z. She thought that he had made a relatively good adjustment to the parties’ separation and was coping with the transition between the two homes. However, it was clear to her that, unfortunately at this stage, A and his father had become estranged from one another following the parties’ separation.
The parties have obviously digested Ms K's report and have valued it. To their credit, I think, each of the parties recognise that stability for the three children concerned is the most important consideration and that this will be provided by them remaining in the environment which they know and that is the environment of the grandparent's home in M. In her recommendations, Ms K indicated that, at the present time, the husband is not able to provide adequate accommodation for the children and on that basis alone it was her recommendation that the children should remain living as they are. The parties have recognised this in the orders to which they agreed yesterday and will be made today, with their consent.
Essentially they agree that the interim orders should become final ones, except as regards A. They have agreed, that given A's age, contact between him and his father should be at A’s discretion. The parties have also agreed that the children should reside with their mother. But in the event that the wife is employed interstate or overseas the children should live with their grandparents. They have also agreed a number of other specific matters which I need not read out at this stage. They have also reached agreement in respect of arrangements for the children's birthdays, which was previously a matter of dispute between them.
Having indicated the nature of the agreement between the parties, it is implicit that it is the wife's position that she will leave Darwin from time to time, almost certainly for extended periods of time. This is what she says in her affidavit:
“Due to my qualifications and experience it is more than likely that any future employment will involve me residing outside of Darwin and possibly outside Australia. It is my hope that should I leave Darwin I will obtain employment that allows me to return to Darwin on a regular basis to spend time with the children at my parent's home. In addition I would seek orders enabling me to take the children for a maximum period of eight weeks throughout the year to wherever I was working at the time so that the children could understand and appreciate where I was living and working when I was not living with them.”
In her evidence yesterday, she indicated that she was considering applying for work with the World Bank, the International Monetary Fund or the UN. As I understand her evidence, it is highly probable, that she will be offered work overseas. Possibly in North America or in Western Europe. She also may be offered employment interstate within Australia. She is, however, adamant that there is no suitable work for her in Darwin. It is her position that financial necessity compels her to seek work and that the most appropriate work for her, and by necessary implication, the most remunerative, will be either interstate or overseas.
As I say, it is her position that the best interests of the children dictate that they should remain in Darwin in the care of her parents. However, it is also implicit in her position that the children need to be financially maintained, and she is and has been in the past, the principle source of that financial support. From her perspective, the best place from which she can provide the necessary financial support is from either overseas or interstate.
If she is working overseas or interstate, it is her position that it is in the best interests of the children that they have an opportunity to see her where she will be living, in order to have an understanding of the circumstances of her life; be able to meet people with whom she works and has become friendly, so as the children grow up and develop, they will be able to put their mother in context and understand the nature of her life when she is inevitably parted from them. By this I take it, she means that she will talk to the children on the telephone in Darwin, perhaps she will send them letters or emails, she will describe her experiences and the people she meets. She says that it will be in the best interests of the children as they grow older, for them to be able to put faces to the names she mentions in her phone calls and letters and be able to see for themselves the places which she mentions and describes to them.
In this way she hopes the children will feel a sense of connection to her and what she is doing. In the long run, she says, this will give the children a greater sense of identity and will enhance their relationship with her. As I say, she is a person of strong personality. I do not mean this in a derogatory sense in any way. She has done important work in the past. She wishes to do important work in the future. This will no doubt lead to her feeling a sense of fulfilment in her life. Without wishing to be trite and obvious, a fulfilled and happy parent is a better one. However, as I said at the outset, this is an unusual case. Sadly from the wife’s point of view, she sees her destiny in this regard as being elsewhere from where the children predominantly live.
To maintain her and the children's sense of connection with one another, she believes that it is essential for the children to be able to come to see her “in situ”, wherever she may be. At the present time, she cannot say where that will be, because she does not know what work she will be offered. She has not yet formally applied for work. It is her position that she has, to some extent, been treading water until these matters can be sorted out. She will arrange the travel of the children to wherever she is working in future, at her expense. If appropriate, and she concedes that it most likely will be, given the ages of the children, she will arrange for her mother to come with the children to assist them with the necessary travel and to give them a sense of stability and security.
She also says she would endeavour not to clash her plans unduly with the children's schooling and that, of course, particularly pertains to A at this stage. It is for all these reasons that she seeks the order that she be permitted to travel interstate or overseas with the children for a total period of eight weeks each and every year without first obtaining the written consent of the husband, provided she provides 14 days notice in writing of such intention to travel to the husband, together with details of the length of travel and the date of the children's return.
For his part the husband opposes this order. His position is that the proposal that the wife makes is too nebulous, and unclear. He does not know to where the wife proposes the children will travel. He does not know what circumstances will prevail in the particular country concerned at the time. In general terms, he has no objection to countries in North America or Western Europe. He is concerned about other countries, particularly East Timor and given the wife's obvious connections with that country and her experience there, he believes that it is likely that the children will travel to East Timor in future. He is concerned about how secure East Timor will be in future and how safe for the children.
But essentially, it is his position that he is not in a position to agree to such an order, because he cannot assess or gauge what will be the disruption to the children at this stage, without knowing all the details and particulars of the proposed travel. In particular, he is concerned about the two younger children, Z and N. As I have indicated, he has had substantial input into the care of those two children and is seeing them regularly. He is concerned about the possibility of his attachment to the children being disrupted by any period of travel of up to eight weeks. I also suspect that he feels somewhat disempowered by the proposed order itself and he would like to have some input into decisions regarding travel that the wife may wish to undertake with the children on “a proposal to proposal” basis.
The bottom line from his point of view is that, given the ages of Z and N in particular, and the fact that in the past the wife, when she has been working overseas the wife has always returned to Darwin to see the children, that this is the situation that should continue for the foreseeable future. It is for that reason, he seeks an order that the wife and the maternal grandparents be restrained and an injunction be granted restraining them from taking the children outside the Commonwealth of Australia, without first obtaining his written consent or a Court order.

It is the wife's position that the husband wishes to unduly interfere with her entitlement to live how and where she wishes. She points to past difficulties that the parties have had in reaching decisions about the children. She sees the order that the husband seeks as being unnecessarily trammelling of her and what she asserts will be her good judgment in respect of the children concerned and where and when it is appropriate for the children to travel. She asserts that she would not knowingly place the children in danger, certainly not in East Timor. The parties are in dispute about many things, one of which is the situation in East Timor. I am not in a position to resolve that, certainly I am not in a position to resolve the issue as to what the political and social situation will be in future in East Timor.
However, the children have an East Timorese heritage. They have relatives in East Timor and from the wife's evidence I understand that some of those relatives may be growing old or be in poor health. However, I have not got a specific proposal about East Timor. I have not got a specific proposal about anywhere in particular. The husband has also raised concerns that the wife may not return the children to Australia as she said she will. The issue of the return of the children to Australia is one that is governed by the provisions of international law and in particular the Convention on the Civil Aspects of International Child Abduction, more normally known as the Hague Convention. It is the husband's position that he does not know if any, or all of the countries which the wife wants to live in or visit in future are signatories to the Hague Convention. So the bottom line from his position is that he says that the wife’s proposal is just too uncertain and as a result I should not make the order that the wife seeks.
There is another issue between the parties, which is to a large extent subsidiary to the issue of travel and that concerns the communication of information regarding the children's sporting events between the parties. As I say, it is apparent to me that there are difficulties between the parties in communicating easily with one another. In the past there have been particular difficulties concerning a commitment one of the children had for swimming. The child arrived with all the accoutrements of swimming, they are not very many, bathers and some goggles, during one of the husband's contact periods. He felt put out that he did not know about the arrangement for the child to go swimming. He has plans to do things with the children during his contact periods.
However, in his evidence he agreed that it is good for children to learn how to swim; it is good for them to enjoy swimming; it is good for them to enjoy sporting activities together. He also said that he would like to be able to see his children taking part in their sporting activities in future. That is only natural and normal for a parent. I think what the issue shows is that there are difficulties between the parties in communicating with one another and there is still some level of mistrust between them. I think the mistrust is probably stronger on the husband's part than the wife's. I think that the issue can be dealt with quite quickly and anyway I think in future the children will most likely dictate what sporting activities they want to do. They will say to their parents they want to do x, y or z sport, and in my experience they will probably change their mind about what sports they want to do anyway.
I think it would be of the greatest benefit to the children if they had a sense that both their parents are interested in the activities they do.

I hope that the rift between A and his father can be mended and sport may be a way of doing that. So I think the sporting issue can be dealt with quite easily by making an order that the wife provide the husband with details of the children's sporting commitments, where they are going to take place and the time at which they take place, seven days prior to such activity, and the husband be at liberty to attend such activity.
I suppose at the end of the day, if it is not convenient for the children to go to some sporting activity or other, during his periods of contact, that is a matter for him, which he will have to negotiate with the children. But I would have thought that, from what I understand his position is, he would enjoy taking the children to sporting activities.
Having raised the issue about communication between the parties about something as comparatively simple as a sporting activity – that is attending a swimming pool and the location of that swimming pool – the issue of overseas travel becomes a much more difficult one. It is,

I think, a major consideration for parents to consider overseas travel for children, who are quite young, particularly from the perspective of the parent who is not travelling, in this case the husband. And in a case such as this one, where there is a difficulty in communicating between the parties, I can well understand why the husband would be very concerned about the lack of clarity about the wife's proposals.
Both parties seemed to me to be very pleasant people and I have absolutely no doubt that they are honest people. I accept the evidence that they both gave as truthful. They are, I think, also each devoted parents and the children concerned are lucky to have parents who are so devoted to them. One of my functions is to encourage the relationship between the children and their parents regardless of the circumstances of the parents concerned. That is to say children have a right to maintain a relationship with both their parents, regardless of whether their parents are married, separated or indeed have never lived together. In this case, I am concerned that the animosity between the parents may have adverse consequences for the children concerned.
In this case, I think that each of the positions the parties has adopted has validity. I think the wife's position – that she needs to have the knowledge that – the children will be able to come to her each year wherever she is has validity. On the other hand, I think the husband's position that he does not know the fine detail of the proposed travel – where the children will be and in what country - also has validity. To a certain extent he feels, to use a colloquial expression, “left out of the loop”. And as I say, it is clear that the parties at this stage have difficulties communicating with one another. I am not critical of them for that. Separation can be a difficult and painful process.
But I think I have to be careful not to make things worse rather than better, in both the short and the long term. Ms K herself did allude to these difficulties in her report and, in particular, it was her view that Mr N was adjusting to what had happened in respect of the end of his marriage. He has my sympathy in that regard.
Having made these comments, I think it is now appropriate for me to briefly set out the law that is applicable to these applications and which I must apply in this case.
Applications for contact orders and specific issues orders are parenting orders. They arise under proceedings conducted under Part VII of the Family Law Act, which is the part of the Act which deals with children. Section 60B(1) of the Family Law Act sets out what are the objects of the Family Law Act. They are, if you like, the under-pinning and basis of the more specific law relating to children.
The object of the Family Law Act is to ensure that children receive adequate and proper parenting to help them achieve their full potential and to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
In this case the parties do not agree about one significant issue. I am mindful that I should be careful not to act as a barrier to the parties reaching future agreement. It seems to me that the parties are both reasonable and intelligent people.
In deciding the contact and other arrangements in respect of A, Z and N that will best promote their best interests, the court must consider the various matters set out in section 68F of the Family Law Act. The various subsections contained in section 68F(2) comprise a list of the matters the court must consider in each case regarding a child. The matters are to be considered to the extent that each is relevant to a particular case.
As each of you can appreciate, there is an infinite variety of individual children’s circumstances. The hope is that orders can be individually tailored to each child’s circumstances and the circumstances of his or her parents, in order to ensure that the result that is in the best interests of the child is achieved. The matters that are to be taken into account under section 68F(2) are:
1)the wishes expressed by any child concerned;
2)the nature of the relationship between the child with his or her parents;
3)the likely effect of any change in the child’s circumstances;
4)the practical difficulty and expense of a child having contact with a parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
5)the capacity of each parent or any other persons to provide for the needs of the child, including the child’s intellectual and emotional needs;
6)the child’s maturity, sex and background;
7)the need to protect the child from physical or psychological harm;
8)the attitude of the parties to the responsibilities of being a parent;
9)any family violence that may involve the child or a member of the child’s family;
10)whether it will be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child concerned.
The matters under s.68F(2) that seem to be particularly relevant in this case are as follows:

The nature of the relationship between the children and their parents

This is a somewhat unusual case in that two of the most significant people in these children's lives are not parties to these proceedings. They are the children’s maternal grandparents. The parties recognise that this relationship is central to the well being of the children and they each are desirous of it continuing.
I also think the children, particularly N and Z, have a close relationship with their father. The relationship between A and his father is severed at present, but I hope that that can be remedied in future.
I also have no doubt that the children, in spite of disruptions to the relationship in the past, have a strong relationship with their mother. She has endeavoured to maintain her relationship with her children in the difficult circumstances of her having to work overseas, from time to time. She had to answer the call of her country when it was in need and to a large extent put her own needs and wishes behind those of the needs of her country. However, she has also, in my view, gone to great lengths to maintain her relationship with her children and as a result of her efforts that it is a strong relationship. And, in the context of her proposal, I have to bear in mind the strength of that relationship.
In this context, I also have to bear in mind the relationship between the father and the two children. There is no doubt he has a strong relationship with the two younger children. It is his position that that relationship may be damaged by the periods of time away that the wife seeks of up to eight weeks. That is not a concern with A who obviously being an older child will not forget who his father is.
There is no specific evidence in this regard of an expert nature. But I would be doubtful that a period of eight weeks, even though N is not yet two years of age, would unduly disrupt the relationship between father and child. In any event, this has to be balanced by the fact that the children's mother will not see the children for very much longer period than of eight weeks. So I think it is incumbent upon me to recognise the unusual circumstances of this family.

The likely effect of any change in the children’s circumstances

That brings me to the next matter I think is relevant in this matter and that is the likely effect of any change in the children's circumstances, including the likely effect on the children of any separation from either of his parents or any other person with whom he has been living.

I consider this sub-section in the context of the children going away from Darwin for periods of up to eight weeks, most likely with their grandmother. For the reasons I have already provided, I do not think that is likely to have a detrimental effect on the children in terms of their relationship with their father. In my view, given the relationship of the children with their mother regular visits to her, wherever she may be are likely to enhance the children’s relationship with her. In that sense the change will have beneficial consequences.
I accept that the mother is concerned about being away from her children. She is not a cold-hearted career person as I think perhaps tacitly, the husband wishes to portray her. I think it is likely to be of benefit to the children to see their mother, particularly as they get older, in the context in which she is working. I will come back to that issue in a moment.

Practical difficulties of contact

I have also to deal with the practical difficulties of contact itself. Although the parties have settled residence between themselves, one of the unusual aspects of this case, is the mother, who has a residence order is, in effect, asking for a contact order in her favour.
In terms of the cost of contact the wife will bear those. She will also deal with the practical aspects of contact, in terms of arranging for her mother to accompany the children and booking the necessary tickets and making arrangements. There is the issue of school. School is obviously important for the children. It is important the children get into the routine of going to school. The husband is critical that the children's schooling may be interrupted by the wife’s proposals in future for travel. I accept that the wife will endeavour to minimise that disruption and will endeavour, as best she can, to coincide with the school holidays.

Children’s maturity, sex and background

I have to consider the children's maturity, sex and background. In this regard the children have an East Timorese background. The parties I think, identify themselves as being East Timorese. Although the wife's future proposals for work are uncertain, I think it would be naive of me if I did not think there was a strong possibility that she would be involved in work relating to East Timor. That may be very important work. I think, as I have already said, that it would, as the children grow older, be of benefit to them to see their mother working in that context. It would be useful for the children to have an opportunity to appreciate the work the mother may do in assisting the financial reconstruction of East Timor. This may instil some pride in them for their mother and what she does and may enhance their sense of identity and connection to East Timor.

Orders least likely to lead to further proceedings

I also have to consider which order is the most preferable one to make in the sense that it will be the order that will be least likely to lead to the institution of further proceedings. I am reluctant to become the arbiter of every matter that may in future come into dispute between the parties. It is essentially the husband's position that each application for travel should be determined on a case to case basis. He wants to be able to say no or yes to every proposal or suggest changes. It is the wife's position that she wants to have, as it were, a blank cheque, so that she can travel when and where she wants. She says that it will be unduly onerous for her to have to come back to litigate every single issue about travel and she says, looking at the swimming goggles incident as an example that that would be the likely consequence of making the order the husband seeks.
I am concerned about the uncertainty of the wife's proposals. Obviously circumstances change from time to time. There may be very many things that nobody has thought of that may occur in future and which may give great validity to concerns that the husband presently has – particularly about the children not returning to Australia. People do form new relationships and they do form connections in other places. However against that, it is undesirable for the parties to have the need to have recourse to frequent litigation in future. Litigation is expensive, both in financial and emotional terms. As I say, one of the things that I have to do, is to encourage the parties to reach agreement with one another about arrangements for their children. Ideally, they are better placed to know what is likely to be in the children's best interests than I am. They after all know and love their children.
Although it was decided prior to the amendment to the Family Law Act, I think that the case of Kuebler & Kuebler (1978) FLC 90-434 still provides useful assistance to me in determining this matter. That was a decision of the Full Court of the Family Court, which was comprised of Ash SJ and Gunn, Yuill JJ. At page 77,205 Ash SJ said this:
“In my view, the considerations that should be given to an application which involves the custodial parent taking a child out of the jurisdiction, without being exhaustive, would be these:
(a)The length of the proposed stay out of the jurisdiction;
(b) The bona fides of the application;
(c)The effect on the child of any deprivation of access;
(d)Any threats to the welfare of the child by the circumstances of the proposed environment;
(e)The degree of satisfaction in which the Court based its assessment of the parties with a promise of a return to the jurisdiction would be honoured.”
I now turn to consider each of those considerations. The order that the wife seeks is for a period of eight weeks out of Australia with the children. Given the ages of the two younger children, I do not think that this will gravely disrupt their care and, as I have already indicated, I do not think a period of eight weeks will do a great deal of damage in terms of the relationship or attachment between the children and their father. I suppose eight weeks taken in the middle of a school term might be disruptive to the older child A. I am not really in a position to assess that, apart from the fact that the wife has said that she will try not to disrupt the children’s schooling. As I have found by any period of time she takes her to be a competent and reasonable parent, I think that I have to give her assurance some weight. I do not think that she is a person who puts her own needs before the needs of the children. I do not think that it is likely that she will, at a whim, pluck the children away from here and out of school.
I have to consider her bona fides. It is not unknown for people to make applications of this type and then spirit the children away from their country of normal residence and from their relationship with the other parent. However, I do not think that the wife is a person of that type. She has worked overseas in the past, she has returned. She has made arrangements with her mother to ensure the continuity of the children's care. In many ways, by seeking to have the children remain with their grandparents, the wife is putting the children's needs before those of her own. The children are each Australian citizens, they travel on Australian passports. I accept that the wife, although she is proud of her East Timorese background, sees herself as an Australian citizen as well. She has been regularly employed in Australia. She has strong connections with Australia. As I have already said, people's allegiances do change and they do form new relationships. That is a concern to me and is something that militates against me giving the blind imprimatur that the wife seeks. However, at this stage, I do not doubt the bona fides of her application. I do not think that, at this stage, it is a Trojan Horse to spirit the children away from this country.

I have to consider the effect on the children concerned of any deprivation of contact. One of the benefits of the wife's proposal is that the children may have more contact with her than they ordinarily would have. I think for the reasons that I have already provided, the children would be able to weather the effects of not seeing their father for eight weeks. As I have already said, I accept that the two younger children, in particular, have a close relationship with their father.

I have to balance that with their relationship with their mother. In my view, it will be of great benefit for the children to see their mother in her overseas or interstate context. This will outweigh any potential detriment to the children of not seeing their father for eight weeks.
I have to consider any threats to the welfare of the children by the circumstances of the proposed environment. One of the difficulties in this case is that I do not know the circumstances of the proposed environment. The children may be seeing their mother in New York or Geneva or somewhere in Western Europe or North America. It is hard to see that there would be any extraordinary threats to the welfare of the children in environments such as these. I have already indicated that the husband has concerns about East Timor, in particular, and I think I would be naive if I did not think that at some stage the wife would not want to take the children there. Her work is likely to be concerned with East Timor. The children have been to East Timor in the past with their mother.
I think in assessing the type of threat that is envisaged by the husband, I have to consider the wife herself. Is she the sort of a person who would naively or negligently expose her children to danger? Is she the sort of person who, through her work, would bring the children into a dangerous situation? I do not believe that she is. I think she is an intelligent person. I think she is a devoted parent. I do not think that she would, without thought, place the children in any danger. The difficulty in cases like this, is that danger is very much viewed in the eyes of the beholder. People who do not know what the situation actually is in a particular place, will see more peril there than a person who is on the ground there. When there are difficulties in communication between parties, mistrust grows and with mistrust grows fears.
That is a concern to me, because if I make the order the wife wants,

I am concerned that the husband will feel that he has been left out of the loop – that his position as a caring and concerned parent has been disregarded. At the moment he does not trust the wife – that is implicit in his position – he does not trust her judgment. But as I say, I believe on the material that I have assessed, the wife is likely to make a rational assessment of any potential danger to the children and she will not arbitrarily expose these children to danger.
Finally, I have to be satisfied that a promise made that the children will come back to their ordinary country of residence will be honoured. The great imponderable in a case such as this is the obvious one of people changing their circumstances and forming new relationships and as a result deciding to live permanently in another country. There is a certain appeal in the husband's position that each proposal should be dealt with on its merits and careful consideration be given to it, because circumstances do change. Against that, it is undesirable I think, for the parties to be always ready to come back to Court. It is sadly the case that there are people who, every Christmas when the holidays come around, make an appointment for some determination to be made about where the children will spend their Christmas holidays. That is not desirable.
The situation of the parties is unusual. I think at this stage that I can be satisfied that the wife would honour her undertakings. As I said at the outset, she is an honest person. I have to perform a balancing exercise between all the competing factors and arrive at a result that I think is in the best interests of these children concerned. It is important that these children maintain their connection with their mother and I think, as the children grow older, that they see her in a variety of contexts. I think there is much to be said for the wife's evidence in regards to her desire for the children to see her where she lives and works. As the children grow older they may have much to be proud of in their mother.
My assessment of the wife is that giving her the entitlement that she seeks, she will not abuse it. My assessment of her is a positive one.

I respect the position that the husband has taken, I do not think he is an unreasonable person. I think he is a loving parent. I hope he plays a greater role in future in these children's lives. He certainly has the capacity to play a larger role than perhaps the wife does, because he is going to be in Darwin.
This is an unusual case but I am satisfied for the reasons I have given that it is appropriate that the orders as set out at the commencement of these reasons for judgment be made.
I have decided that the orders in respect of the husband’s contact to A be at his discretion at the same time as his contact with Z and N or as agreed between the parties. Now, I do that for these reasons. It may be that A may want to go along with his two brothers for contact. There may be rapprochement reached in this way. However, in their judgment, the parties might think it is better for the husband to see A alone in some other context, such as at soccer or whatever, on a one to one basis. As I understand the position of the parties it is that they are waiting for A, to a certain extent, to make the initiative.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: Lynnette Chin

Date: 13 March 2003