GILLAM and WAXWEILER (ENFORCEMENT) - [2020] FCWA 131

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: GILLAM and WAXWEILER (ENFORCEMENT) [2020] FCWA 131
CORAM: SUTHERLAND CJ
HEARD: 13 JULY 2020
DELIVERED : Ex tempore
FILE NO/S: PTW 5345 of 2014
BETWEEN: MR GILLAM
Applicant
AND
MRS WAXWEILER
Respondent

Catchwords:

ENFORCEMENT OF PARENTING ORDERS - Ex tempore - Father seeking that child travel from Switzerland to Western Australia pursuant to spend time with orders - Significant risk of disruption to child's travel arrangements due to COVID-19 pandemic - Father already present in Switzerland and able, under the orders, to spend time with the child in Switzerland - Application refused - Case turns on its own facts

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms Gray
Respondent	:	Mrs Farmer

Solicitors:

Applicant	:	Tolcon Legal
Respondent	:	Anthony R Clarke

Case(s) referred to in decision(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gillam and Waxweiler been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

1In this matter I am effectively asked to determine an enforcement application in relation to [N], who was born [in late] 2010. In brief, the background to this matter is that I handed down reasons for decision on 30 April 2020 after a defended trial that took place over several days in January 2020. On 4 May 2020 I made orders pursuant to judgment that permitted the mother to relocate with N to her home country of Switzerland. An issue has now arisen in relation to N spending time with his father during the Swiss summer school holidays, and, in particular, on the basis the father seeks to exercise his option under the order to spend time with N in Australia.
2Although the mother filed first in time for the purposes of the hearing today, the father’s Form 2A response is treated as his enforcement application. His application was filed on 6 July 2020. The mother’s Form 2A application is, effectively, being treated as a response. It was filed on 15 June 2020. The father seeks that paragraph 9(b) and 10, and, in particular, paragraph 10(b) of the orders that were made by me on 4 May 2020 be enforced, and the effect of which is that he be permitted to spend time with N for the Swiss summer school holidays in Perth, Western Australia.
3The mother, on the other hand, proposes the suspension in particular of paragraph 10(b), such that N would not travel to Perth for the purposes of the [Swiss] summer school holidays in 2020. Both parties appear to concede that if the father is unsuccessful in enforcing that the time occur in Australia, then the time can occur in [Switzerland]. The orders as made on 4 May 2020 permit that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCWA 131
Decision Date: 13 JULY 2020

CaseChat Overview and Summary

The case of Gillam and Waxweiler (Enforcement) involved a dispute over the enforcement of parenting orders, specifically regarding the requirement for a child to travel from Switzerland to Western Australia to spend time with her father. The matter was heard ex tempore, reflecting the urgency and exceptional circumstances of the case. The father sought to enforce the orders, arguing that the child should travel from Switzerland to Western Australia, while the mother opposed this, citing concerns about the COVID-19 pandemic and the potential risks associated with international travel.

The primary legal issue before the court was whether the parenting orders should be enforced in a manner that required the child to travel from Switzerland to Western Australia, given the extraordinary circumstances of the COVID-19 pandemic. The court had to balance the statutory requirements of the Family Law Act to enforce parenting orders against the practicalities and potential risks of international travel during a global health crisis. The court also needed to consider the father's ability to exercise his parenting time in Switzerland, as permitted by the orders, and whether this alternative arrangement was sufficient to meet the child's needs.

The court found that enforcing the orders in the manner sought by the father would involve significant risk and disruption to the child's travel arrangements due to the COVID-19 pandemic. Given that the father was already present in Switzerland and could exercise his parenting time there, the court concluded that this alternative arrangement was sufficient to comply with the parenting orders. The decision turned on the unique facts of this case, where the father's presence in Switzerland provided a viable and less risky alternative to international travel.

The court refused the father's application, emphasising that the case's outcome was heavily influenced by its specific circumstances. The final orders reflected the court's determination that the existing arrangements for the father to spend time with the child in Switzerland were adequate and that enforcing the orders to require travel from Switzerland to Western Australia was not necessary or appropriate in the current global health context.

Orders