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 to occur.

4In terms of the background facts, I refer to my judgment that was published in April 2020.

5In terms of the more recent affidavit material, the mother filed an affidavit on 15 June 2020. The salient parts of that affidavit were that N relocated to Switzerland with his mother in May 2020. The mother’s view is that he is settling in well. He started school in Switzerland [on] 20 May 2020. He is skyping his father on a regular basis. The summer school holidays commence in Switzerland in July 2020. Under the current order N is due to travel to Australia to spend time with the father now, if not before.

6The mother deposed that she has very significant concerns about the practical travel arrangements due to the COVID-19 pandemic, including her concerns that N is likely to be required to quarantine in Western Australia in a hotel [and] that his travel arrangements may disrupt N settling into his life and normal routine in Switzerland. The mother made it clear that she would agree to the father travelling to Switzerland and spending time with N in Switzerland, and that in her view the father would be able to facilitate that, given that he is also a Swiss citizen.

7The mother deposed that although the father’s solicitors advised the mother that the father had applied for exemptions to allow N to come into Australia and to self-isolate at home, those applications were not provided to the mother. The mother was unaware as to whether the father had applied for an exemption to allow N to return to Switzerland at the end of his time with the father.

8The father filed an affidavit on 6 July 2020. The salient parts of that affidavit are as follows: Firstly, the father’s primary position is that N should be able to spend time with [him] in Australia. The father, I think very appropriately and very sensibly, acknowledges the current difficulties in relation to travel, given the COVID-19 pandemic, and deposes that he has done his best to mitigate the difficulties. In his view the difficulties involved do not outweigh the benefits to N in being able to spend time with his father in Australia.

9The father’s fall-back position is that he should be able to spend time with N in Switzerland during the 2020 school summer holidays. The father deposed (and provided documentary evidence that was annexed to his affidavit) that he has been granted an exemption for both he and for N to travel to Australia and to quarantine at home. The father’s further evidence was that he has not yet obtained an exemption for N to leave Australia with his paternal grandmother at the end of spending time. The father has applied for the exemption, but has received advice that the exemption application is only likely to be processed shortly prior to departure. The father also deposed that he has now booked return airline flights for N leaving Switzerland on 13 July and returning to Switzerland on 14 August.

10The mother filed a further unsworn, but signed affidavit by her on 7 July 2020. The parties have proceeded today on the basis that each addressed that affidavit to some extent. I intend to make an order requiring the mother (as soon as practicable) to swear that affidavit so that a sworn copy can be placed on the court file. The mother raised concerns about the date that the father did actually make application for the travel exemptions into Australia. I simply observe in relation to that dispute that I am simply not in a position to make findings about that dispute on the contested evidence of the parties.

11The mother also deposed that she was prepared to facilitate the father spending time with N in Switzerland, but maintained that she was concerned about the father’s bona fides, given, firstly, other recent exchanges of correspondence regarding N’s school in Switzerland and also the father’s failure to provide documents in relation to the application for travel exemptions that he made. Again, given the nature of the disputed evidence in that respect, I am unable to make any findings in particular about the disputed correspondence.

12However, I do agree with counsel for the father that to some extent the disputed correspondence has limited relevance, save and except that it is another example of the ongoing mistrust between these parties. I made findings about [their mistrust of each other] in the course of my trial judgment.

13Since the parties have filed their affidavits, evidence of further events have also occurred. Firstly, the father’s counsel advised this morning from the bar table that the father has now flown out of Australia to Switzerland, and he was available either to collect N and to bring him back to Australia, or, alternatively, to spend time with N in Switzerland if his application today is unsuccessful.

14Secondly, and, in my view, relevantly to this matter, as I have drawn to the attention of both counsel today, that on 10 July 2020 the Australian National Cabinet announced further restrictions on international travel in and out of Australia, in particular, a cap of 525 persons a week or 75 persons a day has been placed on international arrivals through Perth International Airport. Inevitably, such a restriction on international arrivals will have a flow on effect on international departures and is likely, in my view, to lead to significant disruption to existing and future travel arrangements in and out of Perth internationally.

15I accept, as I did in my trial reasons for decision, that N has a close and loving relationship with both his parents and that he has a meaningful relationship with both his parents.

16In the context of the COVID-19 pandemic and the enormous difficulties that now present in relation to travel, I do not accept that the father’s relationship with N can only be maintained if N spends time with his father in Australia. The father is currently in Switzerland. In my view, there would also be significant benefits to N flowing from him being able to spend time with his father in Switzerland; so that N has the opportunity to show the father his local environs, including where he attends school, and to share in his daily routine in terms of living in the local environment in Switzerland.

17I accept the submission by counsel for the father that the father may, in fact, find it very expensive if he stays in Switzerland for the entire five weeks. I accept that it is an expensive proposition for him. Whilst I also accept that it would be very beneficial to N to be able to return to Australia to spend time with the father, I consider there are very significant practical difficulties in that course of action. In particular, given the most recent cap imposed on international arrivals, and, therefore, departures in Perth, I have no certainty or comfort that the current bookings will be able to be maintained by the airlines concerned.

18Currently, there is no confirmation that a travel exemption has been granted for N to depart Perth at the end of his time, although I accept that in the usual course of events that such exemption is unlikely to be granted until fairly shortly prior to [N's] planned travel out of Perth and back to Switzerland. However, given the cap, I think that there are significantly increased risks [in relation to] N being able to return to Switzerland when planned, and any such disruption in terms of his travel arrangements is likely to have a knock on effect and cause significant disruption to his life and usual routine in Switzerland, including being able to return to school and potentially, depending upon how long it may take for him to return to Switzerland, may well also cause significant disruption to his relationships with his now primary caregiver, his mother, his stepfather, and his sister.

19The final matter that I wanted to address was the submission by the father’s counsel that the court could be comforted by the fact that the father has always complied with previous orders of this court. With the greatest respect to that submission, a reading of my previous judgment would indicate that I have already found that in the past the father was not prepared to fully comply with orders of this court, albeit it related to German language classes, not in relation to travel arrangements.

20Having regard to those very significant practical difficulties [and] uncertainties in the travel arrangements, and given that governments’ responses to the pandemic almost feels like a day by day proposition at the moment, I am not prepared to enforce paragraph 10(b) of the orders made by me on 4 May 2020, insofar as it relates to the current holidays.

These reasons are the reasons for decision I delivered on 13 July 2020, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KV

Associate

28 JULY 2020