Klassen, E.G. and Brooks, V.H.

[1986] FamCA 21

In the marriage of KLASSEN, E.G. and BROOKS, V.H.

(1986) FLC ¶91-765

Full Court of the Family Court of Australia.

Judgment delivered 8 September 1986.

Before: Evatt C.J., Joske and Tonge JJ.

Evatt C.J., Joske and Tonge JJ.: This appeal is brought by a partially successful applicant before Barblett J. against that part of his Honour's order which dismissed her claim to redefine access to the only child of her earlier marriage to the respondent. At the outset it is to be noted that in the proceedings before his Honour and before this Court the applicant/appellant wife is the only party to have appeared. There can be no doubt however that the respondent husband had due notice of both sets of proceedings and of the orders sought and has chosen to allow them to proceed without offering opposition. In place of the order appealed from the appellant seeks an order conceding reasonable access by the respondent to the subject child, T, born 4 January 1977, provided that such access is taken in Western Australia and organised on one month's notice.

A summary of the relevant facts relating to the application and this appeal is as follows:

(a) On 1 October 1975 the parties, both Canadians, married one another in Winnipeg, Manitoba, Canada.

(b) On 4 January 1977 the child T was born.

(c) On 11 May 1978 the parties, whilst living in Winnipeg, separated.

(d) On 8 June 1979, on the wife's petition, a decree nisi was pronounced and became absolute on 9 September 1979. By that decree and by consent the wife was granted custody of T with reasonable and defined access being granted to the husband.

(e) Between the decree and 1985 various applications were disposed of by consent orders.

(f) On 16 November 1983 the appellant married again, in Canada.

(g) As a result of the appellant's decision to move from Canada to Perth, Western Australia, further proceedings between the parties occurred in Canada.

(h) On 12 April 1985 Mullalley J. of the Manitoba Court of Queen's Bench made orders granting custody of T to the appellant and defining access in Canada three times per year during the Western Australian May, September and Christmas school vacations.

(i) In 1985 the appellant, her husband and son moved to Perth, Western Australia as they had earlier planned and of which move the Manitoban Court was aware.

(j) On 12 September 1985 the appeal of the wife and the cross-appeal of the husband were dealt with by deleting the May school vacation access allowed by the earlier order. Neither the transcript nor the reasons for judgment in those matters were before the trial Judge or this Court. Annexure ``A'' to the wife's initiating affidavit is a copy of the appeal book in those proceedings.

(k) On 7 November 1985, in the Family Court of Western Australia, the wife filed her application for redefinition of access. An initial attempt to have it dealt with urgently with a view to suspending access failed. This has meant that since coming to Australia with his mother, T has had two extended access visits to Canada, the last one being in January 1986. Evidence of Dr H, in the form of reports, dated (apparently) 29 August 1985, 6 December 1985 and 2 April 1986, were put before the trial Judge. The earliest report was also part of the appeal book in the Canadian appeal to which we have referred. The latter two reports were obviously not before that Court whose basis for judgment was accordingly quite different from the basis on which the learned trial Judge was called upon to adjudicate. Those reports, especially the latter one, demonstrate the potential for adverse effects, upon T's general well being, of a coercive or authoritarian insistence upon adherence to a rigid access regime which involves biannual return trips to Canada.

The learned trial Judge's method of arriving at his decision was to pose for himself the questions which he saw that he had to answer. They were:

1. Should the Manitoban orders be recognised in Western Australia?
2. If the Manitoban orders do not bind the Western Australian Court, what is the forum conveniens for the application to vary the Manitoban order?

With respect to his Honour, we have doubts about the relevance of the second question, which seems to have been posed as a consequence of the wife's counsel's submission that: ``this court is by far the best place because the child is in the jurisdiction...'' In any event, having posed the questions to be answered as he saw them, his Honour, despite the fact that he felt obliged to ``recognise'' the Manitoban orders, still went on to examine the concept of the forum conveniens, which in our view, in the circumstances of this case, he had no need to do. Accordingly, we do not propose to examine that aspect of his judgment.

In coming to his decision he had no difficulty in recognising the order of the Manitoban Court of Queen's Bench. With respect, we would agree with that finding and his reasons for reaching it. He went on to say, and again we would agree, that there would need to be ``strong reasons'' for him to alter that order. In the event he found no such strong reasons to exist and therefore dismissed the wife's application to redefine access. His Honour's approach was to examine firstly, the effect of sec. 68(4)(a) of the Act in the factual circumstances which we have outlined. In so doing, he commented as follows:

``the evidence that is put before me is the evidence that was put before the Manitoba Court... I am not convinced that the journey by air, now twice a year, is so adverse to a child of nine years of age, that he should thereby be deprived of a regular association with his father, his maternal grandparents, his paternal grandparents, and the whole host of extended family who reside in Winnipeg. I have read the evidence, which is basically that of the wife and of Dr H, and I am not convinced that, weighing those two matters up, the welfare of the child would be adversely affected if I do not make a contrary access order...''

He then went on to relate sec. 68(4)(b) to the facts as he had found them and said:

``... there has been no such change in circumstances, except the observations which the wife had made of the husband not associating with the child during access. That evidence is inconclusive and incomplete... there certainly is no convincing evidence from the enquiry agents in the form that it came before this Court. By implication, the Court of the Queen's Bench and the Court of Appeal held that access was beneficial to the child.''

The terms of sec. 68(4) are:

``Where the court exercises jurisdiction in proceedings for the custody of, or access to, a child who is the subject of an overseas custody order, the court shall not make an order with respect to the custody of, or access to, the child unless the court is satisfied —

(a) that the welfare of the child is likely to be adversely affected if the order is not made; or
(b) that there has been such a change in the circumstances of the child since the making of the overseas custody order that the order ought to be made.''

It is clear that sec. 68(4) recognises the power of the Court to exercise jurisdiction over children already the subject of an overseas custody order provided that either, the Court is satisfied that failure to do so would adversely affect their welfare, or that there has been such a change in their circumstances that the original order should be varied. If the Court decides that failure to make an order would adversely affect the subject child's welfare then that is all that is necessary. Except in so far as the perceived adverse effect is seen as arising from changed circumstances, there is no need to go further to consider the terms of sec. 68(4)(b). However, in this case, his Honour, having decided that there were no likely adverse effects, felt obliged to go on and consider the aspect of changed circumstances. As indicated, he found no such changed circumstances.

In his consideration of sec. 68(4)(a) his Honour clearly discounted the evidence of Dr H and made no reference at all to the evidence of Mr A, a psychologist, neither of whose evidence was challenged in any way. The thrust of their evidence was, that, in relation to access, compulsion would be counter-productive. Although such evidence was obtained for purposes of the case, the husband, aware of its existence, chose not to challenge it in any way nor to offer an opposing view. There is no reason to suspect partiality. It stands to demonstrate that continuance of the ordered access program would adversely affect T's welfare and suggests clearly that consideration should be given to reducing the number of trips to Canada.

In discounting that evidence his Honour purported to balance the adverse effects against the apparent benefits that he assumed to flow from continuance of the regular association of T with his father and other Canadian relatives. There was however no evidence before his Honour from which he could infer such benefits. It was in those ways that the learned trial Judge erred in the exercise of his discretion.

For the purpose of completeness rather than necessity, it is appropriate to deal also with his Honour's finding that ``there has been no such change in circumstances, except the observations which the wife had made of the husband not associating with the child during access''. In so finding his Honour seemed to address himself only to the evidence relating to enquiry agents, overlooking the additional medical evidence that was put before him in the form of the affidavits of Dr H and Mr A. That evidence in our view is clearly indicative of a significant and relevant change in circumstances. Although it is dangerous to assume (in the absence of precise and complete evidence of what was before the Manitoban courts) it is clear that what was conjectural evidence before those courts about the effects of travel on T, had crystallised into firm, expert opinion of Dr H and Mr A by the time the matter came before his Honour. That evidence, standing on its own is in our view sufficient to demonstrate such a change in circumstances as to warrant suspension of the original overseas access order, until the matter can be further determined.

To a lesser extent, the same evidence raises the wishes of the child in a more reliable fashion than had been possible in the Manitoban proceedings. The lack of weight attributed by the learned trial Judge to those matters would also indicate an error in the exercise of his discretion.

Because of the circumstances of this case, the analysis needs to be taken further. Section 68(4)(a) requires that the adverse affect must be the result of failure by the Court to exercise its jurisdiction. Thus, if it could be shown that the Manitoban Court of Queen's Bench was in a position to make an order, failure by this Court to do so would not necessarily lead to an adverse effect. However, apart from the pragmatic temporal and financial considerations involved in reopening proceedings in Canada, there is a degree of urgency, demonstrated by the medical evidence and the nearness of the forthcoming school vacations, to justify suspension of the present order, by this Court, on an interim basis. The question of an appropriate access regime needs to be considered in light of the available material. It appears that there should be a revised regime to take account not only of the effects of travel on T, but also of the wishes of the appellant and T to preserve the father/son relationship in the most productive way. This has been rendered impossible by the respondent's inactivity in the proceedings to date. The urgency to which we have referred would justify an order for expedition.

Accordingly, we would order as follows:

1. The appeal of 20 June 1986 is allowed and the order dismissing the wife's application of 7 November 1985 is set aside.

2. The said application is remitted for rehearing before a Judge of the Family Court of Western Australia.

3. Pending further order, the order defining access made on 12 April 1985 in the Manitoban Court of Queen's Bench and varied by Manitoban Court of Appeal on 12 September 1985 is suspended.

4. Either party to have liberty to apply for directions in respect of the rehearing.

5. The rehearing is to be expedited.