M and T
[2003] FMCAfam 204
•1 May 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & T | [2003] FMCAfam 204 |
| FAMILY LAW – CHILDREN – Mother has final parenting order that enables the child to live in Hong Kong with her – child has holiday contact to father in Australia – father applies for interim order alleging SARS epidemic poses unacceptable risk – nature of risk assessed – application dismissed. |
| Applicant: | R J M |
| Respondent: | R L T |
| File No: | PAM1770 of 2003 |
| Delivered on: | 1 May 2003 |
| Delivered at: | Parramatta |
| Hearing date: | 1 May 2003 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Solicitor Advocate for the Applicant: | Mr I. Bullock |
| Solicitors for the Applicant: | Ian Bullock Partners |
| Counsel for the Respondent: | Mr P. Batey |
| Solicitors for the Respondent: | James Richardson |
THE COURT ORDERS:
That the applicant father return the child L T, born 9 February 1994 “the child” to the mother by 7:00pm tonight.
That the father return at the same time the child’s passport and airline ticket.
NOTATION:
I note that the mother will provide the father with contact to the child between 10:00am and 8:00pm on Saturday 3 May 2003.
THE COURT FURTHER ORDERS:
That the applicant father pay the respondent’s costs in the amount of $2,220.00 within two (2) months.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM1770 of 2003
| R J M |
Applicant
And
| R L T |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally.
The application
This is an application for an interim parenting order that relates to the parties' only child L S T, born 9 February 1994. L lives with his mother and has always done so. He last lived with his father on a full-time permanent basis in late 1996. This is when the parties separated.
Since late January 2002 L has lived with his mother and stepfather in Hong Kong. These living arrangements were made after a contested hearing in the Family Court of Australia. On 21 December 2001 final parenting orders were entered which in essence provided:
·That L live with his mother and that she be able to take him with her to live in Hong Kong;
·That the father have contact with L in Australia at specified times particularly during school holidays; and
·At other times in Hong Kong as suited the parties.
The orders made on 21 December 2001 are set out below:
1.The mother is at liberty to take the child L S T born 9 February 1994 out of Australia for the purpose of residing with L in Hong Kong and the orders of this Court of 2 March 2001 are discharged.
2.While ever L resides outside Australia his contact with the father is defined as:
(a) during the first half of each summer vacation of NSW public schools vacation commencing in an odd numbered year and during the second half of each such vacation commencing in an even numbered year;
(b)During the whole of every other NSW public school vacation;
(c)Each year for a block period of up to one week in Hong Kong in school terms to be nominated by the father by at least 2 months written notice to the mother;
(d)Reasonable day contact in Hong Kong;
(e)Reasonable contact if L visits Sydney outside school holidays;
(f)Telephone contact at all reasonable times, including a call each Sunday night at 7.00 pm Hong Kong time by L to the father, to be implemented by the mother and a call each Wednesday night at 7.00 pm Hong Kong time by the father to L at the mother’s home;
(g)Contact by correspondence; and
(h)Such other contact as the parents agree.
3.Contact under paragraph 2(a) is to be implemented by the mother arranging delivery of L (at her expense) to the father at Sydney International Airport by 4.00 pm on the second day of the half of the vacation and the father arranging delivery of L to the mother or a return flight at a time and place (within 10 kilometres of Martin Place, Sydney) nominated by the mother on the second last day of the half of the vacation.
4.Contact under paragraph 2(b) is to be implemented by the mother arranging (at her expense) L’s delivery to the father at Sydney International Airport by 4.00 pm on the second day of the vacation and the father arranging L’s return to the mother or a return flight at the same place at a time nominated by her on the second last day of the vacation.
5.Contact under paragraphs 2(c) and (d) is to be implemented by the father collecting L from the mother’s residence in Hong Kong at the start of contact and returning him there at the end of contact with the father to ensure L attends his school on school days.
6.During contact the father is to ensure L telephones the mother at least twice each week.
These orders have been registered in this court and thus I have jurisdiction to entertain the application.
The mother has complied with the contact orders which means that L has travelled to Australia on a number of occasions for contact with his father since his departure in January 2002.
The catalyst for this application is the outbreak of the SARS virus and its continued presence in Hong Kong. On 30 March 2003 the A in Hong Kong, where L receives his education, closed because of the SARS outbreak. It was closed by government decree that all schools close and not because any person at the school had contracted it or was possibly contagious.
Because she was concerned about the spread of SARS the mother arranged for L to return to Australia. He had been due to come to Australia on 12 April 2003 for school holiday contact. He left Hong Kong on 8 April 2003, accompanied by his stepfather. Upon his arrival in Australia the father assumed L's care. L has remained with his father ever since.
L was due to return to Hong Kong on 24 April 2003. So that she could accompany him on the return journey the mother arrived in Australia on 24 April 2003 intending to collect L and return immediately to Hong Kong. At that stage she understood that L's school was to re-open on 28 May 2003, which it did.
At the last moment the mother was able to arrange additional leave from the S where she works as the on-line night editor. Her delayed departure resulted in her agreement that L could remain with his father a few extra days. They agreed that the father would return L to her on 27 April 2003, when she and L were re-scheduled to fly out of Sydney. He was not returned. He was withheld without the mother's consent or the imprimatur of a court. Inexplicably the father did not allow face to face contact between L and his mother.
The relevant law
Interim parenting proceedings do not determine the long term rights and obligations of the parties and their children. Accordingly, the Court should not ordinarily be drawn into matters of contentious matters of fact, or matters relating to the substantive merits of each party’s case.
The principles that determine the adjudication of interim parenting matters are reflected in a long line of authority; most recently stated in Cowling and Cowling (1998) FLC 92-801. The Full Court of the Family Court there identified a five-element process for the determination of interim proceedings for residence and contact.
Firstly, the overriding principle is that the best interests of the child is the paramount consideration.
Next, given the circumscribed nature of interim proceedings, the orders made should maintain and promote stability in the child’s life pending the final determination.
Next, where it is clear that the child is living in a well settled environment, the child’s stability will usually be promoted by continuing these current arrangements. If the evidence establishes there are strong or overriding reasons relevant to the child’s welfare whereby in that environment the child will be at risk, then the court should not make an order that leaves the child in a situation of serious risk. The risk of harm test is described thus: “Such indications would include but are not limited to convincing proof that the child's welfare would be really endangered by his/her remaining in that environment”.
In deciding whether a child is living in a settled environment, the court should examine and assess,
a)the wishes, age and level of maturity of the child;
b)the current and proposed arrangements for the day to day care of the child;
c)the period during which the child has lived in the environment;
d)whether the child has any siblings and where they reside;
e)the nature of the relationship between the child, each parent, any other significant adult and his or her siblings; and
f)the educational needs of the child.
Next, the weight given to the importance of the current living arrangements is to be determined by reference to the interests of the particular child. In deciding what weight should be given to the current status quo, the court may examine the circumstances by which the current status quo has been attained, the duration of the current arrangements and delay. This list is not exhaustive.
The court will undertake a limited evaluation of the matters set out in section 68F(2) of the Family Law Act 1975 in circumstances where the evidence does not establish that the child is living in a settled environment.
The husband’s solicitor relied upon Genish-Grant v Department of Community Services [2002] FamCA 346 as support for the proposition that he did not need to demonstrate that this child was at greater risk of contracting SARS than any other Hong Kong resident. Genish-Grant v DOCS concerned the Hague Convention on the Civil Aspects of International Child Abduction. In particular whether the Australian parent could successfully resist an application by the Australian Central Authority to return children to their other parent in Israel. The case required consideration of the Regulation 13(b) “grave risk of harm” defence. That case was concerned with the risk related to random acts of terrorism that were being perpetrated upon the Israelis. The majority decision delivered by Finn and Barlow JJ’s determined:
“In order for the mother to satisfy us that a return of the children to Israel would expose them to a grave risk of harm, it is not in our view necessary for her to prove that such a return would expose them to a grave risk of direct harm over and above the risk of harm to which any individual in Israel is exposed. We reach this conclusion because, when the relevant harm sought to be relied on for the purpose of establishing the defence under Regulation 16(3)(b) is in the nature of warfare or civil unrest, we do not think it necessary or possible to draw any distinction between a direct risk to a particular individual and the risk to which the relevant population is generally exposed.”
The wife’s counsel submitted that Genish-Grant v DOCS was a different type of case to that which I am concerned with. Not only is the nature of the relief sought different but so is the type of risk that is at the heart of the proceedings. I agree with him. Here, the court is concerned with analysing the risk of contracting a virus and the consequences of contracting the virus. When considering the risk of contracting SARS and then its consequences I can do so on a more certain basis than one can evaluate terrorism. However there is some similarity between the two cases. The similarity is that the court must assess the risk to the particular child within the environment that the child lives. A child caught in a place where terrorism is rife is at least at risk of terrorist attack as other members of the community. If the risk of terrorism in the community is high then the risk to the child is also high. So too with SARS, if the risk of contracting it is high within the general community that the child lives in, then the risk to the child may also be high. However, because the virus is an illness about which the manner in which it is transmitted is known and precautions can be taken the court can make an assessment of the particular child’s situation within his community. Even within a specific community the general risk may be moderated. Whether or not that is so is a question of fact that must be assessed.
Is there a well settled environment?
The relevant environment in this case is that L lives with his mother in Hong Kong. The arrangements were established pursuant to orders of a court and have continued for more then twelve months. I am satisfied that I should approach this case on the basis that this is a well settled environment. The onus therefore rests on the applicant to show me that there is convincing proof that L will be at real risk if he returns to Hong Kong.
In her affidavit[1] the mother recounts a conversation that she had with the father concerning the arrangements for their son. She told him “At home we are observing regular hand washing, cleaning. We avoid crowds. L uses the private mini-bus to go to school. Cases were first reported in Guangdong province in November and statistically the chances of contracting it if observing the measure to avoid infection were very small. The health authorities had surmised that it was a close-contact infection transmitted by droplets”. When she sent the child out of Hong Kong early the mother took sensible precautionary steps intending to minimise the risk that he would contract SARS. While in Hong Kong it is clear that she also took steps to minimise the risk of infection. I place considerable weight upon her demonstrated capacity to competently parent this child over many years. I am in no doubt that she would not knowingly place the parties son into a risky situation.
[1] Paragraph 25
What is SARS?
In the Department of Foreign Affairs and Trade (DFAT) travel advisory SARS is described as a contagious form of respiratory illness; a type of atypical pneumonia. The vast majority of cases have been contracted through close personal contact with a seriously ill person, almost exclusively in hospitals and between family members. The DFAT advisory defines “close contact” as meaning “having cared for, having lived with, or having direct contact with respiratory secretions and body fluids of a person with SARS”. It is common knowledge and apparent from the travel advisory that SARS can be fatal.
The travel advisory advises Australians against non-essential travel to countries including Hong Kong. The information I have from DFAT is supplemented by a report[2] of a recent meeting in Bangkok of the World Health Organisation (WHO) team dealing with the SARS outbreak. When discussing Hong Kong, WHO reported: “The drop in the number of new cases in Hong Kong was welcomed by a four member team of WHO environmental health experts who arrived on Sunday to investigate the possibility of environmental transmission of SARS in residential buildings.” Udo Bukol, WHO’s team leader in Hong Kong said, “It is a very good sign and a very telling story that the number of new cases in Hong Kong is going down and we hope that this will continue.” And …“The number of new admissions daily is still too high. We would like that number to come down dramatically and consistently before we review the advisory.”
[2] Annexure B to the mother’s Affidavit
WHO requires a twenty day period during which there are no new cases of SARS reported before the travel advisory is revised downwards.
I have to assess the risk to L of returning not just to Hong Kong but to the life that he will lead in Hong Kong. His time is spent at school or in his mother's care. The mother ensures that the arrangements discussed with the child’s father are maintained. I have school specific information that addresses the precautions the school has taken to respond to the risk to its students and staff of the SARS virus.[3] The school has taken a number of obviously well advised precautions. The steps the school has taken relate to the type of risk that is outlined in the travel advisory and World Health Organisation recommendations.
[3] Annexure A and D to the mother’s Affidavit
Firstly, the school closed. All schools closed by government mandate. During the period of closure the school was thoroughly cleaned and before re-opening on 28 May 2003 inspected by a government health inspector. The school has employed extra cleaning staff. The staff have specific responsibility for hygiene, including management of waste disposal areas and school canteen areas where the children will group and eat. All school staff and students are required to wear masks. Before school each day the children's temperature is taken and daily temperature charts are monitored. All visitors to the school must complete a health and contact declaration form.
The initiatives taken at the school appear to be consistent with and compliment the government initiatives that apply to the island as a whole. It is apparent from the material that the Hong Kong SARS response includes prevention for the island and also mandatory reporting measures. Those people who have been exposed to the virus are quarantined.
The risk in the Hong Kong community, is described in the DFAT bulletin thus: “The Commonwealth Department of Health and Aging has advised that the risk of contracting SARS is low. The vast majority of cases have been contracted through close personal contact with a seriously ill person, almost exclusively in hospitals and between family members. There is a smaller risk of contracting SARS through other means. Nevertheless, it is prudent to take precautions to minimise the probability of infections from more casual contacts.”
The effect of this evidence is that the risk of contracting the virus is low within Hong Kong. The risk is lessened if exposure to people who are seriously ill is minimised. The risk to L in particular is lower than the risk to the general community because of the steps taken at his school and the knowledge that his mother has in relation to the precautions that must be taken to minimise exposure.
The father's case, in essence, is that any risk is an unacceptable risk.
I accept his submission that the statistical probability that L will contract SARS in Australia is so insignificant as to be no risk at all. By comparison to Australia he says there is a greater risk that L will be exposed to SARS if he returns to Hong Kong. I accept that as a theoretical possibility that is so. However, when I analyse the evidence the risk of exposure is still low. It does not, with respect to the father, establish that L will be really endangered, in terms of the likelihood that he will be exposed to SARS, should he simply return to Hong Kong. I take into account in making this finding that the World Health Organisation reports that new cases of SARS are still being diagnosed daily in Hong Kong. It is apparent that I have accepted Mr Bullock's argument that I do not analyse the risk simply as a statistical exercise.
I have attempted to focus on this child's particular circumstances in the situation he will be in if he returns to Hong Kong. In all the circumstances of this case I am satisfied that the risk of exposure by L to SARS is low.
Conclusion
The Hong Kong government has taken clear precautions to restrict the movement of people exposed to SARS which itself minimises the risk that L will be exposed to it. The school, thus far, has been free of SARS and has taken all necessary steps to ensure that the contact children have with each other and with staff will not mean that that involves contact with a person infected with SARS. The precautions that involve wearing masks and regular hand washing are imposed at the school. The mother is adamant that for so long as this remains an appropriate method of infection control L will do it.
The Family Court of Australia has previously accepted that this mother is a parent who makes sensible, child focused parenting decisions and I am satisfied that she will continue to do so. There is no evidence upon which I would conclude that she would abandon a prior history of competent parenting in favour of decisions that would place her son at risk.
The WHO report indicates that in a child the risk that SARS will be fatal is much lower than if the virus is contracted by an old or infirm person. Much more is known about SARS now than when the mother decided to send L away from Hong Kong. Because of the increased knowledge of the virus’s early symptoms the mother is able to ensure that L receives immediate treatment should he develop any symptoms akin to SARS. This makes it less likely that if he contracts the virus it would become life threatening.
The balancing exercise that I must carry out is not one which decides between no risk versus a slight risk. Rather I must consider whether the risk to this child in his well-settled environment is sufficiently grave that I should disrupt him even if only for a short time. Having decided the risk he will contract SARS is low I am not satisfied that the case law entitles me to give the relief sought by the father. I will make orders in accordance with those essentially sought by the respondent. Those orders I am satisfied are in the best interests of the child. This means that the father must return the child immediately. There is then no restriction that will prevent the mother’s immediate return to Hong Kong with the child.
Costs
This is an application by the mother that the father pays her costs of these interim proceedings. The matters that the court must consider on an application for costs are contained in s.117 of the Family Law Act 1975. The normal rule is that each party will pay their own costs. However, the court may make an order for costs if it is satisfied that in the particular circumstances of the case it should do so. When the court is considering whether an order for costs should be made it must consider those matters contained in s.117(2)A. I will deal with those matters that are relevant. No distinction can be made between cases that involve financial matters and cases that involve children. The applicable principles are the same.
Neither party is in receipt of a grant of legal aid and there are no disciplinary matters that require consideration.
The gravamen of the mother's application is that the father has been wholly unsuccessful in his application, and that she has incurred significant legal costs for which she should be reimbursed. Mr Bullock emphasises that the father was motivated out of concern for their son.
I accept that that is so. However, in bringing this application he took legal advice before he started it. The evidence that he presented almost inevitably must have resulted in a finding that the claimed risk that justified a change in the child's circumstances was low. The test that needed to be met was quite different.
Against this background of good intention I must consider the financial circumstances of the parties. Both parties are in full-time paid employment. Mr Bullock submits that the mother’s financial circumstances are superior to the father’s. He submitted I would infer this from the fact that the mother receives only $64.17 per month child support. He conceded the child support is calculated by reference to the father’s income earned last year rather than that which he is currently earning. To the extent that there is a difference in their current financial situation that difference is moderated by the fact that the mother meets virtually all of the child's expenses without any meaningful contribution by the father. As a consequence he has available to him all of the income he earns but for the small child support that he pays. Hence the distinction between the financial circumstances of the parties appears to be moot.
The consequences of the costs application may seem harsh. However, the uncontroverted fact is that the father has been entirely unsuccessful and on balance I see no good reason why the mother should pay the costs she has incurred in defending an application that was probably always doomed to failure.
For these reasons I make the orders set out at the start of this judgment.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 25 June 2003
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