MEIJER and KNIGHTS

[2021] FCWA 150

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: MEIJER and KNIGHTS [2021] FCWA 150

CORAM: TYSON J

HEARD: 13 AUGUST 2021

DELIVERED : Ex tempore

FILE NO/S: PTW 1862 of 2018

BETWEEN: MS MEIJER

Applicant

AND

MR KNIGHTS

Respondent

Catchwords:

FAMILY LAW – Interim parenting – Where the mother seeks to travel with the children to [Country A] – Where the mother and children have obtained an exemption to leave Australia, on compassionate grounds – Where current COVID-19 travel restrictions are considered – Application refused – Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self-Represented Litigant
Respondent	:	Self-Represented Litigant
Independent Children's Lawyer	:	Ms Bodey

Solicitors:

Applicant	:	Self-Represented Litigant
Respondent	:	Self-Represented Litigant
Independent Children's Lawyer	:	Kerr Fels Family Lawyers

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

Deiter & Deiter [2011] FamCAFC 82

Kuebler and Kuebler (1978) FLC 90-434

Line and Line (1997) FLC 92-729

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 Meijer and Knights has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

TYSON J:

1The mother, [Ms Meijer], seeks orders to facilitate her travelling urgently with the parties’ two children, [Child A] and [Child B], to visit her mother who has recently been diagnosed with a terminal illness. The application is opposed by the father, [Mr Knights], and the Independent Children’s Lawyer.

2The proceedings are determined under the provisions of the Family Law Act 1975 (Cth) (“the Act”). The decision the Court must make, is that which is in the best interests of the children. The issues for determination are:

•Whether the children should be permitted to accompany the mother to [Country A] or remain in Australia with the father?

•If the mother is permitted to travel to Country A with the children:

•What conditions should be put in place prior to her departure?

•Should there be any requirements placed upon her stay?

•What orders should be made to facilitate the children having contact with the father while they are abroad, and make up time upon their return?

APPLICATIONS AND EVIDENCE RELIED UPON

3The mother seeks orders in terms of her Application in a Case filed 13 July 2021, permitting her to travel with the children immediately to Country A, for a period of three months from the date of departure. She seeks ancillary orders including the father release Child A’s passport, and cooperate to renew both children’s Australian passports, at her cost. She proposes to provide the father with the children’s itinerary, accommodation details and to facilitate communication each alternate day. She proposes to enrol the children into the Country A school system, and for the father to have make up time, upon their return.

4The mother relies upon her affidavits filed 13 July 2021 and 11 August 2021.

5The father seeks orders in terms of his Response filed 2 August 2021. He opposes the children travelling to Country A with the mother, and seeks the children remain in his care in Western Australia, attending their current school, should the mother elect to travel to Country A. The father relies on his affidavit filed 2 August 2021.

6Both parents are self-represented litigants. Each of the parties made oral submissions. I have carefully considered the evidence that is relied upon, together with the submissions I have heard. As these are interim proceedings, I am unable to make any findings of fact, where the evidence is in dispute.

BACKGROUND FACTS

7The mother was born [in] 1976 in Country A. She is a [manager] and is 45 years of age. The father was born [in] 1973 in Australia. He is 48 years of age and is employed [in emergency services].

8The parents met in [Country B], and commenced living together in 1997, in Australia. They married in 2002 and separated in 2014. They have since divorced.

9The father’s extended family live in [State A]. The mother has no extended family in Australia.

10Child A was born [in] 2010 and is 10 years old. Child B was born [in] 2012 and is nine years old. Both children were born in Australia and are Australian citizens.

11In 2018, the mother commenced proceedings seeking orders initially by way of alteration of property interests, which she subsequently amended to introduce parenting proceedings, including an application to relocate the children to Country A. The father opposes the mother’s application and seeks a shared care arrangement for the children.

12Financial matters have been resolved by consent, pursuant to orders made on 27 June 2019.

13In November 2018, the parties attended a Case Assessment Conference. At that time, the children were spending five nights with the mother, and two nights with the father. The Consultant noted the outstanding dispute between the parents about the long-term arrangements for the children, with the father seeking the children spend increased time with him, in line with his work roster, while the mother sought to relocate to Country A. The Consultant also observed the parents’ disagreement about the children’s health. The mother maintained that Child A had been diagnosed with [a] Disorder, and she had modified her diet in accordance with the recommendations of Child A’s health practitioners. The father advised he was agreeable to doing so, if he had the benefit of consulting with those practitioners, to make an informed decision. He expressed some pessimism about the diagnosis, and queried whether the mother had actively sought out a diagnosis, consistent with her views.

14The mother, at that time, was seeking interim orders to travel with the children to Country A in December 2018/January 2019, but told the Consultant in the alternative, her mother would travel to Australia from 2 January to mid-February 2019. The mother advised she still hoped to travel in June/July 2019 to Country A for a holiday.

15The father raised a minor concern that the mother had retained possession of the children’s passports, but told the Consultant he was not averse to the mother’s proposed travel in mid-2019, but would be more agreeable if she would agree to his proposals to spend time with the children.

16In March 2019, the parties and the ICL attended a Child Dispute Conference. The parties remained in dispute about the proposed travel in the July 2019 school holidays. They had attended joint appointments with Child A’s treating psychologist, dietician, medical practitioner, naturopath and [Dr A].

17In October 2019, orders were made by consent, for the parents to have equal shared parental responsibility, for the children to spend three consecutive nights with the father during his four days rostered off from work, and otherwise live with the mother, and for school holidays to be shared. They agreed to attend reportable family therapy and the mother was permitted to travel with the children from 13 December 2019 until 10 January 2020, on terms, including that the mother was to provide both children’s Country A passports to the Family Court within seven days of the orders.

18The Court received the passports on 16 January 2020, which the father complains was not in accordance with the interim agreed orders.

19On 23 October 2020, Orders were made appointing [Mr B] as the Single Expert Witness. Mr B’s report dated 22 June 2021, was received by the Court on 12 July 2021. The proceedings are listed for a readiness hearing on 18 October 2021.

THE LAW

20I propose to deliver reasons in short form only, in circumstances where the matter requires an urgent determination.[1] It is not necessary to set out the relevant legal principles, other than to note as follows.

[1] As permitted by s 69ZL(1) of the Act.

21Firstly, in determining what parenting orders are to be made, the best interests of the children are the paramount consideration.

22Secondly, the legislation sets out various primary and additional considerations to be taken into account in determining what is in the children’s best interests.

23Thirdly, the issues, as joined by the parties, will determine which of those considerations are relevant to the determination of the particular dispute and considerations which are not relevant to that determination need not be expressly discussed.

24Fourthly, the Full Court in Kuebler and Kuebler (1978) FLC 90-434 established a non-exhaustive list of factors to be taken into account when considering an application to remove children from the jurisdiction. That list includes:

(a)the length of the proposed stay out of the jurisdiction;

(b)the bona fides of the application;

(c)the effect on the children of any deprivation of access;

(d)any threats to the welfare of the children by the circumstances of the proposed environment; and

(e)the degree of satisfaction in which the court based its assessment of the parties promise of a return to the jurisdiction being honoured.

25The Full Court in Line and Line (1997) FLC 92-729 referred to additional considerations, to be taken into account when considering whether security should be paid.

26Given the parameters of the narrow dispute, many of the s 60CC factors are of little or no relevance to the issues for determination. It is not necessary, therefore, to traverse them in detail in these Reasons. It is sufficient to note that I have turned my mind to each of the considerations listed in the section and will address them to the extent they are relevant.

SHOULD THE CHILDREN BE PERMITTED TO TRAVEL WITH THE MOTHER?

27The mother deposes in late July 2021, the maternal grandmother was unexpectedly diagnosed with [a terminal illness] and given a life expectancy of two to three months. She wishes to travel immediately to Country A, to spend time with the maternal grandmother. Child A has expressed a desire to travel to Country A to see her dying grandmother, in support of the application for a travel exemption.

28The mother notes the father previously agreed to her and the children travelling to Country A in 2018. Since that trip, neither she nor the children have been able to return. COVID-19 has prevented the mother’s family travelling to spend time with them, in Australia.

29The mother has proposed make up time with the father, for any time that is lost as a consequence of her proposals.

30The mother has proposed to fly from Perth, on [Airline A], departing on Sunday 15 August 2021, stopping in [Country C], which is a COVID-19 green zone. She proposes to return on [Airline B] on 11 November 2021, via [Country D].

31While she has presently proposed to travel on economy flights, she is prepared to book business class return flights, if that is required, and if so, would then likely fly Airline A both ways.

32The mother intends to fly into [City A], and travel directly to [Town A], where her mother, sisters, and their families live. Town A is a remote [town] in the north of Country A.

33Country A have a number of public health measures to deal with COVID-19. She has attached articles which refer to 85% of all adults in Country A having received their first vaccination, and 66% of all adults being fully vaccinated. It is her case that as at 10 August 2021, there were only four COVID-19 cases in Town A, and in the last six weeks, only three people have been hospitalised due to COVID-19, with no deaths.

34The children’s school principal has acknowledged the proposed travel would result in the children being absent for an extended period, but said it would enable them to spend valuable time with their grandmother and reconnect with family and friends. The mother proposes to enrol the children into a local school in Country A, and has provided correspondence welcoming the children into the proposed school, at which the mother’s sister teaches.

35The mother has already received her first vaccination, and intends to obtain her second vaccination abroad. She has set out the steps she will take to manage the health and well-being of herself and the children while overseas, to try and mitigate against the risks posed by COVID‑19. It is her case that there is limited evidence of children suffering adverse outcomes, should they contract COVID-19.

36The mother says she is not a flight risk. She is employed, she owns her own home, and she is an Australian citizen, as are the children. She has offered to return to Australia on business class tickets, as it will more likely secure her return in accordance with a travel itinerary, and avoid delays. She is prepared to provide security if required. She has otherwise submitted that if she is permitted to travel, she will register with DFAT and the Australian Embassy in Country A, she will comply with all requirements to obtain permission to return to Australia, and expects that orders from the Court, may assist her efforts.

WHAT IS THE FATHER’S POSITION?

37The father has expressed a number of objections to the children travelling:

(a)He is concerned about the risks associated with the COVID‑19 pandemic and says Country A is considered a high risk “red zone”, which as at last week, was recording 3,000 cases per day. He says Country A is a small densely populated country, which increases significantly the risk of contracting COVID-19.

(b)He fears the children will not be returned to Australia due to the existing travel restrictions associated with COVID-19, and the potential further restrictions which may come into effect from time to time.

(c)The father is not confident the mother will successfully obtain an exemption to ensure she and the children return, or that she will be sufficiently motivated to do so. He notes that the mother’s preference is for her and the children to live in Country A.

(d)He does not consider it is in the children’s best interests to spend an extended time in Country A, to attend school and effectively commence a new life in Country A, before such time as the competing final applications are determined by the Court. He is concerned about the impact on the children’s relationship with him, through spending extended time away.

38The father proposes that if the mother wishes to travel, the children live with him, to enable her to spend time with her mother. He has set out the arrangements he would put in place, to enable him to care for the children in the mother’s absence, including the assistance from his partner and her mother.

WHAT ARE THE ICL’S SUBMISSIONS

39The ICL submitted that despite sympathy for the mother’s position, she was not supportive of the orders to enable the children to travel. She was supportive of the orders to enable the mother to obtain Australian passports for the children, on the basis they would be held with the Registry of the Court.

40It was her case that overseas travel to Country A was not in the children’s best interests, given the significant uncertainty due to the pandemic.

EMERGENCY MANAGEMENT ACT 2005 (WA)

41None of the parties adduced any admissible evidence about the current COVID-19 restrictions. There was no dispute about some basic matters which I consider I am entitled to take judicial notice of, as follows:

(a)On 15 March 2020, the Minister for Emergency Services declared a state of emergency in respect of the COVID-19 pandemic, pursuant to s 56 of the Emergency Management Act2005 (WA).

(b)The Australian Government currently prohibits all Australian citizens from leaving Australia, unless they are given permission, due to the health risks from the COVID-19 pandemic, and the significant disruptions to global travel.

(c)According to the Smart Traveller Website, as at 13 August 2021, DFAT do not recommend any travel to Country A. Entry and departure from Country A depend on where people are travelling from. They also have other requirements for entry and departure.

(d)The National Cabinet announced on 2 July 2021 that from 14 July 2021 to 31 August 2021, the number of international travellers permitted to return to Australia would be halved. As a consequence, the number of travellers presently permitted into WA is now 265 per week.

(e)The Commissioner of Police and State Emergency Coordinator have published directions[2] prohibiting entry into Western Australia, other than in certain circumstances. The directions provide that a person must not enter Western Australia unless that person is an exempt traveller, and exempt travellers are required to comply with specified terms and conditions.

[2] Quarantine (Closing the Border) Directions 2020.

42The mother and children have successfully obtained an exemption permitting them to leave Western Australia for a single departure only. The exemption notes:

Anyone leaving Australia should be aware that a number of countries are implementing their own border restrictions in response to COVID‑19 and the international air network is reducing in capacity. The ability to enter another country or return to Australia may be severely impacted. All travel restrictions are under constant review by the Australian Government and may be subject to change at short notice.

43The exemption refers to the fact very limited flights are currently available to and from Australia, and any returning traveller must provide a negative COVID-19 PCR test taken 72 hours or less prior to departure. Further, any returning traveller is required to complete a mandatory quarantine for 14 days, at their cost, as determined by the relevant State.

DETERMINATION

44I have no doubt that each parent is deeply committed to the children, and they each love and want the best for their children. I accept their respective proposals are genuinely based, on what they consider to be in the best interests of the children.

45Ultimately, the Court is required to determine the outcome that is in the children’s best interests.

46The mother seeks to travel for a period of three months, but indicated a willingness to potentially travel for a shorter period of time. It is accepted she and the children would be required to quarantine for two weeks upon their return.

47There is no question as to the bona fides of the application. The mother has provided appropriate evidence of her mother’s health.

48I accept there would be benefits to the children, in having the opportunity to spend time with their maternal grandmother, and their extended maternal family. The available evidence is that both children have a close relationship with their [maternal grandmother]. It is an undeniably sad situation, in which the maternal grandmother has recently been diagnosed with a terminal illness and a limited life expectancy.

49Both children are of school age and attend primary school. The mother’s proposals would entail them missing a significant amount of school, which she proposes to ameliorate by the children having the opportunity to attend school in Country A.

50The children currently spend five nights with the mother, three nights with the father and half of the school holidays with each parent. The mother’s proposed travel includes the forthcoming school holidays. The parents allow the children telephone contact with the other parent whilst in their care, and also facilitate the children having contact with their extended families through social media.

51The Single Expert Witness found both parents had a good relationship with the children, there were no risks of harm in their respective care, and each parent had the capacity to provide for the children’s needs.

52The mother’s proposals would involve the children being separated from their father, for three and a half months (taking into account the requisite hotel quarantine upon return). I accept the father’s submissions, that despite the mother’s proposals to allow make up time, there are questions about how that would be accommodated, given his work commitments, and in light of the mother’s current opposition to his final orders, for shared care.

53Although the father has raised concerns about the risk of the mother not returning the children to Australia, I accept Country A is a signatory to the Hague Convention. Further, the mother has complied with previous orders to return from international travel. I do not find this to be a realistic risk.

54The real risks in this case are those arising from COVID-19. There is a risk that international travel will expose the children, and the mother, to contracting COVID-19. There is also a risk, that if the mother leaves Australia with the children, that flights could be cancelled, further restrictions put in place, and the denial or delay in granting an exemption to return, which may result in the children remaining in Country A for an indefinite period.

55These risks remain, irrespective of the mother’s intentions. For the purposes of the hearing, I am prepared to accept that the mother would do all that she says she would, to try and facilitate her and the children’s return.

56The difficulty with the current global situation, is that COVID‑19 poses an ongoing risk to the health of the population. Circumstances can change, and have changed, rapidly, since the pandemic began. Each government is making decisions, often at short notice, in an effort to protect the health of their citizens. There is a real risk that the children’s return may be delayed, due to circumstances beyond the control of the mother. That would result in the children being outside of the country for an extended period of time, and also, then separated from the father. Conversely, if the children remained with the father, there is also a risk of lengthy separation from the mother. Either outcome is not ideal.

57This is a difficult and finally balanced decision.

58In Deiter & Deiter [2011] FamCAFC 82, the Full Court considered the issue of risk and observed:

Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made… It is always a question of degree depending on the evidence that is before the court.

59I am unable to make any sensible assessment about the risk to the children and the mother of contracting COVID-19, given the lack of any admissible evidence in that regard.

60In carefully considering the evidence, I have come to the conclusion that it is not in the best interests of the children to be permitted to leave Australia. In my view, the current risks to the children are unacceptably high, such that their best interests are served by remaining in Australia.

61I cannot be confident, based upon the current evidence, if they were permitted to leave, when they would be able to return to Australia. The mother does not have an exemption at this time, to ensure her and the children’s return to Australia. There are risks of potential delays and difficulties in returning, due to matters beyond the mother’s control, for example, a cancellation of flights, changes in the requirements imposed by various governments, a positive COVID-19 test for her or the children, a reduction or variation in the number of overseas travellers permitted to return to Western Australia, and the like. These risks may result in the children remaining in Country A, for an indeterminate period of time. That would provide for the children to be separated from the father, from whom they have a close and meaningful relationship. In my view, that also poses a risk to the children in maintaining their relationship with the father.

62As matters stand, I consider these presently amount to unacceptable risks which do not support orders being made in terms sought by the mother.

63While I accept the orders will mean the children are deprived of the opportunity to spend time with their maternal grandmother and the extended maternal family, which is unfortunate and likely upsetting for the mother, her family and indeed the children, the decision I must make is that which is in their best interests.

64I observe the father is amenable to caring for the children, to enable the mother to travel if she wishes to do so. I consider such an arrangement to be in their best interests, in light of the observations of the Single Expert Witness, about the father’s capacity to care for the children, and the close and positive relationship he has with them.

65If the mother elects to travel without the children, I would expect the father would ensure the children are made available to have regular and frequent communication with the mother, and members of the extended maternal family. In my view, such arrangements would clearly be in their best interests.

66I appreciate the mother will be deeply disappointed with the decision I have made. It may be the children are also disappointed with the outcome, in circumstances where they are seemingly aware of their grandmother’s diagnosis, and have indicated an understandable desire to travel to see her.

67I am satisfied, and consider it appropriate, to make orders as proposed by the mother, to enable her to obtain Australian passports for the children, without the father’s signature, on the basis they are to be held with the Family Court until further order. There is no prejudice to the father in such an order. It is also an order that I consider to be appropriate, in the event the travel restrictions change, which may facilitate the children’s future travel, on their Australian passports.

68I consider it to be in the best interests of the children, to make orders which provide, that while the mother is in Country A, if the DFAT travel warnings change, to enable the children to leave Australia, to require the father to cooperate with the mother in any efforts she could make to facilitate the children’s travel to Country A, and failing agreement, to relist the proceedings on short notice.

69That is the extent to which I am satisfied that orders are in the children’s best interests.

ORDERS

1The Form 2 application filed 13 July 2021 by the Applicant, [MS MEIJER], be and is hereby dismissed.

2In the event the Applicant travels to [Country A], and during her stay, the DFAT travel warning changes, to enable the children, [CHILD A] and [CHILD B] to travel, the Respondent, [MR KNIGHTS], is to co-operate with the Applicant in any efforts she could make to facilitate the children’s travel to [Country A], and failing agreement, to relist the proceedings on short notice.

3The Applicant have liberty to obtain an Australian passport for the children, [CHILD A], born [in] 2010 and [CHILD B], born [in] 2012 and to that end, the necessity for the consent of the Respondent to the issue of a passport to the said children be dispensed with.

4Subject to any other requirements of the Department of Foreign Affairs and Trade, a passport be issued to the said children to enable them to leave the Commonwealth of Australia for the purpose of holidays.

5The costs associated with the issue of a passport for the children referred to in the preceding orders herein be met by the Applicant.

6Forthwith upon receipt of the children's passports, the Applicant cause the said passports to be deposited with the Registry of the Family Court of Western Australia for safekeeping, to be released only on the written consent of both parties or the further order of the Court.

7The proceedings stand adjourned to the adjourned Readiness Hearing on 18 October 2021 at 10am.

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

CD

Secretary

17 AUGUST 2021