Percy and Percy & Anor

[2020] FCWA 194

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: PERCY and PERCY & ANOR [2020] FCWA 194

CORAM: SUTHERLAND CJ

HEARD: 18 SEPTEMBER 2020

DELIVERED : Ex tempore

PUBLISHED : 29 OCTOBER 2020

FILE NO/S: PTW 4731 of 2018

BETWEEN: MS PERCY

Applicant

AND

MR PERCY

First Respondent

AND

MR PERCY SNR

Second Respondent

Catchwords:

PRACTICE AND PROCEDURE - Ex tempore - Application by mother for orders permitting her to "break" any quarantine directions imposed by the Commissioner for Police pursuant to the Emergency Management Act 2005 (WA) - Whether the Court will grant permission for the mother to enter the court precincts without firstly completing the mandatory quarantine requirements, assuming the Commissioner for Police modifies the mother's quarantine directions - Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)
Emergency Management Act 2005 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms Watson
First Respondent	:	Self Represented Litigant
Second Respondent	:	Excused from attendance
Independent Children's Lawyer	:	Mr Athanasiou

Solicitors:

Applicant	:	Bowen Buchbinder Vilensky
First Respondent	:	Self Represented Litigant
Second Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Ferrier, Athanasiou & Kakulas

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

1The trial in these proceedings has been listed for hearing before O’Brien J to commence on 2 November 2020 with an estimated hearing time of five days. The mother currently resides in [the Eastern States]. On 29 July 2020 his Honour made a number of procedural orders in relation to the trial, including an order that the mother must travel to Western Australia to personally attend at the trial. I am not aware of the basis upon which such order was made and whether it was made because a determination had been made that procedurally it would be unfair to proceed with the trial on the basis that the mother attended by video linkup; or it was simply to facilitate the mother’s application to travel to Western Australia, given the current border and quarantine restrictions applicable in Western Australia in response to the COVID‑19 pandemic.

2On 14 September 2020 the mother filed a Form 2 application seeking the following orders: firstly, that the mother be permitted to break quarantine for the following purposes: to walk between her hotel accommodation to the entrance of the Family Court of Western Australia on 2, 3, 4, 5 and 6 November 2020 for the purposes of attending at the trial and wear a mask at all times when she walks between her hotel accommodation and the court; secondly, that during the mother’s attendance at the trial she must wear a mask at all times when she is in the public areas of the court and only sit in the seats allocated to her by the court; and thirdly, that the mother have liberty to provide a copy of the orders to the WA Police and to her hotel accommodation.

3In support of her Form 2 application the mother filed an affidavit. The salient parts of her affidavit were as follows: The mother has booked her travel to and from Perth. She has booked to arrive in Perth on 31 October and depart on 7 November 2020. The mother cannot afford to pay for the children to travel to Perth with her. Instead she has arranged for the children to be cared for by a nanny whilst she is in Perth, which will enable the children to continue to attend school and their extracurricular activities in the Eastern States. The mother cannot afford to pay for two weeks of hotel quarantine in Perth and then pay for the further week of hotel accommodation while she attends the trial. In any event the mother does not want to be separated from the children for three weeks. The mother has been in contact with the WA Police seeking to modify the requirement for her to quarantine for 14 days upon her arrival in Perth.

4The mother’s affidavit also annexed an email dated 27 August 2020 from the WA Police. That email confirmed that: firstly, the mother’s application to travel to Perth had then not yet been approved and was still being assessed. Secondly, in order to consider the mother’s request to modify the quarantine conditions that attach to any approval to [enter] Western Australia, the WA Police required written confirmation from the court that it will provide permission for the mother to enter the court precincts for the duration of the trial whilst still being subject to self-quarantine directions.

5Contemporaneously with accepting the mother’s application for filing, I made a direction that by no later than 5 pm on 16 September the mother was to file and serve written submissions of no more than five pages in support of her application for the court to make orders permitting a party to break a quarantine direction made under the Emergency Management Act 2005.

6The mother did not comply with that direction, and I also observe that no other party has filed any documents in response.[1] Nevertheless the ICL and [Mr Percy], who have attended in person today, did indicate that their position was that they did seek that the trial proceed and with the mother attending in person if that was practicable.

[1] The mother's counsel and the ICL subsequently informed the Court that they did not receive the notification from the Court.

7To provide some background, and particularly the legislative framework to this application, on 15 March 2020, and pursuant to the Emergency Management Act 2005 (WA), the Western Australian Minister for Emergency Services declared a state of emergency in Western Australia with effect from 16 March 2020 in respect of the COVID-19 pandemic. On 5 April 2020 the Commissioner for Police, as the State Emergency Coordinator under the Act, issued the Quarantine / Closing the Border Directions. Paragraph 1 of those quarantine directions states that the purpose of the directions is to limit the spread of COVID-19.

8Relevantly to this case the directions make provision for a person who is required to enter Western Australia under or to give effect to an order of an Australian court to apply for approval to travel to Western Australia, subject to that person complying with all quarantine directions, including remaining at a nominated quarantine centre for a period of 14 days.

9No party today was able to point to any provision of the Emergency Management Act, the Quarantine Directions or any other legal authority in support of the proposition that this court has power to authorise a person to breach a validly issued direction made under the Quarantine Directions, and I am not persuaded that the court has any such power.

10Effectively what the mother seeks from the court today was as framed in the Western Australian Police email of 27 August 2020. The Western Australian Police seek written confirmation as to whether the court will grant permission for the mother to enter the court precincts for the duration of the trial, effectively without firstly having completed 14 days of quarantine and instead while she is self‑quarantining during the trial itself.

11In March 2020 this court implemented its COVID-19 response plan to ensure the continuity of its services to the Western Australian community. The court’s plan recognises that: firstly, the court provides essential services to the West Australian community. Secondly, the court operates as a single registry in one central location at 150 Terrace Road, Perth. In normal circumstances approximately 4000 people a week enter our building. Thirdly, the court has a very limited capacity for its judicial officers and staff to work remotely from the court building, particularly given that it is primarily reliant upon paper court files rather than electronic court files. Fourthly, it is vital that the court is able to implement ongoing sustainable measures to mitigate the risks of COVID-19 to its judicial officers, its staff and to other court users, including legal practitioners, litigants and their witnesses, so that the court can continue to provide its essential services from its court precincts in Perth.

12The court over the past six or so months has taken a number of steps in accordance with its plan to mitigate the risks to court judicial officers, court staff and court users. This has included, where practicable: firstly, reducing the need for court users to attend court events in person and instead, wherever appropriate, facilitating attendances by telephone or video and simplifying processes for this to occur. Secondly, by enforcing physical distancing, for example, by limiting the numbers of persons who can enter the courtrooms at any one time and regulating where they can sit. Thirdly, until June 2020 temporarily suspending travel by judicial officers and staff for the purposes of conducting regional circuits in comity with other directions issued by the State Emergency Coordinator restricting movement between regions. Instead, wherever possible, the affected circuits were conducted by judicial officers from Perth by telephone or video. Fourthly, directing judicial officers, court staff or other court users who exhibit symptoms not to enter and/or to immediately leave court precincts. Fifthly, generally refusing permission for any person to enter or remain upon the court precincts if they have entered Western Australia within the previous 14 days, in comity with the quarantine directions.

13In this case the mother seeks the court's permission to enter the court precincts without the necessity of having to complete 14 days of prior quarantine. This assumes that the mother is, in fact, approved to enter Western Australia under such modified quarantine conditions. The mother seeks permission to do so largely on the basis of costs considerations and convenience to herself.

14I acknowledge that these are important considerations to the mother, and I also acknowledge that it is important to the other parties in this case that this trial proceeds in a timely manner and as soon as practicable. However, balanced against these matters, I must also consider much broader issues in relation to the ongoing management of the court, including the ongoing provision of the court's services to other litigants in the Western Australian community.

15As I have already identified, during the pandemic it is vital that the court maintains ongoing, sustainable measures to mitigate the risk to its judicial officers, its staff and to other court users so that it can continue to provide services to the West Australian community from its precincts in Perth.

16The mother proposes a number of measures to attempt to mitigate the risk to others, assuming that she is not required to comply with the usual 14 day quarantine period. This includes wearing a mask in the public areas and only sitting in designated seats. However, I am not satisfied that such measures are sufficient to mitigate the risk: Firstly, to the judicial officer hearing the trial, his court staff, to the other parties involved in the trial, to the parties’ legal counsel, to the parties’ witnesses, and to any other court users who will come into contact with the mother during the five days of the trial. It goes without saying that if the mother sits in the courtroom for the five days of the trial, then all of the other key participants in the trial, including the judge, the court staff, the lawyers concerned, and the other parties, will be close contacts of the mother. Secondly, the close contacts of those persons for example, the members of the households of the persons who are sitting in the courtroom, will also potentially be exposed. I am not satisfied that the mother’s proposed mitigation measures are sufficient to protect those people as well.

17In conclusion, and having regard to those matters that I have identified above, I decline to grant the mother permission to enter the court precincts on the basis sought by her and intend to dismiss her application.

These reasons are the reasons for decision I delivered on 18 September 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

29 OCTOBER 2020