Y and M
[2007] FCWA 89
•18 JULY 2007
JURISDICTION:
FAMILY COURT OF WESTERN AUSTRALIA
| ACT: | FAMILY LAW ACT 1975 |
| LOCATION: | PERTH |
| CITATION: | Y and M [2007] FCWA 89 |
| CORAM: | PENNY J |
| HEARD: | 4 JULY 2007 |
| DELIVERED: | 18 JULY 2007 |
| FILE NO/S: | PT 941 of 2005 |
BETWEEN: Y
Appellant/Father
AND
M
Respondent/Mother
(Page 2)
Catchwords:
Father's appeal against order to allow mother to remove child from Western
Australia for a trip [overseas] - appeal dismissed
Legislation:
Family Law Act 1975
Jurisdiction of Courts (Family Law) Act 2006 - s 27(2)
Category: Not Reportable
Representation:
Counsel:
| Appellant: | Ms D Dimond |
| Respondent: | Ms S Strapps |
Solicitors:
| Appellant: | Dimond Family Lawyers |
| Respondent: | Women's Law Centre |
Case(s) referred to in judgment(s):
Good and Good (1982) FLC 91-249
Kuebler and Kuebler (1978) FLC 90-434
Line and Line (1997) FLC 92-729
V and V (2004) FLC 93-201
(Page 3)
1 The application before the Court is the father’s appeal filed on 12 June 2007 from the orders made by Magistrate Moroni permitting the mother to remove the parties’ child from Western Australia for a 12 week trip [overseas].
Background
2 Both parties were born [overseas]. The father is 45 years of age and the mother is 37 years of age. The parties met [overseas] and were married in [the capital city] in June 2003. Shortly after their marriage the parties moved to Australia. Approximately one month later, the parties’ only child, [M], was born in March 2004.
3 The parties separated in September 2004 and since separation the relationship between them has been poor. Certain allegations have been made by the parties during these proceedings, however; they are not necessarily relevant for this particular interim application.
4 The father initiated proceedings in the Court in February 2005, seeking parenting orders in relation to [M]. Although those proceedings are still on foot, little has occurred in the way of their finalisation.
5 The parties agreed to interim orders on 20 April 2005 that [M] would reside with the mother and she would be responsible for her day-to-day care, welfare and development. The father was to have supervised contact with [M] on four occasions of 2 hours duration prior to 2 May 2005 and thereafter for periods of 2 hours on providing the mother’s solicitors at least 7 days’ notice. The orders also required [M]’s passport to be delivered up and held by the Court, and an injunction was granted restraining each party from removing [M] from Western Australia.
6 Since the orders were made the father has relocated to [the Eastern states] and continues to reside there. According to the mother, the father has not had a great deal of contact with [M]. She says that he has only seen [M] on three occasions in the last six months, being 2 December 2006, 28 April 2006 and 29 April 2006. There has been no contact by telephone or letters between the father and [M].
| (Page 4) | |
| 7 | The mother filed an application for temporary orders on 21 May 2007 to suspend for a 12 week period the contact arrangements currently in place pursuant to the orders made on 20 April 2005. During that 12 week period the mother seeks to remove [M] from Western Australia for the purposes of travelling [overseas]. |
| 8 | The mother’s application was heard on 11 June 2007. The father filed a responding application at the commencement of the hearing objecting to the mother accessing [M]’s passport and travelling [overseas]. At the conclusion of the hearing orders were made by Magistrate Moroni granting the mother permission to take [M] to [overseas] for a period of not more than 12 weeks. |
| 9 | On 12 June 2007 the father filed a Notice of Appeal and an application for an urgent stay of the orders made by Magistrate Moroni, and sought an injunction restraining the mother from removing [M] from the Commonwealth of Australia. |
| 10 | The Notice of Appeal was listed before me for a directions hearing on 25 June 2007, while the application to stay the orders was listed before Magistrate Moroni on 18 June 2007. |
| 11 | At the hearing on 18 June 2007 Magistrate Moroni granted a stay of the orders made on 11 June 2007 until the directions hearing before me on 25 June 2007. The matter came before me on that date and the application was adjourned to a special appointment before me on 4 July 2007, at which time the appeal was adjourned for judgment. |
Appeal
12 There was an issue as to whether the father needed leave to appeal the decision of the Magistrate. The Family Law Act 1975 has recently been amended by the Jurisdiction of Courts (Family Law) Act 2006 which amends, amongst other things, the way in which an appeal from a Western Australian Magistrate is dealt with.
13 Prior to the amendments an appeal from a decision of a Magistrate did not require leave and was conducted pursuant to s 96 as a hearing de novo before a single judge of the Family Court of Western Australia. Appeals from Magistrates are now dealt with under s 94AAA which provides that the jurisdiction in relation to an appeal of a decision of a Magistrate of Western Australia is to be exercised by a Full Court unless the Chief Judge considers it appropriate for the jurisdiction to be exercised by a single Judge.
| (Page 5) | |
| 14 | Whether or not the father requires leave depends on the interpretation of the commencement of the new provisions. Section 27(2) of the Jurisdiction of Courts (Family Law) Act deals with the commencement date of the relevant amended appeal section. It provides: |
“The amendments made by items 1, 2, 4, 6, 7, 9, 19, 20 to 24 and 26 apply to proceedings instituted after the commencement of this Part in the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia”
15 The procedure to be followed in relation to the father’s appeal depends on the interpretation of the terms “proceedings instituted”. The father’s originating application was filed in 2005, prior to the introduction of the amendments, however; the application before the Court which is subject of the father’s appeal was filed in 2007, after the introduction of the amendments.
16 When the appeal was lodged the Appeals Registrar considered the appeal to be heard pursuant to s 96 and conducted as a hearing de novo before a single judge. Consequently, the matter was listed for a directions hearing on 25 June 2007 before me.
17 The term “proceedings” is defined in s 4(1) of the Act as “a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding.” However the terms “instituted” or “institution” are not defined in the Act. I think that this term is the key word in interpreting upon which law the appeal lies.
18 The father, in his written submissions, refers to the Full Court decision in Good and Good (1982) FLC 91-249 which deals with the institution of proceedings in relation to s 44(3) of the Act. The Full Court said:
“…once the husband had made his application under sec. 78 there were between the parties properly instituted proceedings falling within para. (ca). It was then open to either party at any time while these proceedings were pending to file further applications or cross-applications or to amend pleadings to seek orders with respect to the property of the parties under sec. 78 or 79 without seeking leave under sec. 44(3). Such further applications or amendments should not, in our view, be regarded
(Page 6)
as the institutions of proceedings under para. (ca) for the
purposes of sec. 44(3)” [emphasis added]
19 Further, s 25 of the Jurisdiction of Courts (Family Law) Act, which amends s 94A of the Act, differs in its use of the word “proceedings”. It provides:
“(5) If, in proceedings in the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia, being proceedings in which a decree or decision to which subsection 94AAA(1A) applies could be made, a question of law arises which:..”
20 It could be suggested from the differing use of the term proceedings, the terms “proceedings instituted” Parliament was intending to refer to the substantive proceedings.
21 Based on the wording of s 27(2) of the amending Act, and the date the original application was filed, I am of the opinion that the institution of these proceedings occurred when the father filed his application in February 2005. Therefore, the matter should be heard as a de novo before a single judge of the Family Court of Western Australia.
Mother’s position
22 The mother wants to go [overseas] to visit her mother, who is ill with heart disease. She is particularly concerned that her mother’s health is precarious, and she is anxious to see her mother as soon as possible, as well as giving [M] the opportunity to meet her grandmother and other members of her extended family. She concedes that it would be cheaper if her mother came to Australia, but she says that she is not well enough to travel.
23 The mother does not consider herself a risk to stay [overseas]. She says she has made efforts to stay in Australia. She became an Australian citizen in February 2007 and has built a life here for her and her daughter. She says she has made many friends through her [community] Church and has the benefit of her sister and her three children living in Perth. Further, she has commenced [formal studies in English] and has enrolled [M] in kindergarten for 2008.
24 Although the mother acknowledges that the Australian Government has issued warnings for Australians travelling [overseas], she says they are mainly centred around [a particular] region, which
(Page 7)
is an area she does not intend to travel near. She says she does not intend to travel to tourist areas. The mother says that she is familiar with the area and, therefore, knows what areas to avoid.
25 The mother also recognises that the medical treatment available [overseas] is not at the same level as in Australia. Consequently, she plans to take out comprehensive travel insurance. She also says that if she is permitted to go, she intends to contact her doctor in relation to any immunizations that are required.
26 The mother says that she is unable to provide any security as she is in a financially difficult situation. She is currently living in rental accommodation provided through her Church and is on the waiting list for Homeswest housing. She is currently studying and receives Centrelink benefits and $100 per week from the father for child support. The trip [overseas] has been funded by friends from her Church and, as such, she does not have any extra funds to provide security.
27 If [M] is not permitted to go [overseas], then the mother will not go. Further, she says that if she did not consider the trip to be safe, she would not be going.
Father’s position
28 The father objects to the wife taking [M] [overseas]. He is particularly concerned about the travel warnings which have been issued by the Department of Foreign Affairs and Trade (“DFAT”).
29 The father believes that the mother has minimised his role in [M]’s life and has made it difficult for him to see her. The father says that he comes to Perth approximately once a month to visit [M]. He says during 2006 he saw [M] on approximately 16 occasions.
30 The father raises the following concerns over [M] travelling
[overseas]:
(a)
if the mother is permitted to travel [overseas] with [M] she will not return to Australia. He is critical of the mother and says that she has been dishonest since they married;
(b) a travel warning has been issued by DFAT; (c) risk of terrorists attacks; (d) civil unrest and political tension; (Page 8) (e) a high risk of road accidents due to poor driving conditions; (f)
poor level of medical treatment and there would be no medical insurance for [M] if she travels [overseas]; and
(g)
[the overseas country] is not a signatory to the Hague Convention.
31 The father is concerned that as [M] is only young, spending 12 weeks away from him may cause difficulties when contact resumes. He says that he has no objection to the mother travelling [overseas] on her own, and he is capable of caring for [M] during that time.
The Law
32 The Act states that when making a parenting order the paramount consideration to be taken into account by the Court is the best interests of the child.
33 Both parties put forward relevant considerations to be taken into account in determining whether it is in the best interest of [M] to go [overseas].
34 The father focused predominantly on the issues of safety and instability [overseas]. In V and V (2004) FLC 93-201 Rowlands J dismissed the father’s application for an order permitting him to take the child on a holiday to Dubai. His Honour particularly relied on the travel warning issued by the Australian Government:
“The Court, while wholly independent of the executive branch of government, should generally accept a statement of this kind by the specialist federal government department on overseas affairs unless there is real reason to doubt its accuracy or good faith. The Court cannot itself conduct an independent investigation of the issue.”
| 35 | His Honour went on to say: “Certainly I can accept that a government department for all sorts of reasons may err on the side of caution in these types of publications. I also accept that a parent may have unrealistic fears for the safety of a young child. |
(Page 9)
Here there is not convincing attack upon the worth of the
Department’s advice.”
36 The mother referred the Court to the decisions in Kuebler and Kuebler (1978) FLC 90-434 and Line and Line (1997) FLC 92-729.
| 37 | The Full Court in Kuebler (supra) said: “[T]he considerations that should be given to an application which involves the custodial parent taking a child out of the jurisdiction, without being exhaustive, would be these: | |||||||||
|
38 In Line and Line (supra) the Full Court, in determining the appropriate level of security to be paid by the wife, considered the factors outlined in Kuebler (supra) and drew attention to four other principles they believed to be appropriate:
(a) two-fold consideration regarding the purpose of security: (i) to provide a sum which will realistically entice the
person removing the children to return; and(ii) to provide a sum to adequately provision the party remaining in Australia, to take action for the return of the children;
(b)
the degree of risk that the departing parent will choose not to return;
(c)
whether the country to which the parent intends to travel with the children is or is not a signatory to the Hague Convention on Child Abduction;
(d)
the financial circumstances of both parties and the relative hardship imposed on the departing parent by fixing security at a particular level as compared with the hardship which
(Page 10)
the non-departing parent would suffer if security were fixed
at a lower level.
39 In relation to the country being a signatory to the Hague Convention the Full Court went on to say:
“…the Court would have to bear in mind that, even if the designated destination is a convention country, once the departing parent has left Australia there may be little to prevent him or her deviating from that designated destination to another destination in a non-convention country or, after going to the designated destination, from then travelling on to a non- convention country.”
Analysis and Conclusion
40 Despite the father’s concerns that the mother’s mother is not as ill as she says, I am of the opinion that the mother’s application is bona fides. There was no evidence to suggest that the trip is simply a holiday for the mother and child. It appears clear that the mother’s intentions are to visit her sick mother and give her daughter the opportunity to meet her grandmother and other members of her extended family.
41 The mother intends to stay [overseas] for 12 weeks. Although this is quite a lengthy period of time, [M] is not of an age where it will affect her schooling. She is not enrolled to start kindergarten until 2008. I appreciate the husband raises concerns about the interruption and difficulties it may cause to his contact with [M], however; I note that the father has moved to Sydney on his own volition. The mother says that between 2 December 2006 and 28 April 2007 the husband had no contact with [M], some four and a half months. She says that this was not through her actions, as she has never refused contact. Further, there was no contact by telephone or letters. I do not consider that the intended period of travel will be the cause of any difficulties when contact resumes between [M] and her father.
42 Clearly, one of the most contentious issues in permitting the mother to go is the risk associated with travelling [overseas]. The Australian Government has issued travel warnings, particularly in relation to terrorist attacks. I acknowledge the comments made by Rowland J in V and V, however; in that case the proposed trip was for the purposes of a holiday to meet up with friends from the United Kingdom, and Dubai was roughly half-way between United Kingdom
(Page 11)
and Australia and it offered tourist resorts. The mother in this case has lived [overseas] up until approximately three years ago and the purposes of her trip is to visit her sick mother and other family members whom [M] has never had the opportunity to meet. She is well aware of the dangers and difficulties which could be experienced [overseas]. I am of the opinion that she will take all necessary precautions to ensure the health and safety of [M].
43 While [the overseas country] is not a signatory to the Hague Convention, I am satisfied the mother has made efforts to establish a life for herself and her daughter in Australia. I am of the opinion that the risk of her not returning to Australia would be small. She acknowledges in her affidavit that [M] will have a better life in Australia and she could not give her the opportunities she wants for her [overseas].
44 It does not appear that the mother has the financial resources to provide a security for [M]’s return. She is on Centrelink benefits and received the money for this trip through friends from her Church. As the risk of her not returning is very low this should not be a factor which would restrain me from making the order sought.
45 Finally, I do not consider the husband’s proposal to care for [M] if the mother goes [overseas] on her own to be appropriate. Since the parties separated it does not appear that [M] has had any overnight contact with her father let alone the fact that he now resides in another state and she would have to stay with him in unfamiliar surroundings for 12 weeks.
Proposed Orders
1 The husband’s appeal filed on 12 June 2007 be dismissed.
2 Immediately upon the mother’s return to Perth, the mother return the child’s, [M] passport to the Principal Registrar of the Family Court of Western Australia for safe keeping, subject to further order of the Court.
I certify that the preceding [45] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
3
0
2