Y and M [2007] - Family Court of Western Australia

JURISDICTION:FAMILY COURT OF WESTERN AUSTRALIAACT: FAMILY LAW ACT 1975LOCATION:PERTHCITATION: Y and M [2007] FCWA 89CORAM:PENNY JHEARD: 4 JULY 2007DELIVERED: 18 JULY 2007FILE NO/S: PT 941 of 2005BETWEEN:YAppellant/FatherANDMRespondent/Mother

Catchwords:Father's appeal against order to allow mother to remove child from WesternAustralia for a trip [overseas] - appeal dismissedLegislation:Family Law Act 1975Jurisdiction of Courts (Family Law) Act 2006 - s 27(2)Category:Not ReportableRepresentation:Counsel:Appellant:Respondent:Ms D DimondMs S Strapps

Solicitors:Appellant:Respondent:Dimond Family LawyersWomen's Law CentreCase(s) referred to in judgment(s):Good and Good (1982) FLC 91-249Kuebler and Kuebler (1978) FLC 90-434Line and Line (1997) FLC 92-729V and V (2004) FLC 93-201

1 The application before the Court is the father’s appeal filed on 12June 2007 from the orders made by Magistrate Moroni permitting themother to remove the parties’ child from Western Australia for a 12week trip [overseas].Background2 Both parties were born [overseas]. The father is 45 years of ageand the mother is 37 years of age. The parties met [overseas] andwere married in [the capital city] in June 2003. Shortly after theirmarriage the parties moved to Australia. Approximately one monthlater, the parties’ only child, [M], was born in March 2004.3 The parties separated in September 2004 and since separation therelationship between them has been poor. Certain allegations havebeen made by the parties during these proceedings, however; they arenot 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 thoseproceedings are still on foot, little has occurred in the way of theirfinalisation.5 The parties agreed to interim orders on 20 April 2005 that [M]would reside with the mother and she would be responsible for herday-to-day care, welfare and development. The father was to havesupervised contact with [M] on four occasions of 2 hours durationprior to 2 May 2005 and thereafter for periods of 2 hours on providingthe mother’s solicitors at least 7 days’ notice. The orders alsorequired [M]’s passport to be delivered up and held by the Court, andan injunction was granted restraining each party from removing [M]from Western Australia.6 Since the orders were made the father has relocated to [theEastern states] and continues to reside there. According to the mother,the father has not had a great deal of contact with [M]. She says thathe has only seen [M] on three occasions in the last six months, being 2December 2006, 28 April 2006 and 29 April 2006. There has been nocontact by telephone or letters between the father and [M].

7 The mother filed an application for temporary orders on 21 May 2007to suspend for a 12 week period the contact arrangements currently inplace pursuant to the orders made on 20 April 2005. During that 12week period the mother seeks to remove [M] from Western Australiafor the purposes of travelling [overseas].8 The mother’s application was heard on 11 June 2007. The fatherfiled a responding application at the commencement of the hearingobjecting to the mother accessing [M]’s passport and travelling[overseas]. At the conclusion of the hearing orders were made byMagistrate 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 anapplication for an urgent stay of the orders made by MagistrateMoroni, and sought an injunction restraining the mother fromremoving [M] from the Commonwealth of Australia.10 The Notice of Appeal was listed before me for a directionshearing on 25 June 2007, while the application to stay the orders waslisted before Magistrate Moroni on 18 June 2007.11 At the hearing on 18 June 2007 Magistrate Moroni granted a stayof the orders made on 11 June 2007 until the directions hearing beforeme on 25 June 2007. The matter came before me on that date and theapplication was adjourned to a special appointment before me on 4July 2007, at which time the appeal was adjourned for judgment.Appeal12 There was an issue as to whether the father needed leave toappeal the decision of the Magistrate. The Family Law Act 1975 hasrecently been amended by the Jurisdiction of Courts (Family Law) Act2006 which amends, amongst other things, the way in which an appealfrom a Western Australian Magistrate is dealt with.13 Prior to the amendments an appeal from a decision of aMagistrate did not require leave and was conducted pursuant to s 96as a hearing de novo before a single judge of the Family Court ofWestern Australia. Appeals from Magistrates are now dealt withunder s 94AAA which provides that the jurisdiction in relation to anappeal of a decision of a Magistrate of Western Australia is to beexercised by a Full Court unless the Chief Judge considers itappropriate for the jurisdiction to be exercised by a single Judge.

14 Whether or not the father requires leave depends on theinterpretation of the commencement of the new provisions. Section27(2) of the Jurisdiction of Courts (Family Law) Act deals with thecommencement date of the relevant amended appeal section. Itprovides:“The amendments made by items 1, 2, 4, 6, 7, 9, 19, 20 to 24 and26 apply to proceedings instituted after the commencement ofthis Part in the Magistrates Court of Western Australiaconstituted by a Family Law Magistrate of Western Australia”15 The procedure to be followed in relation to the father’s appealdepends on the interpretation of the terms “proceedings instituted”.The father’s originating application was filed in 2005, prior to theintroduction of the amendments, however; the application before theCourt which is subject of the father’s appeal was filed in 2007, afterthe introduction of the amendments.16 When the appeal was lodged the Appeals Registrar consideredthe appeal to be heard pursuant to s 96 and conducted as a hearing denovo before a single judge. Consequently, the matter was listed for adirections hearing on 25 June 2007 before me.17 The term “proceedings” is defined in s 4(1) of the Act as “aproceeding in a court, whether between parties or not, and includescross-proceedings or an incidental proceeding in the course of or inconnexion with a proceeding.” However the terms “instituted” or“institution” are not defined in the Act. I think that this term is thekey word in interpreting upon which law the appeal lies.18 The father, in his written submissions, refers to the Full Courtdecision in Good and Good (1982) FLC 91-249 which deals with theinstitution of proceedings in relation to s 44(3) of the Act. The FullCourt said:“…once the husband had made his application under sec. 78there were between the parties properly instituted proceedingsfalling within para. (ca). It was then open to either party at anytime while these proceedings were pending to file furtherapplications or cross-applications or to amend pleadings to seekorders with respect to the property of the parties under sec. 78 or79 without seeking leave under sec. 44(3). Such furtherapplications or amendments should not, in our view, be regarded

as the institutions of proceedings under para. (ca) for thepurposes 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 WesternAustralia constituted by a Family Law Magistrate of WesternAustralia, being proceedings in which a decree or decision towhich subsection 94AAA(1A) applies could be made, a questionof law arises which:..”20 It could be suggested from the differing use of the termproceedings, the terms “proceedings instituted” Parliament wasintending to refer to the substantive proceedings.21 Based on the wording of s 27(2) of the amending Act, and thedate the original application was filed, I am of the opinion that theinstitution of these proceedings occurred when the father filed hisapplication in February 2005. Therefore, the matter should be heardas a de novo before a single judge of the Family Court of WesternAustralia.Mother’s position22 The mother wants to go [overseas] to visit her mother, who is illwith heart disease. She is particularly concerned that her mother’shealth is precarious, and she is anxious to see her mother as soon aspossible, as well as giving [M] the opportunity to meet hergrandmother and other members of her extended family. Sheconcedes that it would be cheaper if her mother came to Australia, butshe 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 anAustralian citizen in February 2007 and has built a life here for herand her daughter. She says she has made many friends through her[community] Church and has the benefit of her sister and her threechildren living in Perth. Further, she has commenced [formal studiesin English] and has enrolled [M] in kindergarten for 2008.24 Although the mother acknowledges that the AustralianGovernment has issued warnings for Australians travelling [overseas],she says they are mainly centred around [a particular] region, which

is an area she does not intend to travel near. She says she does notintend to travel to tourist areas. The mother says that she is familiarwith 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, sheplans to take out comprehensive travel insurance. She also says that ifshe is permitted to go, she intends to contact her doctor in relation toany immunizations that are required.26 The mother says that she is unable to provide any security as sheis in a financially difficult situation. She is currently living in rentalaccommodation provided through her Church and is on the waitinglist for Homeswest housing. She is currently studying and receivesCentrelink benefits and $100 per week from the father for childsupport. The trip [overseas] has been funded by friends from herChurch and, as such, she does not have any extra funds to providesecurity.27 If [M] is not permitted to go [overseas], then the mother will notgo. Further, she says that if she did not consider the trip to be safe,she would not be going.Father’s position28 The father objects to the wife taking [M] [overseas]. He isparticularly concerned about the travel warnings which have beenissued 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 saysthat he comes to Perth approximately once a month to visit [M]. Hesays 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] shewill not return to Australia. He is critical of the mother andsays 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;

(e) a high risk of road accidents due to poor driving conditions;(f)poor level of medical treatment and there would be nomedical insurance for [M] if she travels [overseas]; and(g) [the overseas country] is not a signatory to the HagueConvention.31 The father is concerned that as [M] is only young, spending 12weeks away from him may cause difficulties when contact resumes.He says that he has no objection to the mother travelling [overseas] onher own, and he is capable of caring for [M] during that time.The Law32 The Act states that when making a parenting order the paramountconsideration to be taken into account by the Court is the best interestsof the child.33 Both parties put forward relevant considerations to be taken intoaccount in determining whether it is in the best interest of [M] to go[overseas].34 The father focused predominantly on the issues of safety andinstability [overseas]. In V and V (2004) FLC 93-201 Rowlands Jdismissed the father’s application for an order permitting him to takethe child on a holiday to Dubai. His Honour particularly relied on thetravel warning issued by the Australian Government:“The Court, while wholly independent of the executive branch ofgovernment, should generally accept a statement of this kind bythe specialist federal government department on overseas affairsunless there is real reason to doubt its accuracy or good faith. TheCourt cannot itself conduct an independent investigation of theissue.”35 His Honour went on to say:“Certainly I can accept that a government department for all sortsof reasons may err on the side of caution in these types ofpublications.I also accept that a parent may have unrealistic fears for thesafety of a young child.

Here there is not convincing attack upon the worth of theDepartment’s advice.”36 The mother referred the Court to the decisions in Kuebler andKuebler (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 applicationwhich involves the custodial parent taking a child out of thejurisdiction, without being exhaustive, would be these:(a) The length of the proposed stay out of the jurisdiction;(b) The bona fides of the application;(c) The effect on the child of any deprivation of access;(d) Any threats to the welfare of the child by the circumstancesof the proposed environment;(e) The degree of satisfaction in which the Court based itsassessment of the parties that a promise of a return to thejurisdiction would be honoured.”38 In Line and Line (supra) the Full Court, in determining theappropriate level of security to be paid by the wife, considered thefactors outlined in Kuebler (supra) and drew attention to four otherprinciples they believed to be appropriate:(a) two-fold consideration regarding the purpose of security:(i) to provide a sum which will realistically entice theperson removing the children to return; and(ii) to provide a sum to adequately provision the partyremaining in Australia, to take action for the return of thechildren;(b) the degree of risk that the departing parent will choose notto return;(c) whether the country to which the parent intends to travelwith the children is or is not a signatory to the HagueConvention on Child Abduction;(d) the financial circumstances of both parties and the relativehardship imposed on the departing parent by fixing securityat a particular level as compared with the hardship which

the non-departing parent would suffer if security were fixedat a lower level.39 In relation to the country being a signatory to the HagueConvention the Full Court went on to say:“…the Court would have to bear in mind that, even if thedesignated destination is a convention country, once thedeparting parent has left Australia there may be little to preventhim or her deviating from that designated destination to anotherdestination in a non-convention country or, after going to thedesignated destination, from then travelling on to a nonconventioncountry.”Analysis and Conclusion40 Despite the father’s concerns that the mother’s mother is not asill as she says, I am of the opinion that the mother’s application isbona fides. There was no evidence to suggest that the trip is simply aholiday for the mother and child. It appears clear that the mother’sintentions are to visit her sick mother and give her daughter theopportunity to meet her grandmother and other members of herextended family.41 The mother intends to stay [overseas] for 12 weeks. Althoughthis is quite a lengthy period of time, [M] is not of an age where it willaffect her schooling. She is not enrolled to start kindergarten until2008. I appreciate the husband raises concerns about the interruptionand difficulties it may cause to his contact with [M], however; I notethat the father has moved to Sydney on his own volition. The mothersays that between 2 December 2006 and 28 April 2007 the husbandhad no contact with [M], some four and a half months. She says thatthis was not through her actions, as she has never refused contact.Further, there was no contact by telephone or letters. I do not considerthat the intended period of travel will be the cause of any difficultieswhen contact resumes between [M] and her father.42 Clearly, one of the most contentious issues in permitting themother to go is the risk associated with travelling [overseas]. TheAustralian Government has issued travel warnings, particularly inrelation to terrorist attacks. I acknowledge the comments made byRowland J in V and V, however; in that case the proposed trip was forthe purposes of a holiday to meet up with friends from the UnitedKingdom, and Dubai was roughly half-way between United Kingdom

and Australia and it offered tourist resorts. The mother in this casehas lived [overseas] up until approximately three years ago and thepurposes of her trip is to visit her sick mother and other familymembers whom [M] has never had the opportunity to meet. She iswell aware of the dangers and difficulties which could be experienced[overseas]. I am of the opinion that she will take all necessaryprecautions to ensure the health and safety of [M].43 While [the overseas country] is not a signatory to the HagueConvention, I am satisfied the mother has made efforts to establish alife for herself and her daughter in Australia. I am of the opinion thatthe risk of her not returning to Australia would be small. Sheacknowledges in her affidavit that [M] will have a better life inAustralia and she could not give her the opportunities she wants forher [overseas].44 It does not appear that the mother has the financial resources toprovide a security for [M]’s return. She is on Centrelink benefits andreceived the money for this trip through friends from her Church. Asthe risk of her not returning is very low this should not be a factorwhich 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 theparties separated it does not appear that [M] has had any overnightcontact with her father let alone the fact that he now resides in anotherstate and she would have to stay with him in unfamiliar surroundingsfor 12 weeks.Proposed Orders1 The husband’s appeal filed on 12 June 2007 be dismissed.2 Immediately upon the mother’s return to Perth, the motherreturn the child’s, [M] passport to the Principal Registrar of theFamily Court of Western Australia for safe keeping, subject tofurther order of the Court.I certify that the preceding [45] paragraphs are a true copy of the reasons forjudgment delivered by this Honourable CourtAssociate