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

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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
Page 1 and 2: JURISDICTION:FAMILY COURT OF WESTER
Page 3 and 4: Solicitors:Appellant:Respondent:Dim
Page 5 and 6: 7 The mother filed an application f
Page 7 and 8: as the institutions of proceedings
Page 9: (e) a high risk of road accidents d

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

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