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

More documents

Recommendations

Info

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
Page 1 and 2: JURISDICTION:FAMILY COURT OF WESTER
Page 3 and 4: Solicitors:Appellant:Respondent:Dim
Page 5: 7 The mother filed an application f
Page 9 and 10: (e) a high risk of road accidents d
Page 11 and 12: the non-departing parent would suff

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

Create successful ePaper yourself

Delete template?

Save as template?