Lorreck and Watts (No 2)
[2016] FamCAFC 42
•23 March 2016
FAMILY COURT OF AUSTRALIA
| LORRECK & WATTS (NO. 2) | [2016] FamCAFC 42 |
| FAMILY LAW – APPEAL – CHILDREN – Where the mother appeals against final parenting orders which permitted the father to take the children to Europe for a holiday and dismissed her application that the Court hold the children’s passports and transfer the proceedings to the Cairns Registry of the Federal Circuit Court – Where children holidayed in Europe and returned to Australia as planned – Where the parties agreed that the primary judge determine the applications in chambers in Canberra – Where as a consequence of the making of final parenting orders there were no proceedings to transfer – Where the mother did not formulate her remaining grounds in a manner which could establish an error of law– Appeal dismissed – No order as to costs. FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where the father sought on appeal that a vexatious proceedings order be made per s 102QB of the Family Law Act 1975 (Cth) – Where such an order was not sought at first instance – Where the mother opposes the making of such an order on the basis that her conduct does not meet the requirements of s 102QB of the Act – Whether a Court exercising appellate jurisdiction is invested with power pursuant to s 102QB to make, in the first instance, a vexatious proceedings order – Where the father failed to establish the elements required in s 102QB – Application dismissed. |
| Family Law Act 1975 (Cth): ss 4(1), 94AAA(3), 102Q(1), 102QB |
| Lorreck & Watts [2012] FamCAFC 75 Lorreck & Watts [2013] FamCAFC 66 Lorreck & Watts (No 2) [2013] FamCAFC 128 |
| APPELLANT: | Ms Lorreck |
| RESPONDENT: | Mr Watts |
| FILE NUMBER: | CAC | 23 | of | 2009 |
| APPEAL NUMBER: | EA | 114 | of | 2015 |
| DATE DELIVERED: | 23 March 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 8 March 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 June 2015 |
| LOWER COURT MNC: | [2015] FCCA 1653 |
REPRESENTATION
| FOR THE APPELLANT: | Ms Lorreck appeared in person via video link |
| FOR THE RESPONDENT: | Mr Watts appeared in person via video link |
Orders
The appeal be dismissed.
The father’s application for a vexatious proceedings order be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lorreck & Watts (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 114 of 2015
File Number: CAC 23 of 2009
| Ms Lorreck |
Appellant
And
| Mr Watts |
Respondent
REASONS FOR JUDGMENT
By Notice of Appeal filed 17 July 2015 Ms Lorreck (“the mother”) appeals against orders made on 19 June 2015 by Judge Neville which permitted Mr Watts (“the father”) to take their sons to Europe for a holiday in September 2015. His Honour also refused the mother’s application that the Court hold the children’s passports and that the proceedings be transferred to the Federal Circuit Court Registry in Cairns. The father and children holidayed in Europe as planned and returned to Australia without difficulty.
Both parties appeared on the appeal without legal representation. The mother appeared by video link from the Court in Cairns and the father appeared by video link from the Court in Canberra. It needs to be understood these are very experienced family law litigants who, since they separated in November 2008, have engaged in almost non-stop litigation about their children both at first instance and on appeal. The history of their care of the children and family law litigation (undertaken prior to this round) is comprehensibly set out in their three appeals judgments published as Lorreck & Watts [2012] FamCAFC 75, Lorreck & Watts [2013] FamCAFC 66 and Lorreck & Watts(No 2) [2013] FamCAFC 128.
It is noteworthy that the third appeal concerned the mother’s challenge to orders made by the same judge which enabled the father to take the children on an overseas trip (which he did) and that the children could be issued with Australian passports without the mother’s consent. Notwithstanding the mother’s lack of success in the third appeal, her appeal on this occasion is presented in remarkably similar terms.
Pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) the Chief Justice directed that this appeal be determined by a single judge.
The hearing at first instance
The father commenced proceedings in the Federal Circuit Court on 22 December 2014 seeking the Court’s permission to take the children to Europe in September 2015. Before the father commenced proceedings he attempted in vain to persuade the mother to give her consent to the proposed trip.
The mother formalised her opposition in her Response filed on 17 March 2015.
The orders sought by the father are set out below:
1.Approval to obtain 17 extra days (between 1st Sept 15 and 17th Sept 15) with my children, [X] and [Y], in addition to the allocated Spring Holiday in 2015 (commencing on 18th Sept 15 and ending on 5th Oct 2015.
2.Approval to take my children [X] and [Y] for a holiday in Europe in September 2015 for a period of approximately 3 to 4 weeks.
The orders sought by the mother were as follows:
1That the Father be restrained from taking the children, [X] ( Born [2002]) and [Y] (Born [2007]) outside of Australia.
2That the Father deliver up the Children’s Passports to the Court.
3The [sic] the Australian Federal Police place [X] (Born [2002]) and [Y] (Born [2007]) on the Airport Watch List.
4That the Australian Federal Police assist with the implementation of these orders.
5That the matter be transferred to the Federal Circuit Court in Cairns, North Queensland.
As his Honour pointed out, in her Summary of Argument the mother argued that the proposed holiday should take place during the December 2015 school holidays. Her point being, that the children would not need to miss school and would not spend more time with the father than is provided for in the orders made in the first appeal.
In any event, it would seem that in response to the mother’s application to change the venue of the proceedings the parties were asked whether the applications could be determined by written submissions; that is, in chambers and without cross-examination. The parties agreed to this approach albeit, the mother also filed an Application (on 17 March 2015) seeking that the primary judge be recused and the proceedings allocated to a different judge. It was agreed that this application would also be determined by written submissions considered in chambers.
In the course of formalising the trial directions his Honour invited the parties to consider whether they could agree to vary the operative orders so as to facilitate overseas travel for the children on conditions acceptable to them both. There was no consensus and his Honour determined he ought not determine a dispute which was not formally part of either party’s application and which had the potential to be even more contentious than the matter at hand.
Written submissions, which were variously described as summaries of argument or outlines of arguments, were duly filed.
On 19 June 2015, his Honour pronounced orders and published his reasons for judgment. It was ordered:
1.The Application in a Case, filed by the Mother on 17th March 2015, be dismissed.
2.To the degree necessary, the Orders made by this Court on 10th December 2012 ([Watts] & [Lorreck] [2012] FMCAfam 1499) and not disturbed on appeal ([Lorreck] & [Watts] (No.2) [2013] FamCAFC 128) are confirmed.
3. Otherwise, the orders sought by the Father be made thus:
a.Approval to obtain 17 extra days (between 1st September 2015 and 17th September 2015) with the children [X] and [Y], in addition to the allocated Spring Holiday in 2015 (commencing on 18th September 2015 and ending on 5th October 2015)
b.Approval to take the children [X] and [Y] for a holiday in Europe in September 2015 for a period of approximately 3 to 4 weeks.
The grounds of appeal
The mother mounts four challenges to the orders. They are:
1.His Honour failed to grant the respondent mother’s request to change the jurisdiction from Canberra to Cairns.
2.His Honour failed to address Order 2 that the father deliver up the children’s passports to the Court/Registry for the future.
3.The respondent mother was not provided procedural fairness – with respect to acting as a self-represented litigant (in reference to reasons for judgment).
4.His Honour did not rely on previous filed material – in relation to the respondent mother filing of [sic] a Notice of Risk – with the Response (filed on 17 March 2015).
Ground 1 – Change of Venue
The challenge raised by this ground appears to be focused on his Honour’s decision to not transfer the proceedings finalised by his orders. If per chance the mother also seeks to challenge the fact that the proceedings were determined by his Honour in chambers in Canberra, she cannot succeed. The point being, his Honour invited the parties to address him on the process for determination of the applications, and his Honour (subject to the recusal application which was properly dismissed) did no more than the parties agreed he should. Having agreed to that course, the mother could not complain (if indeed she does) about it on appeal.
The focus of the mother’s challenge is on [94] of his Honour’s reasons where he explained why the proceedings should not now be transferred to Cairns. At [94] his Honour said:
First: the Mother’s Response sought to have the proceedings transferred to the Cairns Registry of this Court. I need only note that because the Father’s substantive Application has now been disposed of, there is, formally speaking, nothing to transfer. Further, should it need to be noted, over the years of contest, the matter now has occupied multiple judicial officers from this Court (and the Family Court). To transfer it to another registry of this Court would only mean yet another judge has to be involved. It might be considered a form of “judge shopping,” as I have said. If and when the next application is filed, any transfer can then be addressed.
There is no doubt that his Honour’s orders were final orders as a consequence of which, as his Honour explained, there were no proceedings to transfer. His Honour did not err.
Of course a venue related decision is a matter of practice and procedure and interlocutory in nature. Not only has the mother failed to demonstrate error by the primary judge there is no basis on which she could properly be granted leave.
Ground 2 – The Children’s Passports
By this ground, the mother asserts that the primary judge failed to consider her application for orders which would see the children’s passports held by the Court and released to one or other of the parties upon certain conditions.
As was correctly submitted by the father, his Honour did not overlook this aspect of the mother’s Response. At [100] of his Honour’s reasons for judgment he said:
For completeness, because the travel application has been dealt with, and the Mother does not propose travelling overseas, it is unnecessary to consider her order sought for the [children’s] passports to be kept at Court upon their return from [Europe].
Reference should also be made to [91] where his Honour said:
Indeed, the only basis on which the original travel orders might, at any stage, require amendment is (a) if the Mother wished to travel overseas with the [children], and (b) if the Father did not agree with such a proposal. On the Mother’s evidence, however, this would be to look too far in to the future.
It follows that not only does the mother’s ground misstate the facts in those two paragraphs his Honour explained why it was that the mother’s application to have the children’s passports held by the Court would not be granted. This was quintessentially a matter for his Honour and the mother has failed to establish that his Honour erred.
Ground 3 – Procedural Fairness
Rather than paraphrase the mother’s submissions made in support of this challenge, which challenge is so lacking specificity it could not of itself succeed, the better course is to set out in full the submissions in support of it:
His Honour’s consideration of the evidence
37)In reference to Paragraph 15 of His Honour’s reasons for judgment (Page 26, Appeal Book (Volume 1). His Honour primarily deals with the travel application and the recusal application at great lengths. Paragraphs 15-19 deal solely with emails sent to the Associate in response to the controversial emails sent to the Associate disfavouring and discrediting the Mother at every opportunity.
Paragraph 15. Despite regularly asking, and sometimes warning, the parties (*unfortunately, it should be noted that these and similar remarks are directed primarily to the Mother”.)
38)The Mother was simply requesting leave for hearings, as Video link was never offered as a suggested means. The Mother was ordered to physically attend two hearings scheduled for the 31st of March (Paragraph 19, Page 29 of Appeal Book) and for the final Hearing.
In an email to the Associate dated 11 June, the Mother outlined that “I did not have at that time the level of funding to take to children on an extended European Holiday, nor was I intending to take them out of school in the near future or at any time”. The Mother purely outlined that she had to pay for certain flights [Appeal orders dated 4 April 2013, EA 139 of 2012] for the children to spend time with their Father. The Mother reiterated that: (email to the Associate, dated 11 June 2015)
“I furthermore do not have the funding to do so. I had to pay $1650 to Qantas for the [children] to travel from Cairns to Canberra for the next School Holidays. There is now a $100 unaccompanied minor fee that was put into place as of 1st January 2015.”
39).It is submitted that His Honour has not relied on the Mother’s Affidavit Material filed on 17 March 2015 in relation to failing to address what the Mother outlined to be in the children’s best interests. In accordance to the ongoing contentious issues with the Father being overtly opposed to the Mother having sole parental responsibility for the children, The Father has persisted on taking the children out of their school routine, when the father could have taken two Children to Europe in December 2015 (First half of the school holidays). The Father has not always acted in the best interests of the children. The Father has never once visited the Children in Cairns since the Mother was able to change the children’s place or residence to cairns. The Father remains oppositional in his approach. The Mother is concerned that this will continue further as the request to have theatre transferred from 2012 was never addressed upon the Mother’s relocation to Cairns with the children.
40).It is further submitted that his Honour failed to take into consideration that the Mother was granted sole parental responsibility from 2 September 2011, orders made by Justice Brewster (formerly known as Federal Magistrate Brewster) His Honour failed to attribute the financial costs involved with having to fly from Cairns to Canberra on two separate occasions would in turn disadvantage the Mother more so. It is therefore submitted that His Honour erred in failing to attribute any or adequate weight to the Mother’s current or present financial position.
41).His Honour had formerly failed to attribute adequate weight to the Mother’s financial position in relation to orders made on the 21 September 2012. (Summary of Argument of Appellant Mother (dated 19 December 2012) Grounds, 1, 2 & 4 – [Paragraphs 8 – 25], pages 76-79 – Appeal Book (Volume 1).
(Summary of Argument of Appellant Mother filed 11 February 2016) (as per the original)
In circumstances where the father proposed that he would meet the entire cost of the children’s European holiday, the mother’s financial circumstances were irrelevant to whether or not the father should be permitted to take the children to Europe. Whatever relevance the mother may feel her financial circumstances had to that decision, she has not formulated her challenge or argument in support of it in a manner which could establish an error of law. This ground must fail.
Ground 4 – The Notice of Risk
The gravamen of this challenge is that his Honour failed to take into account various pieces of evidence relied upon by the mother in earlier proceedings and identified in a Notice of Risk she filed on 17 March 2015. His Honour dealt with the Notice of Risk and related material at [47] thus:
The Mother filed a Notice of Risk at the same time as her Response. In that Notice, the Mother simply referred to certain paragraphs of affidavits filed on 13th March 2015; this is clearly an error; no filing was made on that date; I assume the Mother meant to refer to her affidavit filed 17th March. The Mother also referred to certain paragraphs in an affidavit filed in March 2011 and more generally to reports from 2011. This affidavit (and the other material) was obviously filed in the substantive proceedings before another Judge of this Court in 2011. The utility of using such material in the current application, and so many years after the matter was determined in this Court, and later in the Full Court, is not evident. Accordingly, I will only have regard to the Mother’s more recently filed material.
Quite properly no challenge is made to his Honour’s reference to the fact that this evidence was of some antiquity and had been considered previously at first instance. It is also appropriate to observe that this evidence was filed prior to the three appeals to which reference has already been made. However, and fatal to this challenge, is that the mother’s position before his Honour was that the father could take the children to Europe in the December 2015 school holidays but not, as he proposed, in September 2015. Considered in this light, it is easy to understand why his Honour, in effect, determined that the evidence identified in the Notice of Risk was irrelevant to the matter at hand. Neither the written or oral submissions presented by the mother to his Honour or on appeal provide any basis upon which this Court could determine that his Honour erred by adopting the approach he did. This ground has not been made out.
A vexatious proceedings order?
In his Summary of Argument, the father contended a vexatious proceedings order should be made against the mother “to prevent further proceedings to the courts on matters of international travel, flight risk and domestic violence allegations”. Although an application for such an order ought to have been included in a formal application, the magnitude of the mother’s persistent non-compliance with orders made in relation to this appeal made it very difficult for the father to prepare and present his response to it. As the mother was given great latitude and it is appropriate that some latitude is also extended to the father.
It is his submission that the mother’s approach to these issues has been “vexatious, unmeritorious and harassing in nature” (Respondent father’s Summary of Argument at [26]). In support of a vexatious proceedings order he pointed to the mother’s lack of success in resisting his first application to take the children overseas (Asia), her lack of success on the third appeal (concerned with the trip to Asia), her lack of success in resisting his application for permission to take the children to Europe and what he assumed would be her lack of success on this appeal.
The mother opposes a vexatious proceedings order against her and points out that she was successful in the first and second appeals and submits that a proper analysis of the litigation to date would not establish that she has “frequently instituted or conducted vexatious proceedings in Australian courts or tribunals” (s 102QB(1)(a)). I am inclined to agree. Although she has been unsuccessful on the occasions identified by the father it is difficult to see how her lack of success and approach to these actions could properly be categorised as a vexatious proceeding as that term is defined in s 102Q(1) of the Act.
However, it is appropriate to record that I have some disquiet about whether a Court exercising appellate jurisdiction is invested with power pursuant to s 102QB to make, in the first instance, a vexatious proceedings order. I have been unable to find examples where this or any other intermediate Court of Appeal has done so or considered this issue.
Section 102QB applies if a court exercising jurisdiction in “proceedings” under the Act is satisfied of the matters contained in the provision. Thus a court is defined in the widest terms and prima facie would include a court exercising appellate jurisdiction. However, the words “proceedings” is defined in s 4(1) of the Act to mean “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”. The definition does not make reference to an appeal and that term is separately defined in s 4(1). This tends to suggest, that in the first instance, it is a power vested in courts exercising original but not appellate jurisdiction. Without intending any disrespect to the parties, they were not able to assist me in relation to the point. Of course, a counter-argument may be that an appeal is a process “in connexion with a proceeding”.
Given that the father failed to establish the elements required in s 102QB and I did not have the benefit of argument on the point, this is an issue which can be considered on another occasion.
Costs
In the event he was successful, the father said there should be no order as to costs. I agree.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 23 March 2016.
Associate:
Date: 23 March 2016
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