Lorreck and Watts (No 2)
[2013] FamCAFC 128
•26 August 2013
FAMILY COURT OF AUSTRALIA
| LORRECK & WATTS (NO. 2) | [2013] FamCAFC 128 |
| FAMILY LAW – APPEAL – CHILDREN – INTERNATIONAL TRAVEL – Where the mother appeals against orders of a Federal Magistrate authorising the father to apply for passports without the mother’s consent and to travel with the children overseas – Where the appellant mother alleges procedural unfairness because the Federal Magistrate failed to have regard to her Response and Affidavit – Where the appellant mother also alleges that the Federal Magistrate did not consider her application for change of venue, that the Federal Magistrate failed to consider that Vietnam was not a signatory to the Hague Child Abduction Convention, and complains of the delay in the publication of the Federal Magistrate’s reasons for judgment – Where no merit was found in the grounds of appeal – Appeal dismissed – No order for costs. |
| Hague Convention of the Civil Aspects of International Child Abduction Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
Richmond v BMW Australia Finance (No 2) (2009)174 FCR 232
Rollings v Rollings (2009) 230 FLR 396
| APPELLANT: | Ms Lorreck |
| RESPONDENT: | Mr Watts |
| FILE NUMBER: | CAC | 23 | of | 2009 |
| APPEAL NUMBER: | EA | 4 | of | 2013 |
| DATE DELIVERED:: | 26 August 2013 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Finn J |
| HEARING DATE: | 31 July 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | 10 December 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 1499 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person by video-link |
| COUNSEL FOR THE RESPONDENT: | In person |
Orders
The appeal be dismissed.
There be no order for costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lorreck & Watts has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA |
Appeal Number: EA 4 of 2013
File Number: CAC 23 of 2009
| Ms Lorreck |
Appellant
And
| Mr Watts |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Ms Lorreck (“the mother”) against orders made on
10 December 2012 by Federal Magistrate Neville (as he then was) which provided that the mother’s former husband, Mr Watts (“the father”) could take the two children of the parties’ marriage (being two boys then aged respectively 10 and 5) on an overseas trip on the condition that he provided , no later than 14 days before the trip, the mother with an itinerary for the trip, flight details and contact details for the children while overseas. His Honour’s orders also provided that the children could be issued passports without the mother’s consent.
I am determining this appeal as a single judge pursuant to arrangements made under s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
At the hearing of the appeal both parties appeared without legal representation, with the father being before me in Canberra and the mother being on a video-link from the court premises in Cairns.
Background
A history of the relationship between the mother and the father can be found in a judgment of the Full Court delivered on 7 June 2012. It is sufficient here to say that as a result of that judgment of the Full Court, the mother was permitted to move the children’s residence from Canberra to Cairns. The father, who is a member of the Australian Defence Forces, continues to live in Canberra. He has re-married. His new wife was born in Vietnam and migrated to Australia in 2001.
On 29 October 2012 the father filed an initiating application in the Canberra Registry of the Federal Magistrates Court (as it then was) seeking orders that the children be permitted to “travel internationally” and that they be issued with Australian passports without the consent of the mother.
In support of his application the father filed an affidavit, also on 29 October 2012, in which he explained that he wanted his sons to visit Vietnam to meet his new partner’s family and to gain an understanding of her cultural background. He also explained that the mother had refused to agree to the issue of passports to the two boys.
There was a further affidavit filed by the father on 27 November 2012 which, in summary, explained difficulties which he claimed he was having in serving his documents on the mother.
The father’s application was listed before Neville FM in a duty list at the Canberra Registry on 10 December 2012.
It is clear from the transcript of the hearing on 10 December 2012 that there was before the court that day a response (dated 7 December 2012) and an affidavit (dated 9 December 2012) from the mother.
In her response, the mother sought orders, either in the following terms, or to the following effect:
1.The children not be removed from Australia until they reach 18 years of age.
2.The father not be permitted to apply for Australian or foreign passports.
3.“The children alerts be kept in place until orders are made (FINAL)”.
4.“The children … be placed on the Airport Watch List by the Australian Federal Police.”
5.The matter be transferred to the Federal Magistrates Court in Cairns, Queensland.
6.“If the matter cannot be transferred to the Federal Magistrates Court, that the ICL represent the children ...”
The hearing on 10 December 2012 and the orders made that day
At the hearing on 10 December 2012 both parties appeared without legal representation. The father was in Canberra before his Honour and the mother was heard by telephone from Cairns.
The hearing was of short duration lasting, according to the transcript, only from 11:49am to 12:03pm. I will refer to various exchanges appearing in the transcript between the Federal Magistrate and the parties so far as they are relevant to the grounds of appeal when I discuss those grounds.
The transcript of the hearing on 10 December 2012 indicates that towards the end of that hearing the Federal Magistrate delivered a judgment in which he granted the father’s application.
The notice of appeal filed by the mother against the orders made by his Honour on 10 December 2012 has attached to it a copy of the orders in their sealed engrossed form. The notice of appeal is stamped as having been filed on
4 January 2013 and each page of the notice of appeal and each page of the attached copy of the sealed orders bears a facsimile date of 4 January 2013. It is thus clear that by 4 January 2013 the mother had received from the Federal Magistrates Court a copy of the orders made by the Federal Magistrate on
10 December 2012.
The orders in their sealed engrossed form contain the following notations and orders:
NOTING THAT (a) the Father maintains employment with the Australian Defence Forces and has indicated that he intends for the children to be absent from Australia for a period of 2 weeks only, and (b) the Mother raised her objection based on her distrust of the Father and her concern that he may retain the children outside of Australia for longer than the indicated time or indefinitely;
THE COURT ORDERS THAT:
1.The children … be allowed to travel internationally.
2.The children … be allowed to be issued an Australian passport, without the consent of the Mother, by the Department of Foreign Affairs and Trade.
3.The Father is to provide, not less than 14 days prior to the dates of travel, the following details; flight details, itinerary and contact details while overseas.
(Emphasis in original)
The reasons for judgment published on 13 March 2013
Subsequently on 13 March 2013, the Federal Magistrate published in settled form his reasons for judgment given orally on 10 December 2012. In the first paragraph of those settled reasons, his Honour explained that they had been “revised from those delivered on 10 December 2012 in the course of the duty list that day”.
Again I will refer to certain passages from his Honour’s settled reasons for judgment when I discuss the mother’s grounds of appeal. It is sufficient to explain at this point that his Honour concluded in his reasons (at [20]) that given that the father is a serving member of the Australian Armed Forces “it is unlikely in the extreme that the Father (and by inference his partner) pose any genuine or realistic risk of keeping the children overseas for an extended period or otherwise.” His Honour also concluded (at [21]) that an overseas holiday with their father would be “in the best interests of the children.”
The mother’s grounds of appeal
The mother’s notice of appeal contained the following four grounds of appeal:
1.The Respondent Mother was not provided procedural fairness. The Court did not have regard to the Respondent Mother’s Response and Affidavit evidence, prior to making the orders for the children to fly internationally.
2.The Court did not provide Reasons for Judgment when the orders of 10 December 2012 were pronounced.
3.His Honour failed to address Paragraph 5 of the Respondent Mother’s Response requesting a change in Jurisdiction.
4.The His Honour was in error and wrongly exercised his discretion.
The allegation that no regard was had to the mother’s response and affidavit (Ground 1)
By her first ground of appeal the mother asserts that prior to making his orders permitting the children to travel internationally, his Honour did not have regard to her response (dated 7 December 2012) and her affidavit (dated 9 December 2012).
The transcript of the hearing on 10 December 2012 reveals (at page 2) that when his Honour asked for confirmation that the mother opposed the father’s application, the mother, having provided such confirmation, then told his Honour that she had “submitted a response with an affidavit”.
His Honour then said that he understood that, but he wanted to hear her position from her. As I endeavoured to explain to the mother at the hearing of the appeal, it is not unusual for a judicial officer to ask a self-represented party to explain their case in their own words, notwithstanding that the judicial officer already has before him or her documents from that party. It is important to note that following that request from his Honour, the mother was then able to explain her concerns to him over nearly two pages of transcript.
Moreover, it is also clear from his Honour’s published reasons for judgment that the mother’s documents were before him on 10 December 2012 (see [13] and [14] of his Honour’s reasons for judgment).
For these reasons there is no merit in this first ground of appeal.
The alleged failure to provide reasons for judgment on 10 December 2012 (Ground 2)
In relation to the mother’s complaint that his Honour did not provide reasons for judgment when he “pronounced” his orders on 10 December 2012, it needs to be explained at the outset that his Honour was under no obligation to provide reasons at the same time as he made his orders (Richmond v BMW Australia Finance (No 2) (2009)174 FCR 232; Rollings v Rollings (2009) 230 FLR 396).
However, as mentioned earlier, the transcript of the hearing on 10 December 2012 indicates that his Honour did provide an oral judgment on that date, although it has to be inferred that that oral judgment must have been very brief because of the short time which the hearing as a whole occupied (at least as the times are indicated by the transcript).
It is unfortunate that his Honour was unable to publish his settled reasons for judgment until 13 March 2013 (although copies of his orders had clearly been received by the mother on or before 4 January 2013). Again as I endeavoured to explain at the hearing of the appeal, it must be remembered that the three month period between 10 December 2012 and 13 March 2013 covered the Christmas-New Year holiday period and for part of that period both the Federal Magistrates Court and the transcript provider would not have been operating.
It must also be remembered that the father’s application for permission to take the children abroad was in a duty list, in which there could well have been at least thirty other applications heard. Those applications are also likely to have involved oral judgments which his Honour would have had to settle and publish in due course.
The delay in the publication of his Honour’s settled reasons for judgment, while unfortunate, does not warrant appellate intervention and I therefore find there is no merit in the second of the mother’s grounds of appeal.
The failure to address the application for a change of venue for the proceedings (Ground 3)
It will be recalled that in her response document (dated 7 December 2012), the fourth order sought by the mother was that the matter be transferred to the Federal Magistrates Court in Cairns.
At the outset of the hearing before the Federal Magistrate, his Honour said, “Now, my understanding is that the only issue for the court to determine today relates to a passport application; is that the case?”
The father said that was correct, but the mother did not reply. Rather, she only raised the change of venue application with his Honour towards the end of the hearing after she had explained to him her reasons for opposing the father’s application to take the children for an overseas holiday, and after the father had responded to what she had said in that regard.
The following exchange then occurred between his Honour and the mother, in the course of which she raised her application that the proceedings should be transferred to Cairns:
HIS HONOUR: Thank you. So pleased be seated. Was there anything else that you wish to say, Ms [Lorreck], in the light of what you heard from
Mr [Watts], namely that it would be for two weeks, that there would be an itinerary – anything else?MS [LORRECK]: No, I disagree. I disagree. I do not ---
HIS HONOUR: No, no. I understand that, but was there anything else that you wish to say?
MS [LORRECK]: Your Honour, I live in Cairns.
HIS HONOUR: No no, I am acutely aware of that because I made the orders in relation to the transport costs following the other appeal.
MS [LORRECK]: Yes. That’s correct, hour Honour.
HIS HONOUR: So anything else, other than what you’ve already said?
MS [LORRECK]: I just think the jurisdiction needs to be changed to Cairns immediately. I do not have representation in Canberra. It’s becoming very stressful, having to deal with this issue so far away. I have attempted to put all my reasons in an affidavit as to why I believe the children should not be permitted ---
HIS HONOUR: No, no, I understand, and that has been filed.
MS [LORRECK]: --- and I do wish ---
HIS HONOUR: And that’s here before me. I understand.
MS [LORRECK]: ---orders to be made, your Honour.
HIS HONOUR: Sorry?
MS [LORRECK]: I do wish orders to be made that the children not be allowed to travel outside of the country. I have had alerts with, as you know, the … there with the – DFAT with the Australian Passports Office since December 2011.
HIS HONOUR: I understand.
(Transcript, 10/12/2012, page 5 lines 42-46 and page 6 lines 1-32)
According to the transcript, his Honour then proceeded to deliver his judgment. In his published settled reasons, his Honour referred (at [9]) to a letter emailed by the mother to the court on 30 November 2012 in which she had “outlined … her proposed order to have the matter transferred to the Cairns Registry of the Court”. However, he made no further reference in his reasons to any application by the mother for a change of venue. It is also to be noted that his Honour’s orders in their sealed engrossed form do not deal with the application for a change of venue.
It is somewhat unfortunate, in my view, that the mother’s application for a change of venue was not listed for hearing before the father’s application relating to international travel for the children was listed for hearing (provided that the listing procedures of the Federal Magistrates Court could have permitted that to be done).
It is also unfortunate that his Honour did not deal with the change of venue application on 10 December 2012 before he dealt with the father’s substantive application, and indeed, that he did not deal with it at all. However, as earlier explained, the mother did not draw to his Honour’s attention that application until the end of the hearing, although, as I have said, it is unfortunate that his Honour did not then deal with the application, even at that stage.
As I understood the mother’s position, the advantage for her of having the matter heard in Cairns would be that she may have been able to obtain Legal Aid there for legal representation. However, that consideration of itself may not have resulted in the change of venue application being determined in her favour.
Although this ground of appeal is a source of some concern to me, I am not persuaded for reasons which will emerge when I discuss the final ground of appeal that I should uphold this ground, and thereby allow the appeal.
Finally, I mention in connection with this ground that the mother had sought in her response that if the matter could not be transferred to Cairns, she would want the children represented by the independent children’s lawyer who had previously appeared for them. However, this was not a matter which the mother raised before his Honour, nor did his Honour deal with that application in his reasons or orders. It is not a matter expressly covered in the mother’s grounds of appeal, although she did raise it at the hearing of the appeal. It is not a matter which would cause me to interfere with his Honour’s orders, even if it had been a ground of appeal, principally for the reason that I am not persuaded that this is a case in which an independent children’s lawyer was required.
The assertion that the Federal Magistrate “was in error and wrongly exercised his discretion” (Ground 4)
In her summary of argument the mother listed in support of this ground the following five matters:
a)It is submitted that His Honour failed to acknowledge and refer to anything outlined in the Appellant’s response and Affidavit during the Hearing on 10 December 2012, therefore the Appellant was not provided with procedural fairness.
b)Federal Magistrate Neville [sic] decision was made without reference to any evidence – (Exhibits from the Australian Passports Office).
c)Federal Magistrate Neville failed to acknowledge the Appellant’s request for a change in Jurisdiction.
d)It is submitted that his Honour did not provide adequate reasons. His Honour sent out ‘Revised Reasons’ three months later dated
13 March 2013. These Reasons were sent out after the Appellant had lodged a Notice of Appeal with the Eastern Appeals Registry in Sydney.e)It is further submitted that His Honour failed to acknowledge the Appellant Mother’s position in not agreeing with the children predominantly flying to Vietnam due to Vietnam not being signatory [sic] to the Hague Convention on International Child Abduction.
It is unnecessary to refer to the first four of these submissions as their substance has been covered in the three grounds of appeal already discussed. I would, however, observe in relation to the second submission, being that his Honour made his decisions “without reference to any evidence”, that in his settled reasons for judgment his Honour (albeit briefly) summarised (particularly at [14], [15] and [16]) the mother’s affidavit evidence and also her oral submissions to him on 10 December 2012. His Honour had also summarised the father’s evidence. There can thus be no substance in the complaint that his Honour made his decision without regard to the evidence.
The fifth submission made by the mother requires careful consideration. There is substance in this submission that his Honour did not, in his reasons, acknowledge that the mother’s concerns about the children going to Vietnam were based (at least in part) on the fact that Vietnam is not a signatory to the Hague Convention of the Civil Aspects of International Child Abduction (“The Hague Convention on Child Abduction”).
The mother certainly raised this concern in [13] of her affidavit, and she also raised it in her oral submissions to his Honour on 10 December 2012. However, as I have said, it is not a matter referred to in his Honour’s settled reasons for judgment.
Given that the mother had placed reliance on the fact that Vietnam was not a member of the Hague Convention on Child Abduction, it might well be expected that his Honour would have referred to that matter and at least balanced it against the considerations which favoured permitting the children to travel to that country.
Again, however, I would not be prepared to interfere with his Honour’s decision on account of this matter, and this is for the following reasons.
First, as I have earlier explained at [16], his Honour found that because of the father’s position with the Australian Armed forces it was “unlikely in the extreme” that the father posed “any genuine or realistic risk of keeping the children overseas for an extended period”.
Having made that finding it can perhaps be understood why his Honour did not proceed to concern himself with how the children might be recovered from Vietnam if the father failed to return them to Australia.
It is relevant in this regard to record that before me the father explained that the sensitive nature of his work requires that he be given permission to travel abroad, including to Vietnam, and that his superiors would not give such permission if he was considered “a flight risk”. The father also explained that his new wife migrated to Australia from Vietnam in 2001 and is now an Australian citizen and has an “executive level” position in the Australian Public Service.
It is then necessary to explain that when I gave the mother the opportunity at the hearing of the appeal to explain to me her objections to the children travelling to Vietnam, it emerged fairly clearly that she was not particularly concerned about the first trip which the father proposes to make, as I understand it, at the end of this year. Rather, it is that she is concerned about the rather open-ended order which his Honour made, being that the children “be allowed to travel internationally” and as to what the father might do once he does retire from the Armed Forces. However, as I explained to the mother, the orders also provide some protection for her in that the father is required to give her 14 days notice of any proposed trip including flight details and an itinerary. If the mother has concerns about any future trip, she would have some opportunity to seek court assistance.
It is also important to record that the mother also indicated during the hearing of the appeal that she agreed that international travel is, as a general rule, in the best interests of the children, and that she would like at some time to be able to take the children to Italy which is the country of origin of her family.
Conclusion
Although it would have been more satisfactory had his Honour dealt with the mother’s application for a change of venue and had he also been seen to take into account the mother’s concerns that Vietnam is not a signatory to the Hague Convention on Child Abduction, I am not persuaded that any appellate interference with his Honour’s orders is warranted.
His Honour’s finding that the father is extremely unlikely to be “a flight risk” was well open to him and indeed buttressed by what the father told me at the hearing of the appeal about his work.
Furthermore, the father’s immediate interest is to be able to take the children on a trip to Vietnam in the near future, while the mother’s concerns appear not to be directed to that trip. Rather, as I earlier explained, her concerns appear to be about the long term future. However, as I have also explained, his Honour’s orders provide her with protection in the form of notice and details of future trips.
Accordingly, I propose to dismiss the mother’s appeal.
Costs of the appeal
In the event that the appeal was to be dismissed, the father did not seek an order for costs against the mother, and accordingly there will be no order for costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Finn delivered on 26 August 2013.
Associate:
Date: 26 August 2013.
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