Rummler and Cottrell - [2010] FamCAFC 17

FAMILY COURT OF AUSTRALIA

RUMMLER & COTTRELL

[2010] FamCAFC 17

FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – Mother appealed refusal to grant a passport for specified period of travel to the US – Period for travel has passed – Utility in appeal considered – Federal Magistrate’s approach to the issue of risk of retention of the child in the US included conclusions unsupported by evidence and failed to consider all relevant factors – Appeal allowed – Order dismissing the mother’s application for a passport set aside – Orders restraining the removal of the child from Australia remain in force

Family Law Act 1975 (Cth) s 111B(4)
Family Law (Child Abduction Convention) Regulations 1986
Hague Convention on the Civil Aspects of International Child Abduction

APPELLANT:

Ms Rummler

RESPONDENT:

Mr Cottrell

APPEAL NUMBER:

2009

FILE NUMBER:

DGC

4281

2008

DATE DELIVERED:

17 February 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Warnick J

HEARING DATE:

9 February 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

3 April 2009

LOWER COURT MNC:

[2009] FMCAfam 466

REPRESENTATION

APPELLANT:

Appeared in person

COUNSEL FOR THE RESPONDENT:

Mr Weerappah

SOLICITOR FOR THE RESPONDENT:

Bayside Solicitors

Orders

That the appeal be allowed.
That order 1 of the orders of Federal Magistrate O’Dwyer made 3 April 2009 be set aside.

IT IS NOTED that publication of this judgment under the pseudonym Rummler & Cottrell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 39 of 2009
File Number: DGC 4281 of 2008

Ms Rummler

Appellant

And

Mr Cottrell

Respondent

REASONS FOR JUDGMENT

On 3 April 2009, for reasons he gave extempore, Federal Magistrate O’Dwyer dismissed an application by Ms Rummler against Mr Cottrell, for:
The Family Court to approve a child’s passport for [the child, N] so he can travel with me to the USA in 2009.
These reasons relate to the mother’s appeal against that dismissal and against two other orders made that day, one restraining each party from removing, causing or allowing the child to be removed from Australia and the other, that the Australian Federal Police place the name of the child on the airport watch list.
Given that the application related to a planned trip in 2009, questions about the utility of the appeal immediately arise. The orders sought by the mother on appeal are for the revocation of the orders appealed, approval of the application for a child’s passport and the removal of the child from the airport watch list. It seems unlikely that such orders would be made by an appeal court or, for that matter, a court at first instance, in the absence of a specific proposal for travel and of the detail of arrangements that might be made towards ensuring the child’s return. Even then, the father would be entitled to be heard, so that the likely position is that, whether the appeal grounds have merit or not, for the mother to be able to lawfully take the child overseas, a further hearing will be necessary.
When I raised these aspects with the mother, she indicated that she had no present plans to take the child overseas and that she had approached the father about withdrawing the appeal, provided the father did not pursue costs. I sought no further details in relation to that, and disregard the information for present purposes. It may be a matter to be explored on any question of costs.
The mother, who does not have the assistance of a legal representative, has drawn her own Notice of Appeal. There are no grounds as that term is generally understood. There is a document of four and a half pages in length, which contains a mix of complaints and assertions. Some of them relate to matters not the subject of findings in the reasons for judgment.
However, in her Summary of Argument, the mother summarised her complaints as follows:
(1)ICL [at hearing before O’Dwyer FM the child was separately represented] failed to act impartially and failed to provide all relevant documents to the court.
(2)Procedural unfairness.
(3)Judge biased towards single mothers including a woman’s role as a mother.
(4)Error made in relation to the visa requirements to enter or stay in the US.
(5)Failure to consider s 60CC of the Family Law Act 1975.
(6)Errors in the reasons for judgment.
I do not intend to deal at length with all of the mother’s complaints, though I have considered them all. For instance, some of the mother’s arguments about the conduct of the Independent Children’s Lawyer (the ICL) arise from perceptions that the ICL spent time talking to the father and his advisers, but avoided her. I am unable to assess such complaints.
Many of the mother’s submissions show a failure to appreciate that, while the order she sought was a parenting order, and therefore to be made only if in the best interests of the child, the enquiry did not need to be as broadly cast as might be expected as in, say, one in relation to substantially different proposals for periodic contact between a parent and child.
However, her view as to what to raise on appeal may have been informed by the matters which seem to have been explored at trial, and, more significantly, commented upon in the Federal Magistrate’s reasons for judgment.
The mother directs no submissions in her summary specifically to the last two categories of complaint. In any event, I think the most efficacious approach not to attempt to use the complaints of the mother to order the discussion, but to discuss particular arguments, moving sequentially through the Federal Magistrate’s reasons for judgment.
However, before turning to the reasons, I address a complaint by the mother about bias or procedural unfairness arising from the Federal Magistrate’s expression of a view as to the result, at the outset of the hearing. O’Dwyer FM said:
HIS HONOUR: …I now have the benefit of the involvement of an independent children’s lawyer. What I might do at the outset is just invite her to give a preliminary indication, if she’s in a position to do so, as to what the independent children’s lawyer’s position is in relation to this. …
…
HIS HONOUR: I’ve invited you to give a sort of preliminary view, but I have to perhaps give my own preliminary view on this.
…
HIS HONOUR: [Ms Rummler], you must appreciate that it is a preliminary view but it’s open to persuasion. After reading all of the material, I am not inclined to let the child go. I’m not impressed by the nature of your application, and on the balance of all the risks against the benefits to be gained, the risks outweigh the benefits to be gained for this child, and that’s just added another component to it – that I’ve just heard about, which I wasn’t aware of until just then.
In a matter in which the evidence in chief of parties was put on affidavit, I do not consider that the expression by a judge of a preliminary view, in terms such as those used by his Honour, indicates prejudgment.
In his reasons for judgment, the learned Magistrate recorded:
·that the mother had two older boys by another father;
·that the child to whom the application related was then nine years of age;
·that orders for the father to spend specified times with the child had been made on 23 January 2007;
·the mother had formed a relationship with Mr P, an American citizen, residing in the USA;
·Mr P had travelled to Australia on two occasions and he had financed the mother’s travel to America on another two occasions;
·the first occasion of travel by the mother to the USA was for a period of nine weeks in 2006 and another trip for three months in 2007. On each of those occasions N was cared for by his father and the father’s mother.
The learned Magistrate said:
9.The circumstances surrounding the last trip are very disturbing, in my view. The mother, having planned a trip to America with [Mr P], in 2007, between May and August, did not inform significant adults who would be burdened with the care of looking after the children, nor the children themselves, of the fact that she was going on that trip. She just left without informing them, and it does not take much imagination to realise that such a significant step, and for such a significant period of time, would have to have a very detrimental effect on the emotional wellbeing of the children.
10.The mother no doubt, I am satisfied, found her needs for what she describes as an opportunity to travel far outweighed any needs of the children. She tells us today that should she not be allowed to take [N], as she seeks to do, to America she still intends to go to America because, again, she wishes to avail herself of the opportunity to travel, notwithstanding any problems that might cause for [N].
11.The further background to this is that she has encouraged in [N], as I understand her evidence, an expectation that he will be able to travel to America. Based upon the fact that the two older boys had gone, a perception has been engendered in [N] that he has missed out and it is proper for him to also have the benefit of the trip that the older boys had experienced earlier. The proposed trip is for a period of approximately two months.
12.…She [the mother] … asks me to conclude the relationship between them [her and Mr P] is more or less a platonic one.
13.I do not accept that. I accept that there is the potential for that relationship to advance even further, with the mother in America, and she could feel free to marry him there. …
The mother complains that O’Dwyer FM was critical of her parenting, but made no criticism of the father. That assertion is not quite correct. Earlier in his reasons, his Honour said:
2.The background is that the mother, who says, and I am persuaded, had a very difficult relationship with the father over a number of years. At one stage that relationship saw the father imprisoned for a period of 12 months for domestic violence against her.
3.Domestic violence is obviously a very serious and significant aspect about the relationship and is one that I need to take into account under section 60CC when I am dealing with the issue of what is in the best interest of the child.
The mother’s complaint about the Federal Magistrate’s conclusions about her parenting (and, as she saw it, the absence of criticism of the father’s parenting) expands into one that there was much more that could have been the subject of findings and which would have resulted in a more balanced assessment of her capacity and perhaps that of the father. She seeks to refer to matters that were not in evidence before O’Dwyer FM, but makes no application that I receive further evidence.
However, returning to O’Dwyer FM’s reasons, the Federal Magistrate revisited the criticism of the mother that he made in the paragraphs just quoted, in the third last and second last paragraphs of his reasons:
24.There is another matter of grave concern to me in relation to the mother’s conduct. That is, her encouragement and the building of an expectation that [N] is entitled, in effect, to a trip to America because his older brothers went. Compounding that, of course, is the fact that the mother, knowing full well that the father resisted such a trip and resisted the request by the mother to sign the consent for the issue of a passport, gave to [N] the task of ensuring that consent be provided. [N], then an eight-year-old boy, was required to negotiate the issue with his father.
25.The end consequence of that, of course, is that it places the child in an extremely invidious position; that it engenders in the child the potential for a chasm to develop between him and his father arising out of the child's perception of the father as unreasonably refusing him an opportunity to travel, which has been built up in the child's mind by the mother as being something wonderful and worth pursuing.
Just what significance those views had to the refusal of the mother’s application is not apparent. Also, the Federal Magistrate did not revisit the issue of the father’s behaviour, in reasoning to his conclusion. However, by that stage, (the last few paragraphs) as will be later seen, O’Dwyer FM had already reached and explained the result.
Because of that, I am inclined to the view that the criticisms of the mother did not form part of the basis of the result. Nonetheless, the inclusion – and repetition – of such findings, gives rise to the possibility that the court placed reliance upon them and certainly gives rise to arguments on appeal, such as the mother raises.
I do not say that such findings about parenting capacity could not properly be linked to the question of whether the child should travel overseas, but unless the link is explained, the criticisms may appear to be gratuitous.
However, I repeat that in the context of this judgment, I do not regard the presence of such criticisms as amounting to appellable error.
O’Dwyer FM next turned to the risk of the mother not returning the child if he was taken to the USA. He said:
13.…she could feel free to marry him there. The consequence of that possibility is that if the child was with the mother in America, she would have the child there and need not return.
14.In the prior hearing of this matter she indicated that one reason she would need to return to Australia is that her stay in America would be curtailed and limited because of immigration requirements imposed by America. She talked about the fact that she could go to America without a visa, under a scheme that allowed her into America for a limited period of 90 days. Incidentally, I understand that the no visa arrangement is no longer operative; but, be that as it may, she could get a limited stay visa in any event. Her argument is that at the expiration of that visa period she would have to return to Australia.
15.Of course, the situation could change. If in America she marries an American citizen, then her immigration status there would be dramatically changed. It would entitle her, subject to satisfactory character assessments, to remain there with her new husband.
16.That is a real risk in this proceeding and if that were to happen, [N]'s best interests would not be served because he would be denied contact with his father and his father's family. (emphasis added)
Mr Weerappah, for the father, concedes that there was no evidence before the Federal Magistrate about foreigners obtaining rights of any description, to remain in the USA. Even if this was a matter upon which the learned Magistrate could inform himself – which it was not – he has not indicated any source for the conclusion. Thus, in my view, the finding highlighted is one of suspect foundation. Moreover, it is directed to the situation of the mother, not that of the child. This, in my view, is a significant absence, exacerbated by the lack of any discussion of the potential use if the child were retained, of the Family Law (Child Abduction Convention) Regulations 1986.
The USA is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. s 111B(4) of the Family Law Act 1975 (Cth), in relevant parts, provides:
(4) For the purposes of the Convention:
(a) each of the parents of a child should be regarded as having rights of custody in respect of the child unless the parent has no parental responsibility for the child because of any order of a court for the time being in force; and
(b) subject to any order of a court for the time being in force, a person:
(i) with whom a child is to live under a parenting order; or
(ii) who has parental responsibility for a child under a parenting order;
should be regarded as having rights of custody in respect of the child; and
(c) subject to any order of a court for the time being in force, a person who has parental responsibility for a child because of the operation of this Act or another Australian law and is responsible for the day‑to‑day or long‑term care, welfare and development of the child should be regarded as having rights of custody in respect of the child; and
(d) …
The parenting orders of 23 January 2007 provided for the parents to have equal shared parental responsibility. O’Dwyer FM did not consider where that order placed the father in relation to “rights of custody” as that term is defined in the Convention nor did he consider any amendment to the orders, to give the father rights of custody, if he did not already possess them, for at least a period covering the planned visit of the child to the USA.
However, his Honour was not assisted by either party with any submissions about the question of the Convention. Nonetheless, in my view, at least the relevant provisions of the Family Law Act, and the existence of the Convention should have been addressed in any assessment of risk.
In any event, because the findings about risk were made on an unidentified basis and were directed to the position of the mother, and only indirectly, the child, in my view, the learned Magistrate’s consideration of the risk of retention of the child in America was flawed.
O’Dwyer FM then assessed the significance for the child, if the risk came to fruition. He said:
17.I am satisfied that on the material presented, both by the father's mother and also by the applicant herself that there is a meaningful relationship between both the father and the child, and the child and the paternal grandmother. These are significant relationships, working for the best interests of the child, and they should not be put at risk.
He then addressed evidence of the mother that she needed to return to Australia to complete studies and he commented upon an argument put by the ICL about the effect on the child of absence from school. He continued:
20.…I am satisfied that the effect on his schooling itself, if that were the only consideration, would not be a great impost on a child of nine years of age, and there could be some benefit, in broad terms, of him travelling. But there are other complicating factors.
21.It appears that [N] has very serious behavioural problems and he is a disturbed child, for want of a better description. That manifests itself in difficult relationships at school, both with classmates and teachers. He has had the benefit, and may continue to get benefit, of psychological assistance. There is a concern by the Independent Children's Lawyer, a concern which I share, that the separation for such a lengthy period of time from that available assistance might have a negative effect on him, and also the disruption to routine in relation to school, routine in relation to attendance, time spent with his father and grandmother, might have severe consequences for his psychological wellbeing.
It seems undisputed that the observations of O’Dwyer FM made in the first two sentences of the last paragraph set out, were based on material from the child’s school subpoenaed by the ICL.
The mother says that she was not given a proper opportunity to inspect the subpoenaed documents before hearing and that other material that could have been subpoenaed would have counteracted some content of the material produced. I cannot deal with these aspects of the mother’s complaints.
However, the material produced did only come to the mother’s attention at hearing. But she did not seek an adjournment and though, arguably, she might have been advised of the possibility of one, she does not specifically raise such a complaint. I am not satisfied that the approach taken by O’Dwyer FM constituted error.

The Federal Magistrate then moved to his concluding paragraphs, commencing:
22.On the balance of risks involved, I say that the benefit to be gained by [N] for this travel is not one that outweighs any perceived risks involved. On balance, I think the risks involved in regard to all of the history of this matter is that there is a real possibility of the mother not returning to Australia; she has nothing to keep her here, apart from, as she has indicated, her older children. It may be possible to move them, but they are now getting quite old. I am not confident the mother does not take the view that they are old enough, and she has her own life to pursue separate from theirs. The other aspect of it is her studies, which are not so significant to give comfort to me that her need to complete them outweighs a prospect of a permanent relationship with [Mr P] in America.
23.She is not in a position to provide a security deposit and even if she was, I still would not be satisfied that a security deposit would be enough to ensure her return. She does not own any real property.
There then followed the two paragraphs earlier seen, being those critical of the mother’s parenting, in particular about her involving the child in the travel issue, and the final paragraph was :
26.A child of nine years of age may have something to gain from travel if it is done in circumstances where there are no other risks, but the benefit to this child of travelling, having regard to all of the history, does not in any way outweigh the perceived risks, as I see them, of allowing the child to travel. Accordingly, I intend to dismiss the mother's application and I intend to make an airport watch order as well.

Conclusion and consequential orders

As I have found merit in one of the mother’s arguments, the appeal should succeed. However, in light of what I recorded at the outset of these reasons, I am not prepared to discharge the orders restraining each parent from removing the child from Australia and placing the child’s name on the airport watch list. They are “general” orders, supported by the mere disagreement of the parents about the child going overseas.
However, as I have found that the learned Magistrate’s reasons contain a significant conclusion against the mother’s case, unsupported by evidence and made in the absence of consideration of all relevant factors, I will set aside the dismissal of the mother’s application. The consequence will be that that application revives. Whether the mother withdraws, amends, or pursues it is a matter for her.

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick

Associate:

Date: 17 February 2010