Watts and Lorreck

[2012] FMCAfam 1499

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WATTS & LORRECK [2012] FMCAfam 1499

FAMILY LAW – Parenting – remitted matter following appeal – single issue of children travelling overseas – alleged risk of Father remaining overseas with children.

Family Law Act 1975, s.60CA

Lorreck & Watts [2012] FamCAFC 75

Applicant: MR WATTS

Respondent: MS LORRECK

File Number: CAC 23 of 2009

Judgment of: Neville FM

Hearing date: 10 December 2012

Date of Last Submission: 10 December 2012

Delivered at: Canberra

Delivered on: 10 December 2012

REPRESENTATION

Counsel for the Applicant: Self Represented

Solicitors for the Applicant: N/A

Counsel for the Respondent: Self-Represented by telephone

Solicitors for the Respondent: N/A

ORDERS

1. The Father’s Application to travel overseas with the two children ([X] and [Y]) is granted on the basis that the Father provide the Mother with (a) an itinerary, (b) flight information and (c) contact details where the children may be reached whilst overseas, no later than 7 days before the trip is scheduled to commence. 

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAC 23 of 2009

MR WATTS

Applicant

And

MS LORRECK

Respondent

REASONS FOR JUDGMENT

1. The following reasons have been revised from those delivered on 10 December 2012 in the course of the duty list that day in relation to Orders made (a) passports for the 2 children of the relationship (10 year old [X] and 5 year old [Y]) and (b) the children to travel with their Father for a brief overseas holiday.

2. The parties are litigants of long-standing.  The Full Court decision in relation to parenting and relocation delivered on 7 June 2012 gives more than sufficient background in relation to parenting matters of the couple.[1]  Subject to the brief comment and observations noted below, I need not recount anything further by way of background.  The parties are now both self-represented litigants.

   [1] See [2012] FamCAFC 75.

3. By Application filed on 29 October 2012, the Father sought Orders to enable the 2 children to travel with him overseas for a short holiday and in this regard to have passports issued in their names.  The Mother opposes both aspects of the Application.

4. The affidavit of the Father (which was also filed 29 October 2012) confirms that he [occupation omitted].

5. In his first affidavit he recounts (supported by copies of email correspondence with the Mother) his unsuccessful attempts in 2011 and 2012 to secure agreement from the Mother regarding passports for the children.

6. Although nothing particularly turns on it – perhaps – I confess that much of the Mother’s comments to the Father in relation to his Vietnamese partner is patronising and rude (if not racist and or xenophobic).  In one place (email dated 5 January 2012; annexure D to the Father’s affidavit of 29^th October 2012), the Mother said: “[referring to the Father’s partner] I think she is very gullable [sic] and naieve [sic] and is easily brainwashed and persuaded by you.  Hence why you have chosen someone from an Asian background….”

7. Mr Watts has re-partnered; his new partner is Vietnamese. He confirmed that he shares property and assets with [name omitted] (his partner).  The Father filed a further affidavit on 27 November 2012 in which he set out (and attached details of) the Mother’s strong objection to the travel proposed.

8. Mr Watts confirms that his intention is to take the boys for a short holiday to Vietnam (of approximately 2 weeks) and that his object in doing so is to enrich his and the children’s cultural understanding of their Stepmother’s original homeland.

9. By undated letter received by the Court via email (the email is dated 30 November 2012) the Mother outlined (a) her lack of legal aid funding, (b) her intention to seek such funding in Queensland, (c) her proposed order to have the matter transferred to the Cairns Registry of the Court and (d) to seek sole parental responsibility for the children.

10. This last order is somewhat curious because his Honour Federal Magistrate Brewster made such an Order on 2 September 2011.  That Order was not the subject of appeal to the Full Court.

11. The Mother also confirmed that she had placed the children on the Airport Watch List on 5 December 2012.

12. Leave was granted for the Mother to attend the matter by telephone on 10 December 2012.

13. The transcript of that date confirms that the Court had before it the Mother’s Response and affidavit.  Curiously, those documents bear a “received” stamp dated 14 December 2012.

14. The Mother’s affidavit details her concern about the children being left in the care of the Father’s partner, and also her difficulties in securing legal aid and legal representation. Attached to her affidavit are correspondence with the Department of Foreign Affairs and Trade, her “child alert request”, and Orders made by Federal Magistrate Brewster dated 2 September 2011, among other things.

15. In the course of the hearing on 10 December 2012 I pointed out to the Mother that I considered the issue before the Court to be a very discrete matter.  She commented that the main reason for her opposition to the travel overseas by the children was that she did not trust the Father nor did she trust his partner.  She stated that they could just stay for an extended period.  

16. Of quite some moment, in my view, was the Mother’s confirmation in the course of her comments that (a) the Father had re-signed with [employer omitted] for another 3 years and (b) he had confirmed that he intended to remain in Canberra. I take these matters, as acknowledged by the Mother, to be significant. In my view, I take them to indicate that her concern is less about any possible ‘flight risk’ of the Father and the boys, but rather that her antipathy towards the Father (and his partner) remains unabated.  It is this antipathy that appears, to a very significant degree, to be driving the on-going contest between the parents. Such warring parents can only be injurious to their children.

17. I remind myself that the Court’s responsibility in parenting matters – even in situations where the order(s) sought is extremely narrow – must be to ensure that any orders made are properly considered to be in the best interests of the child or children.[2]

    [2] See s.60CA Family Law Act1975 (Cth).

18. Later in the Mother’s comments/submissions to the Court she expressed concern about the Father and his partner marrying in Vietnam and how, thereafter, he could apply for residency.

19. In response the Father confirmed that he is a [occupation omitted], and that following any holiday with the children he would be returning to Australia. He confirmed that the length of the holiday would be “probably no more than 2 weeks.”

20. Particularly on the basis that the Father is a [occupation omitted], which fact is acknowledged by the Mother of the children, in my view 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.  

21. On the basis that the Father ensures that he provides the Mother with an itinerary, flight and contact details whilst overseas, I grant the Father’s Application.  In my view, such a holiday with their Father and Stepmother is in the best interests of the children.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Neville FM

Date:  13.03.2013