WATTS & LORRECK (No.3)

[2015] FCCA 1653

FEDERAL CIRCUIT COURT OF AUSTRALIA

WATTS & LORRECK (No.3) [2015] FCCA 1653

Catchwords:
FAMILY LAW – Application by Father to take children on overseas vacation – similar application made some years ago – the earlier application was opposed by the Mother who appealed the decision – appeal unsuccessful – latest travel application also opposed by the Mother – Mother’s application for recusal of trial judge based on earlier decision – case management decisions regarding the hearing of repeated travel applications travel – application granted – recusal application dismissed – on-going contest between parents – original travel orders of 2012 sufficient for on-going travel – original orders confirmed.

Legislation:

Family Law Act 1975, ss.60CA, 60CC(3)(c), (d), (e)

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Expense Reduction Analysts Group  Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303
Isbester v Knox City Council [2015] HCA 20 (10 June 2015)
Jameel (Yousef) vDow Jones & Co Inc [2005] QB 946
Lorreck & Watts [2012] FamCAFC 75
Lorreck & Watts (No.2) [2013] FamCAFC 128
Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427
Smith Kline & French Laboratories Ltd v Bloch [1983] 1 WLR 730
Watts & Lorreck [2012] FMCAfam 1499

Applicant: MR WATTS

Respondent: MS LORRECK

File Number: CAC 23 of 2009

Judgment of: Judge Neville

Hearing date: 5 May 2015

Date of Last Submission: 5 May 2015

Delivered at: Canberra

Delivered on: 19 June 2015

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant: Self represented

Counsel for the Respondent:

Solicitors for the Respondent: Self represented

ORDERS

1. The Application in a Case, filed by the Mother on 17^th March 2015, be dismissed.

2. To the degree necessary, the Orders made by this Court on 10^th 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:

   (i)Approval to obtain 17 extra days (between 1^st September 2015 and 17^th September 2015) with the children X and Y, in addition to the allocated Spring Holiday in 2015 (commencing on 18^th September 2015 and ending on 5^th October 2015).

   (ii)Approval to take the children X and Y for a holiday in (country omitted) in September 2015 for a period of approximately 3 to 4 weeks.

IT IS NOTED that publication of this judgment under the pseudonym Watts & Lorreck (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 23 of 2009

MR WATTS

Applicant

And

MS LORRECK

Respondent

REASONS FOR JUDGMENT

Introduction

1. In a very different jurisprudential context (a stay application in a large transnational contract dispute), Lord Denning said:[1]

   [1] Smith Kline & French Laboratories Ltd v Bloch [1983] 1 WLR 730 at 733.

   As a moth is drawn to the light, so is a litigant drawn to the United States.

2. In a similar manner, the parties in this never-ending matter are drawn to (or in other respects forced to) this Court.

3. This is a contest over an overseas holiday.  One might usually (or reasonably) assume that an overseas holiday would not (or should not) occupy a court and/or require the expenditure of significant public resources in resolving a private dispute in relation to a holiday.  Contests of this kind make judges despair and ask questions like “why is there (or must there be) a fight over an overseas holiday?”, and “why are court resources being spent on disputes of this kind?”  Having said that, courts are required to quell controversies, however petty, difficult or otherwise they might be, and even if the contest arises solely from unabated hostility between the parents and their inability and or simple unwillingness to be sensible or reasonable.

4. A similar contest was played out in 2012, with the Court permitting the children (X and Y), against the Mother’s wishes, to travel overseas with their Father, his Wife and their siblings.  The Mother challenged that decision – unsuccessfully.

5. In earlier proceedings, the Full Court permitted the Mother to relocate to (omitted) Queensland.[2]  The Father is a (occupation omitted) of the (employer omitted).  As a statement of fact, among other things, the Father asserted that the relocation by the Mother and the children has made his time (and necessarily that of the children’s siblings) with them much more problematic.  Given the litigious history of the matter since the Mother’s relocation, it is difficult to see how, if at all, it has lessened or minimised the contest and conflict between the parties.

   [2] Lorreck & Watts [2012] FamCAFC 75.

6. While the orders of the Full Court provided for the children (X (aged just on 13 years) and Y (aged just on 8 years) (in these reasons, these children will be referred to as “the boys”) to spend time with their Father, for example, during school holidays (Order 4(a)), the orders did not provide any relevant mechanism by which the Father may spend that holiday time with the boys overseas.  Accordingly, each time that he seeks to spend time with the boys in accordance with the Full Court’s orders, and which involves an overseas trip, and the Mother does not agree to such an overseas vacation, the Father is required thereby to make application to the Court.  As I have mentioned earlier in these reasons, I have previously made orders permitting the boys to travel overseas with the Father.[3]  That previous decision was appealed; the Full Court of the Family Court (Finn J sitting alone) dismissed that appeal.[4]

   [3] See Watts & Lorreck [2012] FMCAfam 1499.

   [4] Lorreck & Watts (No.2) [2013] FamCAFC 128.

7. On 22^nd December 2014, the Father filed an Initiating Application in this Court by which he sought orders permitting him to take the boys (together with his younger children – A and B - with his current Wife) for an overseas (country omitted) holiday in September 2015.  This was after having sought the Mother’s consent to this holiday as long ago as 2^nd October 2014, which she vehemently refused in a number of emails sent to the Father (which are annexed to his primary affidavit filed 22^nd December 2014).  She formalised her opposition to the travel orders in her Response (and supporting affidavit), filed 17^th March 2015.  On 5^th May, the Mother filed a further affidavit in reply to the Father’s material.

8. I might note here that notwithstanding the Mother’s opposition to the children travelling overseas with the Father at the time he proposes (she does not oppose such travel in the Christmas school holidays), she says in her email correspondence with the Father (which is attached to his primary affidavit) that she will take the children overseas, but in other correspondence, she also says that she cannot afford to provide such holidays.

9. The previous decision of this Court in 2012 permitting the Father to travel overseas has now given rise, in the Mother’s eyes, to an apprehension of bias.  This is set out in her Application in a Case filed 17^th March 2015 (together with an affidavit filed on the same date) whereby she seeks that I recuse myself from determining the Father’s December 2014 Application regarding overseas travel.

10. On the Court’s own motion, I sought brief written submissions from the parties in relation to the possible amendment of the 2012 orders that would enable either parent to travel overseas (with certain information being provided to the other party in a timely manner beforehand), without the need for an application to the Court.

11. This course was suggested not only in the hope (however vain) to save the parties the time and expense of having to make such applications, but also to save or to minimise the never-ending strains on the Court’s always scarce [public] resources.  Such considerations are not unimportant, as the High Court has recognised on a number of occasions, admittedly in interlocutory proceedings.[5]  For example, in Aon v ANU, French CJ said, at [23]:

    … the adversarial system has been qualified by changing practices in the courts directed to the reduction of costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources.

    [5] See Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303.

12. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd, the High Court (French CJ, Kiefel, Bell, Gageler and Keane JJ) further said, at [51] (internal citations omitted):[6]

    In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia.  It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process.  Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings.  The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants.

    [6] For comparative comments with respect to case management principles, see the earlier discussion by the High Court in Expense Reduction Analysts at [36] – [42].

13. To the degree apposite, such considerations surely cannot be excluded from the Court’s diligent attention to the exercise of its discretion in family law matters.  While paying proper attention to the relevant facts, and such principles from legislation and case law that are also applicable to the case at hand, in my view the Court must also have due regard to the High Court’s comments in relation to “the proper and efficient use of public resources.”  This must especially be so in applications which ultimately involve the exercise of the Court’s discretion (as opposed to, for example, the construction of a contract or the interpretation of a statute, whether it be in migration, intellectual property, fair work and employment and the like, all of which involve statutes of significant complexity with a significant body of case law) where (a) there is no question of law involved (a quite rare occurrence in family law matters in any event), and (b) which ventilate the same issue(s) on multiple occasions.

14. For the reasons which follow, (a) the Mother’s recusal Application must be dismissed; and (b) in my view, it is in the children’s best interests that they [again] be permitted to travel overseas with their Father (and no less significantly, with other members of their paternal family including their siblings) as sought in the Father’s Application.

15. In these reasons, I deal firstly with the Mother’s recusal Application, then with the travel Application.  Before doing so, I should also set out in full three emails sent by my Chambers to both parties, dated respectively 13^th February 2015, 17^th February 2015, and 26^th March 2015.  Unfortunately, such correspondence was necessary to try to bring some order (and respite) from the barrage of emails which the parties sent (and continue to send) to the Court (including directly to Chambers) in which they continue their never-ending war of attrition.  Despite regularly asking, and sometimes warning, the parties (unfortunately, it should be noted that these and similar remarks are directed primarily to the Mother) not to include extraneous complaints about the other parent, the flood of emails has continued regularly since the Father filed his Application last December.

16. The email sent from Chambers to the parties on 13^th February 2015, stated (emphasis in original):

    Dear Mr Watts and Ms Lorreck,

    
    
    

    I refer to the recent application filed in this matter on 22 December 2014, which is due to come before the Court for directions on 16 February 2015.

    
    
    

    I note that Ms Lorreck has requested phone leave for this hearing.

    
    
    

    Given the long history of this matter, the difficulty of conducting matters over the telephone, and the relatively small scope of the application, HH proposes dealing with the matter via written submissions.

    
    
    

    Each party will need to file and serve written submissions of no more than 7 pages detailing why or why not the orders set out in the Initiating Application filed 22 December 2014 should be made.

    
    
    

    The Applicant is required to provide his submissions within 14 days of the date of this email and the Respondent is required to provide her submissions within 14 days thereafter.

    
    
    

    If this course is taken, the directions hearing on Monday will be vacated and the matter will be decided on the basis of the submissions.

    
    
    

    Could you please confirm via email by close of business today that you have received this email and whether you agree to the proposed course.

17. The email to the parties sent on 17^th February stated (emphasis in original):

    Dear Parties,

    
    
    

    In relation to the proposal from Chambers that the matter proceed via written submissions, and in response to the numerous emails receive by Chambers from both parties over the last four days, the Court notes the following:

    
    
    

    1. In December 2014, the Court received an Application by the Father to enable him to travel overseas with the children later in the year. The return or first listing date for the matter was 16 February.

    
    
    

    2. By email on 13 February, the Court suggested to the parties that the matter be dealt with by way of written submissions, rather than by way of oral argument. This course is [usually] beneficial for a number of reasons, including (a) when parties are physically distant from the Court (such as here) and (b) usually it means that parties are more succinct in the presentation of their argument.

    
    
    

    3. The Mother agreed to the proposal of determining the matter by way of written submissions. The Father, it would seem, for various reasons, either did not receive the 13 February email, or at least in sufficient time, to enable him to give a proper response, and which also has led to him having a further range of questions. The difficulty in dealing with some of his questions is that that involves giving legal advice, which the Court cannot do. The Court can advise on procedural issues, but little else.

    
    
    

    4. Since the email of 13 February, the Court has received a very large number of emails from both of the parties. Much of the material should never have been sent to the Court because it involves the further and on-going contest between the parties. If there is a continuation of such emails, the parties risk adverse action by the Court, including that those considered not appropriate may ultimately be discarded/shredded.

    
    
    

    5. The object of the Court proposing to deal with the matter by way of written submissions was intended to assist the parties by not having to come to Court. Unfortunately, it now seems inevitable that the matter be re-listed and directions made for the future conduct of the Father's Application.

    
    
    

    6. The matter will now be listed for Friday 27 February at 9.15. It will be for directions only. The Mother will be able to attend by telephone.

    
    
    

    For future reference, please ensure that you copy the other party in to any correspondence with Chambers, and please limit your communications with Chambers to procedural matters only.

18. I should note that the matter was re-listed and dealt with on 27^th February, with the Father attending in person, and Ms Lorreck attending by telephone.  On that occasion orders were made which provided a time-table for the filing of a Response and affidavit by the Mother within 14 days, and for the filing of written submissions 14 days after the filing of the Response and affidavit.  In the event, the Mother’s material was filed outside of the time prescribed, which consequently led to the later filing of the submissions.

19. The email of 26^th March stated (again, this email, as with the earlier ones to which I have referred, was written and sent by my Associate; the attachments referred to in the email are not set out below, and the emphasis is as per the original):

    Dear Mr Watts and Ms Lorreck,

    
    
    

    I write in response to Mr Watts's email below and to the various emails Ms Lorreck has exchanged with the registry, the most recent of which is dated 24 March 2015.

    
    
    

    Mr Watts - I understand Ms Lorreck has now filed her Response documentation with the Court, and also a fresh application requesting that Judge Neville recuse himself from hearing the matter. You should be served with those documents shortly, if you have not received them already. The recusal application was initially given a hearing date of Tuesday 31 March 2015 at 10.00am. Ms Lorreck has been in correspondence with the Court registry and is seeking to attend that hearing by telephone, and I have attached a scanned copy of that correspondence for your reference. In relation to the filing deadlines for the travel application, please file your submissions 14 days after you have received Ms Lorreck's submissions.

    
    
    

    Ms Lorreck - If you have not done so already, it is important that you arrange for sealed copies of your documents to be served upon Mr Watts at the earliest possible time.

    
    
    

    Judge Neville does not hear contested matters, such as recusal applications, by telephone. The Court has a responsibility to ensure a fair hearing of the matter, and giving evidence and making oral submissions can be very difficult by telephone or video link. Further, due to the large workload and limited resources of the Court, there is limited time available for matters such as these. It was only due to the last minute cancellation of another hearing that we were able to accommodate the recusal application on 31 March.

    
    
    

    In the circumstances, and with reference to the various issues Ms Lorreck raises in her email correspondence (attached), the hearing on 31 March 2015 will be vacated. The matter will be dealt with on the papers and both parties must provide written submissions of no more than 2 pages, on the issue of whether it is appropriate for Judge Neville to hear the matter, within 14 days, i.e. by close of business on 10 April 2015.

    
    
    

    I reiterate the importance of copying the other party in to all email correspondence with the Court.

    
    
    

    The Orders in relation to the filing of submissions for the travel application remain in place.

    
    
    

    This email should be taken as a formal directive of the Court.

The Mother’s Recusal Application

1. The Mother’s Application in a Case, filed 17^th March 2015, sought the following order: “That Judge Neville be refused/excused from this matter and that the court appoint another Judge to hear the matter.”

2. Also on 17^th March, she filed an affidavit in support of this Application.  Written submissions were also provided, which were filed on 14^th April.  The submissions are stated to be “In the Full Court of the Family Court of Australia at Canberra.” 

3. As with many of the Mother’s documents, and in this instance too in relation to the Application in a Case, I simply note (with no other comment) that there are no relevant details, as required for forms filed with the Court, regarding filing, address for service, and other matters.

4. The Father filed only written submissions (but no Response to the Application in a Case regarding recusal) on 10^th April.

5. The Mother’s affidavit was in very brief terms.  It stated (in full, but without the annexures):

   1) I am currently unrepresented until further notice.

   2) That in previous matters, the Respondent was denied of [sic] procedural fairness.

   3) I have appealed two previous Orders made by his Honour Justice [sic] Neville.  First order made on the 21 September 2012, in relation to travel costs following the Mother’s relocation to (omitted).  See attached Orders made on the 21^st September 2012. …

   4) An Outline of Argument was prepared by Marcus Hassall – Counsel for the Appellant Mother.  Dated 19 December 2012.  See Outline of Argument by Appellant Mother prepared by Marcus Hassall (19 September 2012). …

   5) An Appeal was allowed on the 4^th of April by Justice Finn.  See Orders made and Reasons for Judgment. …

   6) The second order was made on the 10 December 2012 in relation to the Father applying for passports for both Children to travel to (country omitted).  See Orders from 10 December 2012. …

   7) The Applicant had then filed a Notice of Appeal on the 4^th January 2013 with the Eastern Appeals Registry in Sydney.

   8) The Appeal was heard by Justice Finn on the 31 July 2013 in Canberra.  The Appeal was dismissed on the 26 August 2013.

   9) I am concerned that I will be treated with Prejudice [sic] due to previous dealings in the Court before His Honour.

1. In her written submissions, filed 14^th April 2015, the Mother repeated and amplified her “concerns”.  Summarily stated, they were as follows, with occasional comment or observation.

2. First, the Mother confirmed that she remained a self-represented litigant.  For the purposes of the current Application, I fail to see the relevance of this

3. Secondly, in paragraphs 3 – 12 the Mother outlined the two previous decisions of this Court regarding (a) travel costs between Canberra and (omitted), and (b) the children travelling overseas with the Father.  She also noted the result of the appeals in both of those matters.

4. In paragraph 13 she set out the applicable basal principle, albeit in slightly abbreviated form, in relation to apprehended bias from Ebner v Official Trustee in Bankruptcy.[7]

   [7] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

5. The Mother contends that evidence of such [apprehended] bias (I note, uncritically because of her self-represented status, the Mother does not distinguish between actual and apprehended bias) is based on a comment made by me in the course of the hearing on 10^th December 2012 which she set out as follows from the transcript of that date: “No. no.  I am acutely aware of that because I made orders in relation to the transport costs following the other appeal.”

6. Kindly, Ms Lorreck attached the relevant transcript to her submissions.  The quote she refers to is a comment made by me in the course of a hearing on 10^th December but which related to whether or not I was aware that the Mother resided in (omitted).  Respectfully, I have difficulty seeing how that comment shows, or would show, to a ‘fair minded lay observer’ that I might not bring an ‘impartial and unprejudiced mind’ to the issues to be decided.

7. Paragraph 15 referred to the Court’s initial direction that the Application would not be heard by telephone, but which was later amended to allow the matter to proceed by way of written submissions (with which course the parties ultimately agreed) and that, at the relevant Court event on 27^th February, and after some discussion by email, Ms Lorreck attended by telephone.

8. Paragraph 16 submitted (summarily stated) that because of the earlier decision to allow the children to travel overseas with their Father, this earlier knowledge will be brought into the consideration of the current matter.  Paraphrasing the test for apprehended bias set out in Ebner, the Mother said that any reasonable lay observer would share her concerns about bias based on the earlier decision, and further, the Mother said that she was concerned that “she will continue to be treated in a prejudicial way.”

9. The Father’s submissions (which erroneously refer to Finn J and myself both as “magistrates”) noted that (a) he has been in litigious contest with the Mother since 2011, (b) he considers that this Court and the Family Court have dealt with all matters in a fair way, which included that he has not always been successful in his applications.  The Father also said that there had never been any suggestion in previous applications of any “impropriety or bias”, and that in all previous proceedings “evidence has been duly considered and all procedures followed.”  Accordingly, said the Father, the recusal application (regularly spelt “recues” in the submissions) should not succeed.

Consideration & Disposition: Recusal Application

1. In Michael Wilson & Partners Limited v Nicholls, at [63], the High Court commented on the test for apprehended bias and its application as follows:[8]

   In Ebner v Official Trustee in Bankruptcy, the plurality pointed out that application of the apprehension of bias principle requires two steps. First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. And second, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.

   [8] Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427. There is nothing in the High Court’s most recent consideration of the principle in relation to apprehended bias, in Isbester v Knox City Council [2015] HCA 20 (10^th June 2015), which warrants comment in the current matter.

2. The High Court further commented in Michael Wilson, at [67]:

   … an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been "the crystallisation of that apprehension in a demonstration of actual prejudgment" impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.

3. I note in particular from this last quotation the High Court’s warning about using final reasons to draw a conclusion about some alleged bias against the party who was unsuccessful in the litigation.  In certain respects, the submissions of the Mother in the current matter seem to follow this course which the High Court said was erroneous.

4. Other cases that deal with apprehended bias (which I need not detail) confirm that (a) judicial officers should not too readily accede to applications for recusal, and (b) the ‘fair minded lay observer’ will have some reasonable or basic knowledge of how litigation is conducted, as well as some basic appreciation that judges are not exempt from ordinary human frailties, and that robust or direct discussion does not, of itself, give rise to apprehended bias.

5. I have already noted the various grounds upon which the Mother contends that the test in Ebner for apprehended bias has been satisfied.  Summarised, those grounds, as best I understand them, are (a) because of the earlier decision that permitted the children to travel overseas with the Father (which decision was upheld on appeal), and (b) because of a comment made in the course of a hearing by telephone on 10^th December 2012.  In relation to this second ground, I have already noted that the comment relied upon by the Mother was taken out of context.  But in any event, in my view, neither the comment relied upon by the Mother, nor the transcript of the hearing on that day, could properly or reasonably be taken to satisfy the Ebner test.

6. In relation to the first ground I have identified from the Mother’s submissions and affidavit material, in my view, she has not demonstrated any causal connection – apart from the general similarity of the Father’s application for holiday travel in 2012 and now in 2014/15 – between that decision and the current application. She has not shown, particularly in the light of her unsuccessful appeal against the 2012 “travel decision”, that the earlier decision did not properly consider the facts put before the Court, or that the Court did not (or would not) properly consider the travel Application for the boys against the basic principle of their best interests in accordance with s.60CA of the Family Law Act 1975 (“the Act”).

7. The basic (but not completely articulated) proposition upon which the Mother relies is that any judge who has determined a matter adversely to her must necessarily be biased against her, and that such a person will necessarily continue to determine any application not by reference to the evidence, submissions and relevant principle, but will make decisions that are calculated to affect the Mother adversely.  If accepted, among other things this would lead to a form of “judge shopping” each time a party was unsuccessful before a particular judge; one simply moved to the next judge in the queue.  Such a course is unacceptable (hence the judicial instruction noted earlier that judicial officers should not too readily accede to recusal applications).  Equally unacceptable is the general proposition(s) set out at the beginning of this paragraph regarding the proper determination of matters by reference to the evidence, submissions and relevant principle.  Presumably the considerations or propositions just set out would apply to judges at first instance, as well as any judge/Justice who has heard an appeal from the Mother and has ruled against her.

8. In all of the circumstances, in my view, the recusal application is not made out.  The Mother has not relevantly shown any fact, circumstance or conduct that could satisfy the requisite test in Ebner in relation to apprehended bias.  Nor has she shown, in accordance with the discussion by the High Court in Michael Wilson (set out above), the requisite connection between the facts she alleges of apprehended bias and the asserted conclusion that I would not bring an impartial mind to bear on the issues that are to be decided.  Further, and very significantly in my view, in relying upon what was previously decided in relation to the earlier travel application by the Father, the Mother has not properly addressed (or done so at all) that her appeal to the Family Court in relation to that decision was unsuccessful. 

9. For the reasons given, in all of the circumstances, the Mother’s [recusal] Application in a Case must be dismissed.

The Father’s Travel Application

1. In his affidavit the Father set out briefly:

   (a) why he wished the children to go on such a holiday (primarily to be able to experience different parts of the world – having previously travelled to (country omitted) in 2013 with them – and to do so as a family with his Wife and their other children),

   (b) the attempts to seek the Mother’s consent to such a trip (of approximately four weeks to (country omitted)),

   (c) the assurance given to the Mother that he would contact the children’s school, among other things, to obtain school work that might be missed while on vacation,

   (d) the Mother’s email response on 12^th October 2014 in which she said that she would take the children to (country omitted), and later (on the same date) that in her view a trip to (country omitted) would not be in the children’s best interests, and

   (e) the Father’s email to the Principal of the children’s school outlining the intended trip and assuring him of the intention to assist with any “learning tasks” required of the children while away.

2. Because the proposed trip would involve the children spending some extra time with the Father (and the rest of the paternal family) the Father sought some slightly clumsily worded orders that accounted for this extra time.  In fact, his first order sought would be sufficient to enable the travel to occur, which necessarily required the children spending the extra time with him.  The actual orders sought were in the following terms:

   1) Approval to obtain 17 extra days (between 1^st September 2015 and 17^th September 2015) with my children X and Y, in addition to the allocated Spring Holiday in 2015 (commencing on 18^th September 2015 and ending on 5^th October 2015)

   2) Approval to take my children X and Y for a holiday in (country omitted) in September 2015 for a period of approximately 3 to 4 weeks.

3. In his written submissions, the Father said:

   (a)He and his Wife had a strong focus on education in their household; they saw overseas travel as being part and parcel of this educational tradition and experience;

   (b)The Father also saw overseas travel as an opportunity for the family “to share experiences both rich and rewarding”;

   (c)He next referred [again] to the rich experiences “for all of my children” that would flow from visiting “the most historic and widely visited cities of the world” ((country omitted)).  He submitted that such experiences were in the children’s best interests;

   (d)Next, by reference to a certain declaration regarding “education goals” and to the Victorian Essential Learning Standards, he said that the overseas trip would enable the children “to be globally connected, informed and active for their long term benefits.”  In my view, as admirable as these goals are generally, they might be a tad overstated;

   (e)The Father further submitted that overseas travel is “effective international education for our children.”  He said that the children travelling overseas has enabled them “to build their personal and social competence as well as their intercultural understanding.”  This included aiding in their “foreign linguistic skills;”

   (f)He referred to various benefits that the children gained from their trip to (country omitted) in 2013;

   (g)The Father emphasised that with the boys living with the Mother for “more than 80% of their time” in (omitted), this is a barrier towards establishing “healthy connections with myself, my Wife and their brother and sister.”  Overseas travel would aid, he said, the building of healthy connections among family members and would “create strong bonds.”  He noted that various [un-named] studies had established the health benefits of travelling together.  He also contended that the experiences of travelling overseas to the destinations he proposed was unique and could not be replicated in Australia; and he noted again that the 2013 trip with the children to (country omitted) and other members of the Father’s family was a wonderful experience for all;

   (h)The Father said that the proposal to travel to (country omitted) was deliberate with a view to educating the boys about their maternal heritage.  The [general] understanding of this heritage by these children would also provide background understanding for their siblings;

   (i)The Father and his Wife propose to give three of their children (X, Y and A) a project to complete in relation to this trip as part of the ‘extension to their formal education.’  The Father also said that the Principal of the boys’ school had expressed a view that the overseas trip proposed was beneficial to them.  A similar view was expressed, said the Father, by their daughter’s school.  Accordingly, in the Father’s view, the proposed trip was in the boys’ best interests.  He also noted certain absences from school by the boys, which led him to comment that the time he proposed for the trip would be not much greater than time they had missed from school otherwise in 2014.

The Mother’s Response to the Father’s Travel Application

1. The Mother’s Response (filed 17^th March 2015) sought the following orders:

   1) That the Father be restrained from taking the children, X (born (omitted) 2002) and Y (born (omitted) 2007) outside of Australia;

   2) That the Father deliver up the Children’s passports to the Court;

   3) The Australian Federal Police place X (born (omitted) 2002) and Y (born (omitted) 2007) on the Airport Watch List;

   4) That the Australian Federal Police assist with the implementation of these orders;

   5) That the matter be transferred to the Federal Circuit Court in Cairns, North Queensland.

2. 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 13^th 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 17^th 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.

The Mother’s affidavit (filed 17th March 2015)

1. Paragraphs 1-6 of this affidavit outline the Mother’s complaints regarding what she says was the late service of the Father’s Application and the incomplete nature of the documents served.  Because the Mother has engaged in the process and with each of the Father’s grounds of his Application, and because the parties agreed that the matter be determined by way of submissions, in my view, I need not deal with these paragraphs any further.

2. Paragraphs 7 – 10 outline the Mother’s concern about the boys being taken out of school for travel during a school term.  She says that they will miss 17 days of school.  She also says that the Principal of their school has indicated that it would be preferable for travel to take place during school holidays.

3. Paragraphs 11 – 27, in large part, detail a range of difficulties experienced by X primarily in doing his school work and attendance at school.  Issues in relation to X’s conduct at school (e.g. disorganisation, being late for class, failure to bring in homework, etc) are also set out.  X has also had a number of detentions.  A range of annexures are provided in support of the claims made by the Mother.

4. The latter part of these paragraphs (21 ff) outlines some health issues with Y (e.g. asthma), and also complains about the Father’s [alleged] lack of support in relation to attention to such matters, which were the subject of examination in the 2011 first instance proceedings in this Court.

5. The Mother further contends (par.27) that the Father permits the children to stay up late when in his care, and that if they went overseas they would suffer from jet-lag, which would have (in her view) “a tremendous impact on their return to School.”

6. Paragraphs 28 – 37 outline further the Mother’s concerns about X’s schooling and the fear that he will have to repeat Year 7.

7. Then in paragraphs 38 – 42, the Mother sets out her reasons why the boys’ travel should be in the December school holidays.

8. Paragraphs 43 – 54 outline the Mother’s contentions regarding the lack of detail given by the Father about the proposed trip.  She says that no detailed or accurate itinerary was given in relation to the 2013 overseas trip and the difficulties that occurred in trying to contact the children while overseas.

9. The Mother also says that she is not confident that the Father will assist the boys with assignments and homework whilst on the overseas trip.

10. For these reasons, the Mother says that it is not in the children’s best interests to travel overseas as proposed by their Father with his family.

11. The remainder of the Mother’s affidavit (pars.55 – 64) deals primarily with matters from her trial affidavit in the 2011 proceedings regarding “risk.”  Later paragraphs contain allegations regarding the Father’s purported withholding of financial support, and finally, the Mother’s own inability to afford to travel to (country omitted).  Part of this, she says, is due to litigation with her former lawyers regarding recovery of costs.  None of these matters, in my view, is properly relevant to the current Application.

The Mother’s Submissions

1. The first 6 paragraphs of the Mother’s submissions provide the historical background and the Full Court’s determination in 2012 that the Mother and the children should be permitted to move to and reside in (omitted).  She repeated her submission (made in her affidavit) that the Father’s Application was served late and incomplete and should be struck out.  For the reasons given earlier, I do not propose to comment on these paragraphs.

1. From paragraph 7 onwards, in alternative submissions, the Mother outlined her grounds of opposition to the proposed overseas travel by the Father and the boys.  Summarily, those grounds may be stated as follows.

2. First, the proposed travel is during the school term.  It follows from this, said the Mother, that this would be disruptive to the children’s education and would break their normal school routine.

3. She also submitted that the overseas trip would be disruptive to the boys’ normal after-school routine, such as swimming and gymnastics.

4. Further, she said that the children returned to (omitted) from time with their Father feeling tired and exhausted which then made it difficult for the boys to get up for school.  It would be more difficult to get them up for school if they were jet-lagged after an overseas trip.

5. I might pause here simply to observe, nothing more, that it might be a reasonable expectation that regular air-travel for the boys (and any flow-on consequences such as fatigue, which presumably passes without too much difficulty) was a necessary consequence of the Mother’s successful appeal which permitted her to relocate to (omitted) Queensland.

6. Paragraphs 12 – 18 deal largely (or repeat) the Mother’s concerns about the educational risks to X should he go overseas.  These concerns relate, among other things, to X struggling with homework and him missing “a significant period of school.”  The latter, she said, may lead to X having to repeat Year 7.

7. Paragraphs 19 – 21 deal with why, in the Mother’s view, the overseas trip is not in Y’s best interests.  The concerns expressed relate to the proposed trip being disruptive to his daily school routine and “extra curricular” activities.  She also contends that the Father will not administer Y’s asthma medication because he has not done so in the past.

8. In paragraphs 22 – 23, the Mother submitted that it would be more appropriate that the overseas trip take place in the December school holidays.

9. The last part of the Mother’s submissions contend that the Father has not given sufficient detail of the proposed trip.  She outlined further the various familial relations in (country omitted) which, she says, do not justify or support the Father’s travel to (country omitted) as proposed.

10. In her further affidavit, filed 5^th May (which was not provided for in the Court’s time-table), the Mother outlined the following matters.  Unfortunately, some of her comments were not always intelligible, and as with much of her correspondence with the Court, not directly relevant to the matters that the Court is required to address.

11. First, that she was self-represented – a fact advised on multiple occasions.

12. Secondly, she set out (pars.2-3) the time-table for filing, and her receipt by post of the Father’s submissions.  In terms that are only partly clear, she then said:

    The Applicant wrote animal to the Associate to Justice [sic] Neville on the 21^st April 205 regarding clauses 6.2 and 6.3 of the Respondent’s submissions made to the Federal Circuit Court.  Attached to this Affidavit is the email dated 21 April 2015 – sent to the Associate to Judge Neville.

13. The email to my Associate confirms the Mother’s intention to challenge the Father’s contentions in his submissions regarding the number of days the children have been absent from school, as well as checking with the Principal regarding his view(s) about the proposed trip.  How and why such a challenge (or correspondence to the Court) was necessary was not explained, given that the Mother had already detailed at some length (noted above) the frequency of X’s absences from and difficulties at school.

14. The Mother annexed to her affidavit two letters from Mr N, the Head of Primary at (omitted) College in (omitted).  He corrects statements in the affidavit of the Father, and in the second letter, he confirms the absences of X.  In my view, the comments of Mr N do not take the matter very much further.  For example, he noted in his letter (dated 22^nd April 2015) that he spoke with the Father on a “without prejudice basis”, that he was not the College Principal but only the Head of Primary.  He also said, among other things, that he had acknowledged receipt of the Father’s email of 30^th October 2014 and the request contained in it, but that because the class selection process had not been completed (I assume for 2015) he would not know who X’s teachers would be.  In a similar vein, Mr N said that X would not be under his authority in 2015.

15. In the later letter, Mr N confirmed that the school record system was inaccurate and that the previously recorded absences of X should have been recorded as the child being “late” rather than absent.  Again I do not see that this information is particularly relevant to the issues before the Court.

16. The Mother further challenges other statements made by the Father, such as her place of birth, the Father’s contentions regarding the utility of the trip to (country omitted) and his encouragement (or lack of it) of the children to speak (language omitted) when the parties were together.  She made further comments on what is and what is not taught in the Queensland Education System, [again] on the Father’s alleged failure to contribute financially to the care and welfare of the children, that the boys’ school has not “officially” granted an exemption in relation to the children being taken out of school for the proposed trip, and finally, she commented [again] on X’s struggles with school work.

Consideration & Disposition

1. I will not repeat relevant comments in relation to the original travel application set out in the reasons of this Court, delivered on 10^th December 2012.[9]  However, to the degree relevant, general reference should be made to that decision, not least in relation to my concerns about the risk of damage being done to the boys by the unabated hostility between the parents.  That damage seems (I do not put it any higher than an impression or possibility; in any event, I cannot make any formal finding without proper evidence) to be coming more manifest or evident particularly in the case of X with his difficulties at school.

   [9] [2012] FMCAfam 1499.

2. In making any orders regarding children, as already noted, their best interests must remain the paramount consideration, pursuant to s.60CA of the Act. Just so here.

3. In a number of respects, there are valid arguments on both sides. 

4. In my view, the strongest argument on the Mother’s side (leaving aside possible difficulties travelling in (country omitted) in winter – e.g. cold, inclement weather, various public and other buildings being closed for winter, etc) is that it would be less disruptive to the children’s routine (school and otherwise) if the trip took place in the December school holidays.

5. On the Father’s side, in my view, his strongest arguments relate to (a) the ‘bonding opportunity’ for the paternal family (including with the boys’ siblings)[10], (b) the much lesser opportunities for the Father and his family to spend time with the boys otherwise than on holidays because of them living with their Mother in (omitted) Queensland while the Father and his family continue to reside in Canberra,[11] and (c) the general educational opportunity that travel provides for young people.

   [10] Such a consideration in the making of parenting orders is prescribed in s.60CC(3)(b).

   [11] Considerations of cost and “practical difficulty” are noted in s.60CC(3)(e).

6. In addition to these considerations, I note the following further matters:

   (i)I assume the boys know generally (or are likely to do so, especially from their siblings) about the proposed trip.  If they do not go with the rest of the paternal family there will be the natural disappointment of missing out on such a time together with the paternal family.  This could strain relations between the children and their Mother - because she may be blamed for not allowing them to go, and equally with the Father;

   (ii)The boys’ current school issues (notably those identified by the Mother concerning X) could reasonably have some connection to the ongoing discord between the parents.  Missing out on this trip may exacerbate these tensions;

   (iii)The range of difficulties regarding school in relation to X (e.g. regular lateness to school, difficulties with homework, etc) has no immediate or causal connection with the Father.  If anything, they could be said to reflect on the Mother simply because she is their primary carer.  A trip that is relaxing and very engaging could be something of a ‘circuit-breaker’ regarding such difficulties;

   (iv)The Mother confirms that her financial plight makes it impossible to take the children on such grand holidays.  It might be said that it is mean-spirited (and therefore not in the children’s best interests) if one parent who is without the necessary resources deprives the other parent (who has the necessary resources), to provide the children with overseas holiday;

   (v)Other than the Mother’s assertion, I have no evidence to confirm that the Father would be so negligent as to not properly attend to any medication either of the boys would require while on holidays.  Similarly, other than assertion, there is nothing to suggest or to confirm that the Father (and or his Wife) would not attend to any educational task or assignment that was set either by them or the school.

7. This is a discretionary judgment.  I have sought to weigh up and consider, in the light of what is in the boys’ best interests, the benefits and disadvantages of an overseas trip as proposed by the Father.  On balance, in my view, the trip as proposed is in their best interests.  Provided adequate and detailed information is given to the Mother no less than 14 days prior to departure (e.g. itinerary, flight information, emergency contact details), the orders sought by the Father should be made.

8. But this is not the end of the matter.

Amendment to Final Orders?

1. No inquiry or suggestion to the parties is easy; it invariably results in a large number of inquiries and clarifications, particularly by the Mother.  In a number of respects this is not so unusual with self-represented litigants.  These self-represented litigants are not new to litigation; this is a statement of fact, not a criticism.  The proposal by the Court that the matter (the Father’s travel application for the boys) be dealt with by way of written submissions resulted in multiple emails and ultimately the matter having to be re-listed, with the Mother attending by telephone.

2. Likewise, the Court’s inquiry/suggestion that, rather than have to keep making applications over the same thing (in this instance, travel), it might be beneficial to all parties to amend the final orders made by the Full Court, which did not include provision for overseas travel.  This suggestion/inquiry also led to multiple emails by way of clarification and the like.

3. The main thing the Court wanted and sought to do was to minimise (a) the parties’ need to engage in contest, (b) to assist the parties in removing one area of contest from their regular tussles, and (c) to minimise the never-ending drain on the Court’s capacity to deal with repeat Applications in the face of never-ending Applications from new litigants, often with very grave issues to address (i.e. issues more grave and troubling than children going on an overseas holiday).  In making such a suggestion/inquiry of the parties, albeit a bit late in the day so to speak, the Court must ensure that there is procedural fairness so that both parties at least have a reasonable opportunity to address the matter raised by the Court, should they wish to do so.

4. In the result, however, in my view, the recent suggestion or inquiry by the Court to the parties really only added extra work for all.  And, in any event, in my view, the orders by this Court made on 10^th December 2012, and upheld on appeal, are sufficiently broad as to not need any relevant amendment.  As they stand, on their face they are sufficient, and importantly they are not limited to any specific trip or period of time, to allow the Father and the boys to travel overseas.  On their face, the orders of December 2012 are sufficient to accommodate the Father’s intention for the September 2015 trip to (country omitted) and (country omitted).  Further to this, as already noted, those orders were not disturbed by the Mother’s appeal.[12]  On that basis, the Mother’s appeal having been dismissed, I have difficulty in seeing on what basis those orders can be resisted for a second time, with them having successfully survived the challenge to them in 2013.

   [12] Although already noted, the relevant appeal judgment reference is [2013] FamCAFC 128.

5. I should add here that both parties filed written submissions within the time prescribed in response to the Court’s suggestion/invitation, to amend the final orders of 2012.  Without going into detail, this led to the Father, not surprisingly, pointing out the strictures that are placed on the development of his relationship with the boys as a result of the orders of the Full Court and the Mother being able to relocate to (omitted), and therefore the need to amend the 2012 orders. 

6. For her part, the Mother’s submissions ranged quite widely, including (in the light of the Malaysian airlines disasters) to wanting the Court to proscribe the airlines the Father is permitted to fly with.

7. Precisely because of the width of orders sought in these supplementary submissions, and because of my view of this Court’s last travel orders, it would be too dangerous (and procedurally impermissible) to stray too far from the Application as filed by the Father.

8. 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 boys, 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.

9. In the light of the above, the orders that should be made, as I have indicated, are to allow the Father’s proposed trip with the boys to (country omitted).  In addition, there should be a further order simply to confirm the orders made by this Court dated 10^th December 2012.  There will be a notation that those orders were not disturbed on appeal.

10. There are two final matters to address.

11. 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.

12. Secondly, the Father sought no order for costs.  The Mother has indicated on multiple occasions her difficult financial circumstances, which, she says, include on-going litigation against her apparently to recover costs.  I simply observe that impecuniosity should not be or become a licence to litigate using public resources without the need to take some responsibility for such conduct.  Subject to the nature of any future Application, and subject to relevant evidence, a costs order may be an appropriate order.

13. One general series of observations also seems apposite.  In the course of surveying principles of case management, in Expense Reduction Analysts v Armstrong Strategic Management the High Court looked at (as I have already noted) the situation in the United Kingdom.  The High Court firstly quoted, at [38], comments from the Woolf Report (emphasis added):[13]

    It was there made clear that case management was a central plank of the civil procedure reforms. Commenting upon developments in Australia which “show the way forward”, Lord Woolf MR said:

    In ... my interim report I described the introduction of judicial case management as crucial to the changes which are necessary in our civil justice system. Ultimate responsibility for the control of litigation must move from the litigants and their legal advisers to the court.

    [13] Woolf, Access to Justice: Final Report to the Lord Chancellor on the civil justice system in England and Wales, (1996) at p.14.

14. Then at [39], the High Court quoted from a recent judgment of the Court of Appeal (UK) (emphasis added):

    Speaking of what the case management provisions in the CPR might mean for the conduct of litigation, in Jameel (Yousef) v Dow Jones & Co Inc[14] the Court of Appeal explained that:

    It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it.  The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice.

    [14] [2005] QB 946 at 965 [54].

15. Respectfully, such comments need diligent application, otherwise all too scarce public resources are consumed by cases and controversies that should be quelled by much less taxing (for parties and the Court) processes.  Further, as others have noted, unmeritorious cases need to be weeded out of the Court system in the most expeditious manner.

16. And to return to the current matter: after more than 90 paragraphs in these reasons, countless emails from the parties and the Court, countless hours considering such correspondence as well as past judgments of this Court and the Full Court, the boys may [again] go on an overseas holiday with their Father and their siblings.  In all of the circumstances, this matter very much borders on properly being classified as “unmeritorious.”  The Application should not have been necessary: consent to the travel (if it had been necessary) should have been given, and proper arrangements for school work and the like should have been arranged.  And further, as already noted, it is a tragedy that the on-going contest between the parties continues; it does not bear thinking about how much damage it is doing to the boys.  It could be one very basic reason why, for example, X is having the ongoing difficulties he does at school as outlined by the Mother.

17. 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 boys’ passports to be kept at Court upon their return from (country omitted).

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Neville

Associate: 

Date:       19 June 2015