Dickson and Dickson

[2014] FCCA 2184

FEDERAL CIRCUIT COURT OF AUSTRALIA

DICKSON & DICKSON [2014] FCCA 2184

Catchwords:
FAMILY LAW – Wife filed an Application seeking financial and parenting orders – husband filed a Response seeking a permanent stay of the wife’s application on the basis Australia is clearly the inappropriate forum to determine the wife’s application – the parties and 3 children of the marriage are joint (country omitted) and United States of America citizens living in Australia since 2009 because of husband’s employment – the husband is returning to United States of America in October 2014 because of employment – the wife and children wish to remain in Australia to enable the parties’ 16 year old twins to complete their secondary education – the wife and children are currently on subclass 457 visas arising from the husband’s employment in Australia –  because the husband is leaving Australia on 1 October 2014 the wife and children will need to apply for student visas to remain in Australia – there is no guarantee they will obtain visas – because of the urgency of the parenting matters, by agreement the matter proceeded on parenting matters and the stay application only – Held: – as the court only determining parenting the test for determining the forum is the best interests of children and on that basis Australia found to be the appropriate forum for parenting matters to be heard – best interests of children is they remain living in Australia with the wife to enable them to complete their secondary education.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

ZP v PS (1994) 181 CLR 639
AMS v AIF (1999) 199 CLR 160
U & U 211 CLR 238
EJK v TSL (2006) 35 FamLR
Pascarl & Oxley (Edited) (2013) FLC 93-536
Zanda & Zanda [2014] FamCAFC

Applicant: MS DICKSON

Respondent: MR DICKSON

File Number: MLC 3066 of 2014

Judgment of: Judge Bender

Hearing date: 3 September 2014

Date of Last Submission: 4 September 2014

Delivered at: Melbourne

Delivered on: 22 September 2014

REPRESENTATION

Senior Counsel for the Applicant: Mr Dixon

Junior Counsel for the Applicant: Mr Combes

Solicitors for the Applicant: Alpass & Associates

Senior Counsel for the Respondent: Ms Kirton

Junior Counsel for the Respondent: Ms Stoikovska

Solicitors for the Respondent: Jo-Anna F S Moy Solicitor

ORDERS

1. The parties have equal shared parental responsibility for X, born (omitted) 1998 (“X”) and Y, born (omitted) 1998 (“Y”).

2. X and Y live with the wife.

3. X and Y spend time and communicate with the husband as agreed between the parties and if possible for no less than half of the Australian school holidays.

4. The parties sign all documents and do all things as soon as practicable from when they are requested to do so by the other party to facilitate the wife, X and Y’s continuing residence in Australia.

5. The Order of the Federal Circuit Court of Australia restraining the removal of X, female, born (omitted) 1998 (“X”) and Y, female, born (omitted) 1998 (“Y”), from the Commonwealth of Australia dated 2 June 2014 be discharged.

6. The Australian Federal Police remove the names of X and Y from the Airport Watch List at all points of international arrivals and departures in Australia.

7. Pursuant to Rule 8.02(1) of the Federal Circuit Court Rules 2001, the balance of these proceedings to be transferred to the Family Court of Australia.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3066 of 2014

MS DICKSON

Applicant

And

MR DICKSON

Respondent

REASONS FOR JUDGMENT

Introduction

1. The wife filed an Initiating Application in this matter on 10 April 2014 in which she sought property orders only.

2. On 28 May 2014 the husband filed a Response to Initiating Application in which he sought the wife’s application be dismissed or in the alternative it be permanently stayed on the ground that the

   
   

   Federal Circuit Court of Australia or other court exercising jurisdiction conferred by the Family Law Act1975 is the clearly inappropriate forum.

3. In the affidavit sworn by the husband on 27 May 2014 in support of his response at paragraphs 22 and 23 the husband deposes that he will be returning to the United States of America to work in October 2014 and that he is:

   “…intending to leave Australia with the twins so they can commence school in the United States of America at the commencement of the school year in the United States of America in August 2014.”

4. On 30 May 2014 the wife filed an Amended Initiating Application in which she sought parenting and spousal maintenance orders as well as property orders. The wife sought urgent interim orders for the parties’ minor children X (“X”) and Y (“Y”) both born (omitted) 1998 to live with her, for the husband to be restrained from removing X and Y from the Commonwealth of Australia and for spousal maintenance.

5. The matter came before the Court on 2 June 2014. On that occasion interim orders were made inter alia in the following terms:

   11.(a)    Each of MS DICKSON and MR DICKSON and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of X born (omitted) 1998 (female) and Y born (omitted) 1998 (female) from the Commonwealth of Australia.

   (b)X and Y be and are hereby restrained from leaving the Commonwealth of Australia.

   12. It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said child or children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia.

   13. The Father pay to the Wife the following: -

   (a)        The sum of $500 per week by way of interim spousal maintenance; and

   (b)Pending the determination of the review by the Child Support Agency of the child support payable by the Husband to the Wife for X & Y, the sum of $250 per week.

   14.    The Husband shall maintain family health insurance at the current level of cover.

   15.    The Husband shall forthwith cause to be paid the school fees at (omitted) Grammar School for the parties’ daughter Z.

6. On 2 June 2014 the wife’s application in relation to parenting matters and the husband’s application for a stay of the wife’s application was listed for urgent hearing on 3 September 2014. Directions were made for the parties to file their trial affidavits and to obtain a private Family Report.

7. At the commencement of the hearing on 3 September 2014, it was confirmed that the only matters being determined at the hearing were the following:

   a)Should the wife’s application before this court be permanently stayed on the basis that Australia is not the appropriate forum for its determination?

   b)Should X and Y remain living in Australia with the wife and their older sister Z born (omitted) 1996 (“Z”) to enable them to complete their secondary education in Australia or live with the father in the United States of America?

8. It is the wife’s submission that Australia is the appropriate forum for the determination of parenting issues between the parties as the appropriate test to determine this matter is what is in the best interests of the children. In circumstances where X and Y are currently resident in Australia it is argued on behalf of the wife that it is clearly in their best interests that this matter be determined in Australia.

9. It is the husband’s submission that as the wife is seeking orders in relation to both parenting and financial matters, the principles to be applied in determining whether there should be a stay of the wife’s application are those applicable at common law, and that in this matter Australia is clearly the inappropriate forum.

Background

1. The wife was born in (country omitted) on (omitted) 1971 and is aged 43 years.

2. The husband was born on 30 May 1965 in (country omitted) and is aged 49 years. The husband is a (occupation omitted) in (duties omitted) and holds a (qualifications omitted).

3. The husband, wife, Z, X and Y have joint (country omitted) and American citizenship.

4. The parties met in (country omitted) in 1994 and married in (country omitted) on (omitted) 1995. At that time the husband was employed by (employer omitted) (“(employer omitted)”). The husband has been employed by the various subsidiaries of (employer omitted) since 1991.

5. The parties’ eldest daughter Z was born in (country omitted) on (omitted) 1996, the parties having moved to (country omitted) as the husband had been offered a promotion.

6. In 1997 the husband was offered a promotion with (employer omitted) to their United States office. The parties relocated to the United States in August 1997. X and Y were born in (city omitted) on (omitted) 1998.

7. In 2003 the husband was offered a promotion to (employer omitted)’s head office in (city omitted) and the family moved to (omitted) in (city omitted). Z, X and Y attended (omitted) School in (omitted).

8. In 2009 the husband was offered a promotion to (title omitted) at (omitted) region based in Melbourne. The family relocated to Melbourne in July 2009.

9. Initially Z, X and Y were enrolled at (omitted) College but moved to (omitted) Grammar School in 2012.

10. Z is completing Year 12 at (omitted) Grammar School and the parties are in agreement that she will complete her VCE in Australia. X and Y are completing Year 10.

11. The husband was granted a 457 work visa in May 2009 which was extended to April 2017 in 2013. The wife, Z, X and Y are the secondary applicants to this visa.

12. In 2013 the husband prepared an Application for Permanent Residency. Because of taxation issues, the husband did not immediately lodge that application.

1. In late 2012 the husband was offered a possible promotion by (employer omitted) which would have required the family to relocate to (country omitted). In January 2013 the family visited (country omitted) and a decision was made not to accept the promotion. It is the husband’s evidence that this was because the wife did not wish to relocate to (country omitted). It is the wife’s evidence that she opposed the relocation on the basis that Z, X and Y should be allowed to complete their secondary schooling in Australia.

2. It is the wife’s evidence that the parties’ marriage has been difficult for some years. On 28 February 2014, whilst the husband was in the

   
   

   United States of America for work, the wife instructed her solicitors to send an email to the husband annexing a letter advising of her decision to separate and seeking to resolve financial matters between them. The wife’s decision to separate same as a complete shock to the husband.

3. Whilst the husband was in the United States of America in February 2014 it was announced at the (employer omitted) meeting that the husband was returning to the United States of America to take up the permanent position of (omitted) with (employer omitted), a subsidiary of (employer omitted). This position is based in (city omitted) in (city omitted).

4. It is the husband’s evidence that he did not discuss this offer with the wife or children before accepting as he had decided to wait until he returned to Australia to tell the family “the good news” that they were returning to the United States of America.

5. Upon the husband’s return to Australia the parties separated under the one roof until May 2014 when the wife and children vacated the former matrimonial home.

6. On 12 May 2014 the husband formally signed the offer of employment with (employer omitted) to commence as (omitted) in (city omitted), (city omitted) on or around 1 October 2014.

7. The husband discontinued his application for permanent residency in Australia in March 2014.

1. The husband notified his employer that he and the wife had separated when the wife and children moved from the former matrimonial home on 9 May 2014. In accordance with their legal obligations, the husband’s employer notified the relevant authorities in Australia that the wife no longer met the criteria as a secondary subclass 457 visa holder as from 9 May 2014.

2. Upon the husband permanently leaving Australia, which will occur no later than 1 October 2014, the husband will no longer be eligible to hold a subclass 457 visa.

3. It was is husband’s 457 visa which allows the wife, Z, X and Y to reside in Australia. Upon its cancellation the wife, Z, X and Y will not be able to remain in Australia unless they obtain another class of visa in their own right.

4. The capacity of the wife and Z, X and Y to obtain visas which enable them to remain in Australia is central to the matters before this Court.

The Evidence

The wife’s evidence

1. The wife relies on her affidavits sworn 8 April 2014 and

   
   

   7 August 2014. The wife also gave vive voce evidence at the final hearing.

2. The wife also relies on the affidavit of Mr V sworn 17 June 2014. Mr V is a lawyer specialising in Immigration Law.

3. The husband relies on the evidence of a specialist immigration lawyer, Ms K. The evidence of both immigration lawyers will be considered later in this judgment.

4. It is the wife’s evidence that whilst it was always understood that the husband’s position in Australia was not permanent and the family would return to the United States of America, there was no definite time set for the return.

5. It is the wife’s evidence that in her discussions with the husband, Z, X and Y she at all times indicated her clear preference for the parties to remain in Australia until all three children had completed their secondary education.

6. It is the wife’s evidence that in 2013 the husband decided to make application for permanent residency in Australia. As the husband was the primary subclass 457 visa holder only he could make the application for permanent residency. Accordingly, it was the husband who instructed the solicitors used by his employer to manage the company’s immigration matters to prepare the application.

7. It is the wife’s evidence that the husband advised her the application for permanent residency was ready to be lodged in September 2013 but was delayed because of some taxation issue relating to the sale of his stock options. It is the wife’s evidence the husband advised her the application would be lodged by the end of January 2014.

8. The husband alleges that he told the wife, Z, X and Y in December 2013 that there was a very strong possibility that he would be offered a position in the United States of America in 2014. It is the husband’s further evidence that the parties had discussions at this time about Z remaining in Australia in 2014 to complete her VCE and of X and Y moving to the United States of America in August 2014 to start the United States of America school year.

9. The wife denies any such conversations took place and reiterated that whilst it was understood the husband would be offered a position in the United States of America at some stage, no indication had  been given as to when that might occur.

10. It is the wife’s evidence that the husband did not contact her prior to or immediately after he was offered the new position in the

    
    

    United States of America in February 2014.

1. It is the wife’s evidence that she was unaware that the husband had been offered a position in the United States of America in 2014 until her solicitors received correspondence from the husband’s solicitors dated 26 March 2014 in which it is stated at paragraph 2:

   “The board of my client’s employer resolved (in January 2014) to terminate his employment in Australia and return my client and his family to the United States of America by the end of the year. The family will have no right to reside in Australia when my client returns to the United States of America.”

2. It is the wife’s evidence that Z is exploring many options for her tertiary education. Those options include the possibility of Z remaining in Australia or attending university in (country omitted) or (country omitted). The wife confirmed that at the husband’s behest Z has applied to (omitted) University and (omitted) University in (country omitted).

3. It is the wife’s evidence that she believes it is in X and Y’s best interests that they be able to finish their secondary education at (omitted) Grammar School in Melbourne. It is her evidence that they are both expressing a strong wish to do so as they are well settled at the school, have established strong friendship groups and are progressing very well academically.

4. It is the wife’s evidence that she has always been the primary homemaker and carer of Z, X and Y because the husband’s employment involves a considerable amount of international travel. The husband concedes that his position in Australia required him to travel internationally for 40% of the year.

5. In the event the wife is unsuccessful in her application to remain in Australia it is her evidence that she would “probably” return to the United States of America and live with X and Y in (city omitted), initially with her mother and step-father who reside there.

6. It is the wife’s evidence that at this time she has not made any enquiries about possible schools for X and Y in the event they had to move to the United States of America.

7. It is the wife’s evidence she would not live in (city omitted) where the husband will be based as she has no friends or family in (city omitted).

8. It is the mother’s evidence that at this time she has not made any application for visas to enable she, Z, X and Y to remain in Australia when their subclass 457 visa is cancelled. Whilst not stated, the presumption is she has not done so pending the outcome of these proceedings.

9. The wife was asked how she would be able to afford to live in Australia if permitted to do so, especially if the visa obtained by her did not allow her to work in Australia. It is the wife’s evidence that she would expect the husband to continue to support she and X and Y to meet X and Y’s school fees. It is the wife’s evidence that the parties have in excess of AU$1 million invested in the United States of America which she could utilise to meet her living expenses in Australia.

10. It is the wife’s evidence that she believes if X and Y remain in Australia, they will be able to visit the husband during the Australian school holidays, that he will be at liberty to visit them in Australia and they and the husband will be able to have regular electronic communication via Skype and telephone.

The husband’s evidence

1. The husband relies on his affidavits sworn 27 May 2014 and

   
   

   28 August 2014. The husband gave vive voce evidence at the final hearing.

2. The husband also relies on the affidavit of Ms K sworn

   
   

   28 August 2014. Ms K gave vive voce evidence at the final hearing. Ms K is a solicitor, a registered immigration agent and an accredited specialist in immigration law. Ms K’s evidence will be considered with that of Mr V.

3. It is the husband’s evidence that the wife and children always knew his position in Australia was not permanent and that the family would be returning to the United States of America to live.

4. It is the husband’s evidence that in December 2013 he had a discussion with the wife, Z, X and Y that it was “highly likely” they would be returning to the United States of America no later than the end of 2014 and that the children were excited at the prospect of returning to live in America.

5. Given his evidence that he was expecting to return to the United States of America in 2014, the husband was cross examined in relation to an email sent by him to the solicitor with the conduct of the permanent residency application on 8 January 2014 in which the indication he was aiming to finalise financial matters by the end of January 2014 so that the application for permanent residency could be lodged by the end of that month. It is the husband’s evidence that at the end of 2013 the move to the United States of America was still not certain. He said the position became permanent with the announcement at the team leader’s meeting in the United States of America on 14 February 2014. In these circumstances he had instructed his solicitors to continue with the permanent residency application.

1. It is the husband’s evidence that in the course of his employment he travelled to the United States of America in February 2014 for two weeks. On the evening of 12 February 2014 he was advised by his manager that a new position had been created for him which would be based in the United States of America starting in October 2014. His appointment was announced to the (employer omitted) at their meeting on 13 February 2014.

2. It is the husband’s evidence that he did not contact the wife, Z, X or Y when advised of the offer on 12 February 2014 to seek their views on whether he should accept the new position. It is the husband’s evidence that he did not believe there was a need to consult with the family before he accepted the position as it had been planned for many years that the family would return to the United States of America and that the girls had always expressed a wish to return to the United States of America. It is the husband’s evidence that when he formally learned he had the new position in the United States of America, he wanted to tell the whole family the good news “face-to-face”.

1. It is the husband’s evidence that he received the email from the wife’s solicitor advising their marriage was at an end whilst he was in transit at (city omitted) United States airport. It is the husband’s evidence he immediately rang the wife and during their conversation advised her of his new position in the United States of America.

2. As noted earlier in the judgment, it is the wife’s evidence that the first she knew of the husband’s new position was when she received correspondence from the husband’s solicitors in March 2014. It is the wife’s evidence that the husband did ring her from (city omitted) but all that was discussed in that call was the email he had received and matters relating to their relationship.

3. Whilst the husband did not receive the formal offer of a permanent transfer to (employer omitted) (in the position of (omitted) to be located in the (city omitted) USA with a transfer date on or around October 2014) until 8 May 2014, it is the husband’s evidence that this letter was a mere formality and reflected the oral agreement reached between he and his employer in February 2014. It is the husband’s evidence that having orally accepted the offer in February 2014 he was not able to subsequently reject that offer.

4. It is the husband’s evidence that he has rented a three bedroom fully renovated house on the lake at (city omitted) for himself, X and Y. It is the husband’s further evidence that he has booked places in Year 11 for X and Y to commence at (omitted) High School for the commencement of the school year in late August 2014.

5. It is the husband’s evidence that his new position in the United States of America will not require the same level of travel as his position in Australia. He estimated he would only need to travel internationally for 15% of the time. That travel would be to (country omitted), (country omitted) and (country omitted).

6. When questioned as to who would care for X and Y whilst he was travelling for work given that even on his evidence he will be out of the United States of America for up to 10 weeks each year, it is the husband’s evidence his parents or sisters will travel from (country omitted) to assist in their care.

7. If the wife, X and Y were to remain in Melbourne, it is the husband’s evidence that he will have very limited capacity to travel to Australia to spend time with them. The husband is also concerned about his capacity to spend time with X and Y if they visit him during their Australian school holidays as he is only entitled to 4 weeks leave each year. The husband is also concerned about the expense of travel between Australia and the United States of America.

Mr V and Ms K

1. As set out previously in this judgment, the wife relies on an affidavit from Mr V, immigration lawyer, and the husband on an affidavit from Ms K, immigration lawyer and migration agent.

2. Mr V and Ms K both gave vive voce evidence at the final hearing. Each were afforded the opportunity to hear the evidence of the other.

3. Having read their affidavits and heard their oral evidence, Mr V and Ms K agree on the following:

   ·The wife, Z, X and Y are the secondary applicants to the husband’s subclass 457 visa. Because of the parties’ separation and the husband permanently leaving Australia, the Department of Immigration (“the Department”) will in all probability issue a Notice of Intention to Consider Cancellation of the wife, Z, X and Y’s subclass 457 visas.

   ·Upon the issuing of such Notice, a period of 14 days is allowed to enable the affected parties to respond. It is the Department’s policy not to proceed with a cancellation if the secondary applicants are able to apply for and be eligible for the grant of another visa.

   ·A subclass 571 visa (schools sector) allows the holder to stay in Australia to study a full-time or secondary school course.

   ·A subclass 573 visa (Higher Education) allows the holder to stay in Australia to study a full-time higher education courses.

   ·Z, X and Y can make applications for 571 visas and also for 573 visas if they wish to pursue tertiary education in Australia.

   ·If Z, X and Y are granted student visas, the wife can make application for a student guardian visa (subclass 580).

   ·The wife could enrol in an educational program herself and make an application for a subclass 573 student visa in her own right. If the wife obtained a student visa, X and Y would be entitled to remain in Australia and continue their education as secondary visa holders dependent upon the wife.

   ·In order for any of the applications for the above named visas to be successful, the wife and children would need to satisfy the “genuine temporary entrant requirement”. The wife would also need to meet the “financial requirements”.

4. Where the parties’ respective experts differed however was in their opinion as to whether the wife would be successful in obtaining a visa to remain in Australia, particularly a student visa in her own right.

5. In paragraph 7(d)(iii) of Mr V’s affidavit sworn 17 June 2014 he deposes:

   7(d)(iii)     Ms Dickson could of course enrol in an education program herself and it is my opinion that if Ms Dickson enrolled in a vocational program, she would be entitled to and very likely to obtain a student visa of her own. She would of course have to pay student fees as an overseas resident, but would be entitled to work up to 40 hours per fortnight during term time and full time when her course is in recess. Her children would be entitled to continue their education as secondary visa holders, dependant on Ms Dickson’s visa.

6. It is Mr V’s evidence that whilst the wife has been engaged in full-time home duties for many years, the Department would take into consideration the parties recent separation and the wife’s need to train in order to now financially support herself and the children.

1. It is the evidence of Ms K that in order for the wife to be eligible for a student visa she would need to establish that the course of study she proposed to undertake was consistent with her work and study history and that her newly acquired skills would benefit her upon return to her home country. In her affidavit sworn 28 August 2014 Ms K deposes at paragraph 49:

   49.It is my opinion that it would be unlikely that the Applicant Wife would be granted a Student visa in her own right in either circumstance. As is set out in the Regulations governing each type of Student visa application, the Department may take into account “any relevant matter” when assessing the genuine temporary entrant criterion for Student visa applications. Based on my instructions, the Applicant Wife does not have any tertiary qualification and has not undertaken work or study since the children’s birth. Moreover, her age, her immigration history (including the timing of any Student visa application in the face of a potential subclass 457 visa cancellation) and her role as a primary caregiver to the three daughters would weigh against an assessment that she is a genuine temporary entrant. The value and relevance of the court to the Applicant Wife’s circumstances indicate that an application for a Student visa was intended primarily for maintaining her residence in Australia and, indeed, that the application was being used to circumvent the intentions of the migration policy.

2. It is the evidence of Ms K that the Department would need to be satisfied that the wife’s application for a student visa is not being used by the wife as a means to remain in Australia rather than because she is genuinely proposing to study.

3. It is the evidence of Ms K and Mr V that a finding by this court that it is in the best interests of X and Y to remain in Australia to complete their secondary education would be a matter that the Department would take into account when determining an application for student visas by the children or the wife.

1. It is the evidence of both Mr V and Ms K that the Department can take some months to commence the process to issue a Notice of Intention to Consider Cancellation of the subclass 457 visa. It is the wife’s evidence that she has not received any notification from the Department at this time.

2. Given the husband’s employer notified the Department of the parties’ separation on 3 June 2014, it is the evidence of Ms K that she would expect the Department to act on the notification reasonably soon.

3. Both Mr V and Ms K recommended the wife made application for a student visa and/or student guardian visa as soon as possible.

4. It is the evidence of Ms K that she would anticipate the Department would determine any application by the wife and children for student visas within 3 months from the lodgement of those applications.

5. In the event the wife is unsuccessful in her application for an alternative visa, she would be able to pursue review procedures, initially through the Migration Review Tribunal and if necessary by way of judicial review to the Federal Circuit Court of Australia and, thereafter by way of appeal to the Full Federal Court. This review and appeal process could take between 2 to 3 years. Whilst the review and the appeal process is playing out, the wife would receive a bridging visa which would enable her to remain in Australia with X and Y.

6. Because Z is 18, she would need to make  an application for a student visa in her own right. Both Mr V and Ms K are in agreement Z would obtain a visa to enable her to complete her VCE. If Z chose to undertake full-time tertiary education in Australia, Mr V and Ms K were also in agreement that she would in all probability be able to obtain a visa to do so.

Ms R

1. Ms R is a psychologist who prepared a family report in this matter dated 4 August 2014. Ms R also gave vive voce evidence at the final hearing.

2. Under the heading “Evaluation” at paragraphs 56-59 of her family report Ms R sets out her concerns about the husband’s failure to consult with Z, X and Y before deciding to accept the position in the United States of America as follows;

   56.It appears that while the family anticipated another move, Mr Dickson did not discuss this job transfer with the children. He says he had little choice but to accept and he did so as a relocation was always expected. While in the past he may have been able to make these decisions without consultation with the family, Mr Dickson failed to consider that the children are now at a different stage of life, they are almost adults asserting their independence and that their views and needs have some weight and should be canvassed.

   57.Unlike young children who follow their parents without question, the girls are now almost adults as indeed Z is. As young women, they are beginning to form independent lives, they have established friendships and social networks which are not only harder to separate from, but more difficult and challenging to establish new friendships at this stage of their lives. It was unwise of Mr Dickson not to have considered the children’s changing needs and discussed his transfer with the family before accepting the offer.

   58.While Mr Dickson’s assessment of relocation relates to the practical and monetary considerations, he seems to have overlooked the children’s emotional and social needs and that this relocation also involves the marital separation.

   59.It is likely that both X and Y may have been more accepting of relocation had it been a family decision. Their family is their home and in the absence of any other extended family in their life and the lack of a geographical point they call home, their family unit is significantly important and central to their lives. As they have noted, irrespective of the outcome, they will lose ‘half of my family’.

3. In paragraph 60 of her family report Ms R addresses the impact on X and Y of the loss of the mother as their primary carer in the event they move to the United States of America with the father. Ms R states:

   60. A relocation to the USA at this stage of girls’ education will create significant turmoil and disruption and they will face a significant adjustment. They have had the full time care and support of their mother to date, and her absence in their day to day care will be strongly felt. While they are independent and capable girls, the added responsibility for their care at a time when they should be focussing on their studies is likely to have an impact on their progress and welfare.

4. In paragraphs 61 and 62 of her family report Ms R discusses the impact of X and Y leaving their school and current well settled friendship and social networks and having to establish themselves to a new school in the United States of America. Ms R states:

   61.The girls are settled and happy and have established good friendships and social networks. They contribute at school and are active students. Not only will they have to face the separation from the school and friends but they will have to re-establish friendships in their new home. This will be another school to the already numerous schools they have attended and another transfer at this stage of their education unless necessary should not be considered. It will add to a sense of dislocation and isolation particularly as they enter an environment where friendships and connections are already well established.

   62.If the children are to relocate, they will have little or no time to prepare psychologically for the move. In fact, the school year in the USA would have already begun by the time any decision is made by the Court. They will have very little time for farewells, readying themselves and departing and will be faces with immediate school entry without any time to attune themselves to their new environment. There is little advantage returning to (city omitted) as there has been a five year absence with no ongoing links.

5. In her family report, Ms R sets out her discussions with both X and Y on the issue of their relocation.

6. In paragraph 32 of her report, Ms R states that X told her that it had “taken her ages to settle down here” and that this was the first year that she felt “good” and settled. Ms R states that X indicated that she had “got used to it” and now had to confront the upheaval of relocation yet again. X indicated to Ms R that there had been no prior discussion about relocation and that she was simply “told” by her father that he was being transferred back to the United States of America.

7. In her family report,  Ms R states in paragraph 36 as follows:

   36.X concedes that at first she had wanted to move but says that she is not feeling so convinced about that decision now. She says that she is feeling settled here and the prospect of readjusting to a new country and school is daunting. She has put ‘so much effort’ in settling down here that ‘I don’t want to leave now’. She does not feel that now is the right time to relocate but ‘eventually I will go back’. She notes that there are only two more years before she finishes school and she will have to consider her future direction then.

8. Ms R indicates at paragraph 38 of her report that

   “X is worried that if she remains in Australia she won’t be able to see her father because he ‘won’t pay for us to travel and see him in the US’”

9. Ms R further states in paragraph 38 of her report that X told her that:

   “If ordered to return to the United States she will be ‘upset and disappointed’ but she says “I would go’. She is confident her father would be supportive and available to them but believed that ‘we’d struggle at first’ but implied that she would adjust.”

10. Like X, Y reported being shocked by her father’s announcement that they were relocating because “it happened so suddenly.” [1]

    [1] Paragraph 41 of Ms R's Family Report dated 4 August 2014.

11. Y also acknowledges that at first she wanted to go back to the United States of America but that more recently she has changed her mind and doesn’t wish to return at this time.

12. In paragraphs 43 and 44 of her report, Ms R sets out Y’s views in relation to the question of relocation as follows:

    43.Y feels that it is ‘not the right time to go back’ and would like to be able to complete her VCE. She is feeling more settled and she is happy at school. She has considered what relocation will mean for her and she finds it daunting, noting that she will have to adjust to ‘new friends….new school’ and living in a new community. (city omitted) she says is ‘actually it is in the middle of nowhere’. She reflects that ‘I’m not 10 anymore…. I have a lot more to leave behind’.

    44.At the same time, she feels that ‘I can’t leave so quickly’ because she needs time to adjust and a departure in September she feels is ‘too fast’. She feels that returning to the US this time will be ‘too big an adjustment’. Indeed, there is likely to be one parent and no intact family unit to sustain and support her.

13. Like X, Y was upset and confused by comments made to her by the husband that if she, X and the wife remained in Australia “he won’t see us”.[2]

    [2] Paragraph 42 of Ms R's Family Report dated 4 August 2014.

14. In paragraph 65 and 66 of her report, Ms R sets out her opinion as what will best meet the children’s needs as follows:

    65.Provided there are no legal or other obstacles to the children and Ms Dickson remaining in Australia, it is the writer’s opinion that the children’s needs will be better met if they remain in Melbourne and at their current school to complete their education. The twins have commenced one VCE subject this year which they are keen to finish at year 12 level next year. They rely on their mother who has been the primary and full time carer since birth for the care and support. They will benefit from her presence and care in the next two years while they study for their VCA. While Mr Dickson is able to provide care and supervision, he is in full time employment and despite his best efforts, his full time presence and care is not possible as it is with Ms Dickson.

    66.The children are not psychologically ready to relocate and they will experience stress and distress if they have to separate from their mother, school, friends and community in such a short period of time given the beginning of the school year in the USA in early September. It is likely to be a traumatic experience for them. They will miss Z’s graduation at the end of the year which is important to them as they have close sibling bonds.

15. At the end of the cross examination of Ms R, Junior Counsel for the husband and Ms R had the following exchange:

    Counsel: Now, one of the issues for Mum and the girls is Dad goes; his job finishes on 30 September; he must start his new contract on 1 October.  So he goes, his visa finishes and immediately, flowing from that, he is ..... unless some other category visa can be found.  We’ve heard evidence this morning and obviously, it will be for her Honour to do with that evidence what she will, but I think we can all safely say that, if there is one thing that is for certain, it’s that if they or any of them – that is, mother in combination with the girls or girls on their own – this is, the minor girls – continue to remain here and qualify for any other temporary visa, it will take some period of months for that determination to, in fact, be made by the immigration authorities;  right?

    Ms R:Right.

    Counsel:Now, in circumstances where one concludes that it is in the girls’ best interests to continue their studies in Australia for all the reasons that they’ve articulated to you and you’ve explained, if that were to occur, that would make them feel settled and comfortable, … if they were to stay?

    Ms R: If they were to stay and the next two years were confirmed, that would, yes, they would.

    Counsel:Yes. It would give them a sense of comfort and stability?

    Ms R: Yes.

    Counsel:However, you see, it’s nearly the end of the academic year here and it’s about to be the commencement of the academic year in the United States. In circumstances where stability, being settled, being near the end of your education is very important to these girls and to their mother, presumably because that’s what she tells you is the basis of her desire to stay here, if they in fact have to wait as they will for some months to, in fact, ultimately understand whether they can stay or not, it’s hardly in their best interests to continue this sense of instability, is it? And…

    Ms R:No, it wouldn’t. I think it would just add another layer to the distress that they’ve already experienced, but ultimately it would also depend on the outcome. Because if the outcome is that they cannot stay, again, it just complicates that whole transition period.

    Counsel:And that – and therein lies a lot of the problem, doesn’t it? Because if the girls go with father as he proposes, by starting school at, you know, obviously not on the first day they arrive but, you know, they will take a week or two to settle or whatever – by starting school, on his proposal, they will miss only a few weeks of the new Year 11 that they would commence in the United States, whereas if they remain with their older sister, Z, and complete their Year 10 here and, in the end, if the Sword of Damocles falls on them the wrong way, they effectively then are prejudiced by months of missing out of Year 11 in the United States?

    Ms R:Again, it just adds another layer to the complications of transitioning.

    Counsel:Yes. And would you agree with me, in circumstances where you’ve got young girls who are independent and capable, as you’ve described them – girls who have always understood that, really, Australia was temporary in any event – and, in any event, add to that they are realistically only talking about another couple of years, in circumstances where – as we stand in this courtroom today – where the mother hasn’t even made any application for any type of visa, the best way, what is in the girls best interests, to provide stability and security for them, to take away the stress and the dilemma, is actually to go with Dad?

    Ms R:Well, it’s certainly worth considering.

Forum

1. It is the husband’s application that these proceedings be stayed on the ground the Federal Circuit Court of Australia, or other court exercising jurisdiction conferred by the Family Law Act1975 (Cth) is the clearly inappropriate forum to determine the wife’s application.

2. It is the husband’s submission that the appropriate test to determine whether a stay of the proceedings is whether the Australian court is a clearly inappropriate forum.

3. It is the wife’s submission that the appropriate test for determining whether the proceeding should be stayed is what is in the children’s best interests.

4. The Full Court constituted by Bryan CJ, Faulks DCJ and Finn J considered the principles applicable in determining the appropriate forum in child-related proceedings in Pascarl & Oxley (Edited) (2013) FLC 93-536. At paragraph 81 their Honours cited with approval the Full Court distilled from the authorities in the matter of EJK v TSL (2006) 35 FamLR at paragraph 83. Those principles are:

   (i) where an Australian court’s jurisdiction under the Act is properly invoked in respect of a family law matter, including an application for divorce, and an issue of competing fora arises, generally the principles to be applied in respect of an application for a stay or anti suit injunction are those applicable at common law;

   (ii) in cases involving competing applications for differing types of relief arising from the breakdown of a marriage, or a de facto relationship (where the parties have children of that relationship), including some applications for parenting orders, it may be appropriate pursuant to the Court’s inherent power to grant a stay or an anti suit injunction based on common law principles;

   (iii) the granting of relief by way of a stay of proceedings is more likely to be appropriate in a case where the child or children, the subject matter of the litigation, are resident in the foreign forum, and there is no necessity to make any order other than a stay to determine the application before the Court;

   (iv) in proceedings involving competing fora when the child is in Australia and the Court’s jurisdiction is regularly invoked, and it is necessary to make a parenting order for interim residence or an aspect of parental responsibility to provide effective relief, the principles relevant to the granting of a stay or an anti suit injunction are not the appropriate principles to be applied, and the Court must make such orders as are necessary with the child’s best interests as its paramount consideration (s 60CA);

   (v) if an order sought in addition to, or ancillary to, a stay is a parenting order it must be instituted under Part VII of the Act and determined in accordance with s 60CA;

   (vi) in some circumstances, such as an abduction from a non Hague Convention country it may be appropriate for the matter to be dealt with by way of a speedy summary hearing and an order for the return of the child to the foreign jurisdiction. In making such summary order the Court will have regard to the child’s best interests as its paramount consideration;

   (vii) in cases, such as in (ii) above, where the Act does not proscribe a “best interests” requirement, the child’s best interests will often be a significant and weighty matter to be taken into account; and

   (viii) that litigation involving children is not strictly inter partes litigation, and the child’s best interests will almost inevitably be a significant matter.

5. In the matter of Zanda & Zanda [2014] FamCAFC the Full Court comprising of Bryant CJ, Ainslie Wallace and Ryan JJ, (a decision handed down after the hearing of this matter) considered the appropriate test to be applies when determining the appropriate forum to determine a parenting matter. At paragraphs 106-108 their Honours distilled the principles to be applies as follows:

   106.The correct test for determination of forum when dealing with children’s issues has not been in doubt since ZP v PS (1994) 181 CLR 639 at 660 where Brennan and Dawson JJ said:

   Once the jurisdiction conferred by s.63 of the Family Law Act 1975 (Cth) ("the Act") on the Family Court in custody proceedings is effectively invoked - and there is no doubt that both parties invoked that jurisdiction in this case - s.64(1)(a) of the Act requires that the Court regard the welfare of the child as the paramount consideration in exercising the Court's power. Section 64(1)(a) makes no exception in the case of proceedings relating to the custody of a child ordinarily resident in another country, even if the child has been abducted from that country and brought to Australia in breach of an order of a court of competent jurisdiction in the other country.

   107.As the Full Court clearly states in Pascarl & Oxley (2013) FLC 93-536:

   65. The question of which forum of two competing fora might be the appropriate place for the matter to be determined is subject to a number of now well-settled authorities.

   66.    …

   67.The High Court had cause to consider whether the Voth ‘clearly inappropriate forum’ test had application in relation to proceedings in the Family Court of Australia on the question of whether a child residing in Australia should be returned to a foreign jurisdiction so that the foreign court could determine issues concerning custody of the child (ZP v PS [1994] HCA 29; (1994) 181 CLR 639). The High Court, comprising Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ, held that the doctrine of forum non conveniens is not applicable to a custody case where the child is within the jurisdiction. Instead, in exercising the jurisdiction which has been conferred upon it, the Family Court must determine what is in the best interests of the child.

   108.After considering the authorities the Full Court in

   
   Pascarl & Oxley

   said:

   65. …the principles to be applied in parenting cases which involve a foreign element will be determined by the nature of the application before the court. Where an application is made under provisions of the Act which prescribe the best interests test, whether or not a child is within the jurisdiction, then it is that test, and not the test of forum conveniens, which will apply.

   (emphasis in original)

6. As set out in this judgment, in the principles enunciated by the Full Court in EJK & TSL which were cited with approval by the Full Court in Pascarl & Oxley, it was stated that in cases involving applications for differing types of relief, including applications for parenting orders, it may be appropriate to determine a stay application pursuant to the Court’s inherent power to grant a stay based on common law principles.

7. It is submitted on behalf of the husband that the wife’s Application seeks orders for property and spousal maintenance, child support and parenting matters and therefore involves applications for differing types of relief.

8. It is therefore submitted on behalf of the husband that the test applicable in determining the husband’s stay application is pursuant to common law principles, and on that basis, Australia is clearly the inappropriate forum to determine the applications before the Court.

9. There is no dispute that the wife’s application is seeking both financial and parenting orders. Because of the urgency surrounding the parenting issues arising from the husband’s imminent departure from Australia, it was agreed that the parenting matters would be heard separately to the financial matters.

10. Given that the parties’ assets are primarily located in the United States of America, the parties were advised at the commencement of the hearing that upon the determination of the parenting matters and stay application, the proceedings would be transferred to the Family Court of Australia (“The Family Court”)

11. Senior Counsel for the wife during her closing submissions was asked by me why it would not be appropriate for the Court to determine the stay application only as it related to the parenting matters and to otherwise leave the question of whether the remainder of the proceedings should be stayed to be determined by the Family Court.

12. It is the submission of Junior Counsel for the husband that the husband’s stay application cannot be split. It is argued that the wife has sought to invoke the Court’s jurisdiction on all the matters contained in her application and it is the totality of that application that the husband now seeks to stay. It is submitted that it is not open for the wife to invoke the jurisdiction of the Court on all matters and then “choose the bit that only related to child welfare matters” on the basis that by so doing it will enable this Court to be found to be the appropriate forum to hear the matter.

13. Whilst the husband has made application to stay the entirety of the wife’s application, I do not agree with the submissions of the husband’s Junior Counsel that this Court cannot deal with that application as it relates to the part of the application that it is hearing and otherwise enable the husband’s stay application to remain live in respect to those matters that have not been heard.

14. It is without doubt that the Court is able to determine the manner in which it will hear applications brought before it and, as has been the agreed approach in this matter, hear parenting matters separately to financial matters.

15. In this matter I am satisfied that it is appropriate that the husband’s stay application be considered in the context of the parenting matter only given that is the only matter being determined in this hearing.

16. The husband’s stay application in relation to financial and maintenance matters shall remain live is to be determined by the Family Court upon the transfer of this matter.

17. The wife is seeking orders for the parties to have equal shared parental responsibility for X and Y, for X and Y to live with her and spend time with the husband for half of school holidays and for the parties to sign all documents requested by the other to facilitate X and Y being able to remain in Australia. Orders in these terms are parenting orders as set out under section 64B of the Act. When determining what parenting orders are to be made, section 60CA of the Act requires the Court to consider the best interests of the child as the paramount consideration.

18. As stated by the Full Court in Pascarl & Oxley, where the application before the Court is made under provisions of the Act which prescribe the best interests test, then it is that test which will apply when determining the issue of forum.

Is it in the best interests of X and Y that this matter be determined in Australia?

1. The parties, X and Y are currently resident in Australia, albeit the husband will very shortly be resident in the United States of America.

2. Because of the manner in which this matter has proceeded, this Court has now heard all relevant evidence in relation to the parenting proceedings.

3. At this time this matter is before no other court in relation to parenting matters.

4. Both X and Y have expressed very clear views that they wish to remain in Australia to complete their secondary education as they are now very well settled here, have a strong friendship and social network and are progressing very well academically.

5. X and Y are understandably very trepidatious about the difficulties they will encounter in having to change to a new school, trying to establish new friendship groups and adjust to a completely difference education system and syllabus.

6. X and Y are concerned about their capacity to spend time with the husband with whom they have a close and loving relationship in the event they remain living in Australia.

7. The husband’s evidence is that because of his work commitments and the expense involved in X and Y travelling to the United States of America regularly, X and Y will only be able to spend limited time with him in the event they remain living in Australia.

1. It is the wife’s evidence that if X and Y do not remain in Australia, she will relocate with them to the United States of America. It would appear however if required to do so it is most likely she, X and Y would live in (city omitted).

2. In her vive voce evidence, the report writer Ms R indicated that the husband indicated that he would not “impose” (city omitted) on the wife and children. The husband told Ms R that even if the wife, X and Y were living in (city omitted) he would be able to see them more easily and cheaply and X and Y would have the opportunity to better access American or (country omitted) universities if living in the United States of America.

3. The capacity of the wife, X and Y to remain in Australia given that the sub-class 457 visa under which they are currently in the country will be cancelled as the parties are separated and the husband is permanently leaving Australia is a major issue in this matter.

4. It is argued on behalf of the husband that the question of whether the wife, X and Y can remain in Australia will be unknown for many months and that if the wife, X and Y are unsuccessful in obtaining visas to remain in Australia, the girls’ education faces serious disruption as they would be required to leave Australia and start school in the United States of America half way through their last 2 years of school. It is argued by the husband that an immediate return to the United States of America will provide certainty for X and Y’s future.

5. The question of the wife and children’s immigration status is indeed a serious matter. Having considered the evidence of the parties’ respective experts, I am satisfied that the wife, X and Y are eligible to and have a reasonable prospect of obtaining visas which will enable them to remain in Australia so that X and Y can complete their secondary education.

6. Ultimately the application by the wife and children for alternate visas to remain in Australia will be determined by the Department. If they are initially unsuccessful in their applications, the review and appeal process is such that the wife and children will be able to remain in Australia for a sufficient period of time to enable X and Y to complete VCE in Australia.

7. In all these circumstances I am satisfied that it is in the best interests of X and Y that this matter be heard in Australia and accordingly find that Australia is the appropriate forum to determine the wife’s application in relation to parenting matters.

8. If I am incorrect in my decision that it is appropriate that the determination of the husband’s stay application be confined to the wife’s application as to parenting matters only, I would note that, as is set out in Pascarl & Oxley, in cases where the Act does not prescribe a best interests component, the child’s best interests will often be a significant and weighty matter to be taken into account in determining the appropriate forum to determine the application before the court.

9. The husband argues that Australia is clearly the inappropriate forum to hear the wife’s application for a number of reasons.

10. The husband argues as the parties property is primarily situate in the United States of America the source documents as to those assets and the enforcement of any orders in relation to property matters will be in the United States of America.

11. The parties also have real estate in (country omitted) and it is the husband’s argument that his parents who he alleges have an interest in that property can more readily travel to the United States of America to give evidence that they could to Australia.

12. The assets in the United States of America consist of invested funds, shares and pension entitlements, all of which can be easily identified and values. As neither party proposes the proceedings be heard in (country omitted) a Court in the United States of America would still have to deal with those assets being outside the jurisdiction of that Court.

13. The husband also argues that he would have difficulty both financially and practically in instructing solicitors and attending Court in Australia.

14. The husband argues that his expenses if the wife and children live in Australia will be much greater than if they were to live in the United States of America. This is untested at this time.

15. The husband argues the uncertainty of the wife and children being able to obtain a visa to remain in Australia is also a very relevant matter when considering the question of the appropriate forum. The Court’s views on that issue in the context of the forum argument have been already set out in this judgment.

16. Whilst it is not the test, in my view the most compelling factor when determining whether Australia is the clearly inappropriate forum is the children’s best interests.

17. This matter must be determined as a matter of urgency given the husband’s imminent move to the United States of America. That is be heard in Australia has already been found by me to be in X and Y’s best interests.

18. Accordingly, even if I had determined the husband’s application that the whole of the wife’s application be stayed and therefore applied common law principles, the husband’s stay application would not have been successful.

19. I believe however that to determine the husband’s stay application in relation to the totality of the wife’s application would be unfair to the husband. Absent the parenting matters, it may well be another Court will be more persuaded by the husband’s application to stay proceedings in relation to financial matters.

Best Interests of the Children

1. Having determined that the wife’s parenting application is to be determined in Australia it will be done so in accordance with

   
   Family Law Act 1975 (“the Act”)

   .

2. Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):

   1.The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Best Interests of the Child

1. Section 60CA of the Act provides that:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

2. When determining what is in the best interests of the child, the court must consider the matters set out in Section 60CC(2) and

   
   

   Section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the Court, must be considered and assessed in the context of each of the party’s proposals. The Court should then make a decision as to which of the parties proposals, or such other arrangements as the Court determines given the Court is not bound by the parties proposals (see AMS v AIF (1999) 199 CLR 160, U & U 211 CLR 238), is in the children’s best interests.

1. Section 60CC(2) of the Act sets out the primary considerations that the Court must take into account when determining what is in the child’s best interests. They are as follows:

Section 60CC(2)(a) – The Benefit of the Child having a meaningful relationship with both of the child’s parents

1. X and Y have a close and loving relationship with both of the parties.

2. Both of the children have moved throughout the world as a result of the husband’s employment.

3. Because of this, the wife has been the homemaker and carer for the children in the various countries and locations where the parties have lived whilst the husband has pursued his career.

4. The husband’s roles have involved considerable travel. Whilst in Australia the husband has been required to travel internationally for at least 40% of the year. Because of this the wife really has assumed the majority of the responsibilities for the care of the children in the last five years.

5. In the event that X and Y remain in Australia their ability to spend face-to-face time with the husband will be limited because of issues of distance, the cost of travel and the husband’s availability to spend time with them due to his own work commitments in America and limited holiday time.

6. However, given X and Y’s age and the strength of their relationship with the husband, I am in no doubt that they will be able to maintain their meaningful and loving relationship with the husband through spending some limited face to face with him and by regular electronic communication, albeit this will not be the same as being able to see him regularly.

Section 60CC(2)(b) The need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence

1. This is not a factor relevant to this matter.

Section 60CC(3)

1. Section 60CC(3) of the Act sets out the additional considerations that the Court must look at when determining what is in the child’s best interests. Each of the matters set out under that section will be considered in turn were applicable in this matter.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

1. As has been clearly set out in this judgment, both X and Y have expressed very clear views that they wish to remain in Australia in order to complete their secondary education.

2. Both X and Y speak of now feeling settled in Australia and in their school. Both speak of having put in a great deal of effort to settle down in Australia and that neither wish to leave their friends or their school.

3. Whilst the husband acknowledges that X and Y have both expressed a strong wish to remain in Australia and to be able to complete their secondary education at their current school, it is his evidence that the children have moved many times during their lives and he described them as being “nomadic” and very flexible.

4. When cross examined as to why he was not prepared to accede to the wishes of X and Y to remain in Australia, he responded by saying that “we have wishes but we don’t always get what we wish for”.

5. Given X and Y’s age and maturity, considerable weight must be given to their expressed wishes.

Section 60CC(3)(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child).

1. As set out in this judgment, Y and X have a close and loving relationship with both of the parties.

2. They also have a very close relationship with their elder sister Z.

3. The parties’ eldest daughter Z is 18 years of age. She will be completing Year 12 at (omitted) Grammar School this year.

4. Z has not decided what she will be doing in the context of her tertiary education.

5. It is the parties’ evidence, which I accept, that at this point in time Z is keeping all her options open, including the possibility of pursuing tertiary education in Australia subject to her VCE results.

6. When speaking to Ms R for the purposes of the family report, Z indicated that her home is where her family is but with her parents’ separation, she feels that she doesn’t know where her home is anymore.

7. Z told Ms R that whatever happens, she would not want her younger sisters to leave Australia whilst she is living here.

Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.

1. It is apparent that up until the parties’ separation, the family was a close-knit unit and that the parents worked cooperatively in putting in place arrangements for their children, given in particular their somewhat nomadic lifestyle.

2. It would appear however that at the beginning of this year when the husband was offered the opportunity to take up a position in the

   
   

   United States of America, he accepted that offer without any consultation with the wife or with his teenage daughters.

3. The husband returned to Australia to find that his wife had made a decision to end their marriage and that his teenage daughters were not as enthusiastic about the return to America as he thought they would be. After consideration X and Y have strongly expressed a desire to remain in Australia to complete their secondary education.

4. Whilst it is the husband’s evidence that the wife and his daughters were fully aware that there was a pending move to America in 2014, it is apparent from the comments made by X and Y to Ms R that the husband’s decision to accept a position in America was a shock to them. They were upset that he had made that decision because of the disruption it would cause them and because they wish to complete their secondary education in Australia.

5. As was noted by Ms R in her family report, it was unwise of the husband not to have considered the children’s ages and their changing needs and discussed his transfer with the family before accepting the offer.

Section 60CC(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.

1. Both parties fulfil their obligations to maintain X and Y appropriately.

2. The question of the husband’s ongoing support for X and Y upon his relocation to the United States of America will be a matter for determination by the Family Court upon the transfer of this matter.

3. The Court notes the husband’s evidence that he will comply with all orders in relation to the payment of maintenance and school fees.

Section 60CC(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

Section 60CC(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.

1. If the wife, X and Y remain in Australia, the capacity of X and Y to spend regular face-to-face time with the husband upon his relocation to America is going to be considerably restricted because of geographical and financial constraints.

2. Whilst the husband seems somewhat reluctant to commit to set arrangements that would enable X and Y to spend regular time with him because of the practical and financial difficulties, it would be hoped that when these matters are resolved he will be more amenable to maximising all possible time he can spend with X and Y.

3. It is the husband’s evidence that his annual salary including bonuses in America will be US$285,000.00. Given the extensive international travel the husband is required to undertake with his employment, he must have accumulated considerable frequent flyer points. In these circumstances I am satisfied the husband has the financial capacity to spend regular face to face time with X and Y.

1. It is the husband’s proposal that X and Y move with him to (city omitted) in (city omitted) when he assumes his position on

   
   

   1 October 2014 so that they can start Year 11 in school in America. This would be enable them to start school in America as close as possible to the beginning of the American school year.

2. It is the husband’s evidence that if X and Y live with him in (city omitted), he will be able to adequately care for them. When required to travel overseas for the purposes of his employment for up to 10 weeks in each year, it is the husband’s evidence that his parents or sisters will fly from (country omitted) to look after X and Y in his absence.

3. It is the husband’s evidence that his new position will involve greater responsibilities than that which he held in Australia. It must be assumed that this will be a fulfilling but demanding and time consuming position for the husband. In those circumstances, the ability of the husband readily available to provide day to day care for X and Y must be questioned, particularly whilst they are trying to adjust to their new school and the husband is adjusting to his new position.

4. As noted by Ms R in her family report, it is the mother who has been the primary carer for X and Y and that whilst the husband is able to provide care and supervision, he is in full time employment and despite his best efforts, his full time presence and care is not as possible as it is with the wife.

Section 60CC(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

1. There is no doubt that the parties in these proceedings have and will continue to provide for the emotional and intellectual needs of X and Y.

Section 60CC(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant.

1. As noted, the parties, Z, Y and X have joint (country omitted) and American citizenship and because of the husband’s career are somewhat ‘citizens of the world’ having lived in (country omitted), America and Australia during the parties’ 19 year marriage

2. Because of this, X and Y have needed to be flexible in being able to adjust to changes of school, the need to form new friendship groups and being separated from extended family.

3. X and Y are now 16 years of age and are mature and intelligent young women.

4. They have been living in Australia for the last five years and in that time have been able to form strong friendship groups and peer relationships and are expressing an understandable desire to be able to remain within their school and friendship group in order to complete their secondary education.

5. Whilst they would perhaps have been more willing to accept the decisions to relocate made by their parents when they were younger, they are now of an age where their opinions and requirements must be given greater weight in relation to decisions about their future.

Section 60CC(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.

1. The parties in this matter have always fulfilled their responsibilities as parents.

Section 60CC(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. Once this matter is resolved, I am satisfied that in relation to parenting matters, there will be no need for any further litigation.

Section 60CC(m) any other fact or circumstance that the Court thinks is relevant.

1. As has been set out in considerable detail in this judgment, a major factor in this matter is the capacity of the wife, X and Y to remain in Australia as the subclass 457 visa under which they are currently entitled to be in Australia will be cancelled as a result of the parties’ separation and because the husband who was the primary applicant under that visa is permanently leaving Australia.

2. Both parties filed detailed affidavits from very experienced and competent immigration lawyers. Both parties’ experts were in agreement that X and Y could make applications for student visas to enable them to complete their secondary education and that the wife could apply for a student guardian visa to allow her to continue to live in Australia to care for X and Y whilst they were completing their education.

3. Both parties’ experts were also in agreement that if the wife were to enrol in a vocational education course, she would be entitled to make application for a student visa in her own right and that X and Y would be entitled to continue their education as secondary visa holders, dependant on the wife’s student visa.

4. Where the parties’ experts differed is their view as to the likelihood of such applications being successful. It is the husband’s expert’s view that the wife is likely to be unsuccessful in relation to any application for a student visa made by her and the wife’s expert is of the view that the wife is likely to be successful in such an application.

5. The parties’ experts were in agreement however that in order for the wife to be successful in obtaining alternative visas to remain in Australia, she and the children will have to satisfy the Department that they meet the Department’s Regulations in relation to the “genuine temporary entrant” requirements and the “financial” requirements.

1. It is the evidence of Ms K, the husband’s expert, that because the wife and children’s subclass 457 visas have been cancelled, the Department will be concerned that the only basis upon which the wife is making an application for a student visa is to avoid having to leave the country and not because she has a genuine desire to study. This is particularly so given the wife has no history of recent employment or study.

2. It was the evidence of the wife’s expert, Mr V that in circumstances where the wife had recently separated from the husband who had always financially supported her during their marriage, it was more than reasonable that the wife would now have to undertake vocational training in order to be able to obtain the necessary qualifications to support herself.

3. At this time, the wife has not been served with a Notice of Intention to Consider Cancellation of she and the children’s current subclass 457 visas. It is the evidence of the experts that it can take the Department several months to act to cancel visas when they have been advised that the criterion is no longer met. As the husband’s employer notified the Department in June 2014 that the husband and the wife had separated it is not unrealistic to expect that a Notice of Intention to Consider Cancellation will be forthcoming in the not too distant future.

4. It is the experts’ evidence that upon receipt of Notice of Intention to Consider Cancellation the wife has 14 days in which to seek a review of that decision and to ensure that she has made application for alternative visas.

5. It is the evidence of the experts that it will take approximately 3 months for the Department to make a decision in relation to any application for student visas made by the wife and children and that whilst those applications are being processed, the Department will take no action in relation to the Notice of Intention to Consider Cancellation of the wife and the children’s current subclass 457.

1. In the event that the wife was unsuccessful in her application for alternate visas, she would be able to seek a review of that decision by the Migration Review Tribunal, and if unsuccessful before the Tribunal, she can then seek that the tribunal’s decision be reviewed by the Federal Circuit Court and if unsuccessful in that Court she could then seek an appeal of that decision to the Full Court of the Federal Court. That review and appeal process, with current tribunal and court delays, could take anywhere from 2 to 3 years. Whilst that process is underway, the wife and the children will be given a bridging visa which will enable them to remain in Australia.

2. In these circumstances, I am satisfied that the wife and the children have a reasonable prospect of obtaining alternate visas that will enable them to remain in Australia albeit I openly acknowledge that that will be a decision for the appropriate Department. However, whatever the outcome is of their initial application, I am satisfied that it will be possible for the wife and children to remain in Australia until such time as X and Y complete their secondary education in 2016.

3. It was put to Ms R by Counsel for the husband that it would not be in X and Y’s best interests to remain in Australia if there was a real risk that they would have to leave Australia before the completion of their secondary education because of the impact that would have on them being able to satisfactorily complete their secondary education in America if they were required to move to the United States of America somewhere half way through Year 11 or Year 12.

4. Ms R, quite understandably, agreed with this proposition.

5. However, in light of the findings made by me in relation to the capacity of the wife, X and Y to remain in Australia for the completion of X and Y’s secondary education, I am of the view that the risk flagged by Counsel for the husband in that X and Y’s education will be interrupted during the next two years is limited.

1. The husband is concerned about the financial implications of X and Y remaining in Australia to complete their secondary education. Because they will be international students, the annual school fees at (omitted) Grammar School will be greater than those which have been payable to date while the children have been living in Australia under the subclass 457 visa.

2. If the wife, X and Y remain in Australia on the basis of X and Y obtaining visas to complete their secondary education, the wife as the holder of a student guardian visa is not able to work in Australia and would be reliant on the husband for spousal support.

3. If the wife was successful in obtaining a student visa in her own right, she would be able to work up to 40 hours each fortnight.

4. The wife currently has a spousal maintenance application before this court and that will be determined by the Family Court.

5. It is also the wife’s evidence that the parties have assets well in excess of $1,000,000.00 and that she will be able to utilise some of these funds for her support whilst she is resident in Australia.

Conclusion

1. This matter relates to the wife’s application for parenting orders in relation to the parties’ twin daughters X and Y, aged 16.

2. The parties have been living in Australia for the last five years as a result of the husband’s employment.

3. In February 2014, the wife made the decision to end the parties’ 19 year marriage, and at the same time, the husband made a decision to accept a promotion with his employer which required a relocation to (city omitted) in (city omitted) from 1 October 2014.

4. The wife wishes to remain in Australia with X and Y to enable them to complete their secondary education at (omitted) Grammar School. X and Y express strong wishes to be able to do this.

1. The parties’ eldest daughter, Z, who is aged 18, will be completing VCE this year at (omitted) Grammar School and there is no issue that she will remain in Australia to complete her VCE. Z has not decided whether she will attend university in Australia or overseas.

2. The parties were able to live in Australia pursuant to a subclass 457 visa which related to the husband’s employment in Australia.

3. With the parties’ separation and with the husband permanently leaving Australia, his visa will be cancelled as will the visas of the wife, X and Y.

4. In order for the wife and the children to remain in Australia, they will need to be successful in obtaining alternate visas. It is accepted that there are options available to the wife and children either by way of X and Y obtaining visas to complete their secondary education and the wife receiving a student guardian visa, or by the wife enrolling in a course of vocational training and obtaining a student visa in her own right, under which X and Y could remain as they are the wife’s dependants.

1. The wife has made application in this court for property, maintenance, child support and parenting issues.

2. The husband responded to the wife’s application by seeking orders that the Court permanently stay the wife’s application on the basis that the

   
   

   Federal Circuit Court of Australia or other court exercising jurisdiction conferred by the Family Law Act1975 (Cth) is the clearly inappropriate forum to determine that application.

3. The husband’s application to stay the wife’s application in as much as it relates to parenting issues has been unsuccessful.

4. Accordingly, the question of whether X and Y remain in Australia with the wife or return to (city omitted), (city omitted) with the husband, falls for determination by this Court in accordance with the provisions of the Family Law Act1975 (Cth).

1. X and Y have both expressed a clear wish to be able to remain in Australia to complete their secondary education. Both girls explained to the report write, Ms R that they have finally settled into their new school, that they have formed strong friendship groups and that now is not the right time for them to return to the United States of America. They genuinely want to finish VCE in Australia.

2. In her family report, Ms R is very clear that it is her opinion that X and Y’s needs will be better met if they remain in Melbourne and at their current school to complete their education. She notes that they have commenced one VCE subject this year which they are keen to finish at Year 12 level next year.

3. Ms R also notes that as X and Y rely on their mother, who has been their primary and full time carer since birth, for their care and support they will both benefit from her presence and care in the next two years whilst they study and complete their VCE.

4. It is Ms R’s evidence that X and Y are not psychologically ready to relocate and that they would experience stress and distress if they had to separate from their mother, school, friends and community in order to move to America by the end of September 2014.

5. In circumstances where I am satisfied that the wife, X and Y will be able to stay in Australia until X and Y complete their secondary education, even if they have to traverse the review and appeal processes relevant to their visa status, I am of the view that their wishes should be give considerable weight in determining whether they should be able to remain in Australia.

6. I am therefore of the view that it is in X and Y’s best interests that they be permitted to remain in Australia with the wife.

7. In the wife’s application she seeks orders for the parties to have equal shared parental responsibility, for X and Y to live with her, for them to spend time with the husband during the Australian school holidays and for the parties to sign all documents to facilitate the requisite applications and processes to enable the wife, X and Y to remain in Australia.

8. As the husband’s application was for the wife’s application to be stayed permanently, there was no material from him before the Court that directly addressed the minutiae of the mother’s application.

9. It is apparent to me that an order for equal shared parental responsibility is appropriate given the very positive relationship that X and Y have with both of their parents and the parties’ ability to agree on the arrangements for their children until recent times.

10. While an order for equal shared parental responsibility requires the court to consider X and Y spending equal or significant and substantial time with the husband, given that he is going to be located in (city omitted) and, if remaining in Australia X and Y will live in Melbourne, orders in those terms would not be practical.

11. Accordingly, orders will be made for the parties to have equal shared parental responsibility for X and Y, for X and Y to live with the wife and for them to spend time with the husband as agreed between the parties and, if possible, for half of the Australia school holidays.

12. An order will also be made that the parties sign all documents and do all things as soon as practicable upon being so requested by the other party to facilitate X and Y’s continuing residency in Australia.

13. As has been set out in this judgment, the wife’s application for financial and maintenance orders will be transferred to the Family Court of Australia for determination given the international aspect of those applications.

14. As also set out in this judgment, the husband’s application for a permanent stay of the wife’s applications for property, spousal and child maintenance orders remains live and he will be able to pursue that application in the Family Court of Australia.

15. When this matter was before me on 2 June 2014, I made an interim Watch List order in relation to X and Y. Given my determination, it is appropriate that order now be dismissed.

1. On 2 June 2014, orders were also made for the husband to pay interim spousal maintenance to the wife and to also pay child support pending the determination of the review by the Child Support Agency of the child support payable by the husband to the wife for X and Y. An interim order was also made for the husband to maintain family health insurance at the current level.

2. Neither party sought that those interim orders be dismissed, and as such they shall remain in force.

3. The wife’s Counsel made an oral application that this Court make an interim order that the husband pay the (omitted) Grammar School fees for X and Y. In circumstances where all outstanding financial and maintenance matters have been transferred to the Family Court of Australia, it is not appropriate for that application to be dealt with by me and it will be a matter for determination by the Family Court of Australia.

I certify that the preceding two hundred and thirty-eight (238) paragraphs are a true copy of the reasons for judgment of Judge Bender

Associate: 

Date:  22 September 2014