Haynes & Graf

[2021] FamCA 119

FAMILY COURT OF AUSTRALIA

Haynes & Graf [2021] FamCA 119  

File number(s):

CAC 1657 of 2020

Judgment of:

GILL J

Date of judgment:

11 March 2021

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE –
Orders for disclosure

Legislation:

Family Law Act 1975 (Cth) s 121

Family Law Rules 2004 (Cth) r 13.22

Number of paragraphs:

11

Date of hearing:

11 March 2021

Place:

Canberra

Solicitor for the Applicant:

Johannessen Legal & Migration

Solicitor for the Respondent:

Parker Coles Curtis

Solicitor for the Independent Children's Lawyer:

Legal Aid, ACT

ORDERS

CAC 1657 of 2020

BETWEEN:

MS HAYNES

Applicant

AND:

MR GRAF

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	GILL J
DATE OF ORDER:	11 MARCH 2021

IT IS ORDERED, UNTIL FURTHER ORDER THAT:

1.The Court NOTES:

(a)That the Mother remains resident in the United States of America.

(b)That the Father’s Application for a subclass 802 Visa for a permanent residency Visa for X has not yet been determined by the Department of Home Affairs (‘DHA’) and remains pending.

(c)That the Mother’s application for a Subclass 190 Visa for a permanent residency visa for the mother and child has not yet been determined by the DHA and remains pending.

2.That within seven days from the date of these Orders, the mother shall serve upon the father a copy of the following documents by way of disclosure:

(a)Written confirmation from the mother that the following information has been provided to the DHA by the mother or on the Mother’s behalf:

(i)The Mother’s contact telephone number/s in the United States of America, including an alternate number to +1 … as requested by the DHA. 

(ii)A specific time when the DHA is able to make direct contact with the mother.

(iii)Any other document that confirms that the mother has done all such acts and things as have been necessary to progress the father’s Application for a subclass 802 Visa for a permanent residency Visa for X, as required by Order 7 of the Orders made by this Honourable Court on 10 November 2020.

(b)All correspondence that the mother has received (or has been received on her behalf) from the DHA confirming that the Mother’s application for permanent residency has been “cleared on all aspects, except an updated medical exam and the updated Form 1229 – Consent of both parents.”

3.That the Father be permitted to provide the Department of Home Affairs a copy of these Orders and the Orders made by this Honourable Court on 10 November 2020.

4.That these proceedings be adjourned until a date following the determination of either:

(a)the Mother’s application for a subclass 190 Visa for the mother and child; or

(b)the Father’s application for a subclass 802 Visa for a permanent residency Visa for the child, whichever is the earlier.

5.That to facilitate Order 4:

(a)Each party shall keep the other fully informed of any change in the status of their respective Visa application within 24 hours of such change.

(b)That the parties have liberty to relist this matter upon the giving of seven days’ notice in writing to the other parties.

IT IS FURTHER ORDERED THAT

6.The matter is transferred to the Registrar's list pending steps taken pursuant to orders 4 and 5.

7.The father's costs of today are reserved.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Haynes & Graf has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

GILL J

1. This matter was listed for directions today to progress the matter towards trial in a context where the trial and preparation for the trial are necessarily delayed by uncertainties in relation to the securing of visas by the mother and by X. 

2. On the last occasion the parties arrived at consent orders to progress the obtaining of visas, each party having embarked upon a parallel process of seeking visas for X.  As the matter comes before the Court today it comes in the continuing context of the mother not having a visa and X not having a visa, although it appears processes are on foot before the Department of Home Affairs to secure the relevant visas. 

3. The father has provided a Minute of Orders Sought today that he pursues orally.  Marked as exhibit C1 is a copy of those Minute of Orders Sought.

4. The mother's position is that she consents to the notation appearing at 1 and consents to the orders at 4 and 5.  The mother does not consent to orders set out at 2 and 3 but has helpfully addressed the Court as to the underlying circumstances surrounding what is set out at 2 and 3.  The mother concedes that orders 2 and 3 impose no heavy burden upon her but questions the need for such orders to be made. 

5. The oral pursuit of those orders occurs in a context where there is no contest between the parties, but that it is necessary that visas be obtained.  There is also no contest that the visas have not been obtained for the mother and for X.

6. There is a contest as to the degree of cooperation that has been given by the mother to the process and also a contest as to the necessity for her to cooperate in the process.

7. Orders 2 and 3 relate to either the provision of information to Home Affairs in the form of a copy of the Court's orders, or disclosure by the mother of documents evidencing her dealings with Home Affairs as a consequence of the orders that have previously been made by consent for the obtaining of visas.  Neither order places a burden on a party other than a burden which is already placed on the parties under the Rules in relation to requirements for disclosure and provision of documents under the Rules.  One point of resistance by the mother is the concern that not only are the orders unnecessary given the requirements under the Rules and correspondence having only recently been received by the mother in respect of the provision of the material set out in proposed order 2 but also a concern that the making of the order would promote uncertainty as to the obligations that would attach.

8. There is a requirement under the Rules that the Court is to resolve as many matters on a single attendance as possible.  It would be highly undesirable for the parties to be brought back before the Court should these issues of disclosure not be resolved between them, for the Court to impose orders on another occasion, or the Court to then grant leave for the issue of a subpoena to the Department as is sought as an alternative on behalf of the father.

9. It may be observed that the issue concerning X and the mother's visas continues to be surrounded by contention.  It may be observed that it is imperative that visas be obtained and, where a visa has not been obtained that the Court be able to be appraised of whether the appropriate steps have been taken and the parties be able to be satisfied that the appropriate steps have been taken such that if there is an impediment to the obtaining of the visa, that impediment may be identified and remedied either by the parties or, to the extent that it is necessary to do so, by the Court.

10. Under those circumstances, and in the interests of preventing further costs being accrued in the case, it is appropriate that order 2 as sought be made. It is not strictly necessary that an order be made in terms of order 3 as there does not appear to be a particular impediment to the provision of orders made by this Court to the Department of Home Affairs. Such provision would not be in conflict with the obligations set out at s 121 of the Act in respect of non-publication. However, again, for the purpose of giving certainty in these proceedings that permission will be given as it is on the cards that the orders made by this Court and the processes of this Court may be relevant to the processes of obtaining a visa.

11. Accordingly, I make notations and orders in accordance with exhibit C1.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       11 March 2021