HERRADA VALERA & SLATER

[2016] FamCA 645

FAMILY COURT OF AUSTRALIA

HERRADA VALERA & SLATER [2016] FamCA 645

FAMILY LAW – CHILDREN – Interim parenting – Best interests – Where there are four children – Where the parents and the children do not have residence status in Australia – Where the father’s visa application is sponsored by his employer – Where the mother’s residency status in Australia remains uncertain – Where the father seeks orders that he be authorised to sign documents on behalf of the mother seeking resident status for children – Where the mother seeks an order allowing her to take the children on an overseas holiday – Where the substantive proceedings involve an  application by the mother for overseas relocation – Where there is a risk that the mother would not return to Australia – Where the mother does not have the funds to put up a bond – Where the mother’s application to travel overseas with the children is dismissed – Orders made authorising the father to sign documents to enable the children to obtain permanent residence visas – Order made for the preparation of a family report.
Family Law Act 1975 (Cth)
MOTHER:	Ms Herrada Valera
FATHER:	Mr Slater

INDEPENDENT CHILDREN’S LAWYER: Ms Maitland

FILE NUMBER: SYC 1373 of 2014

DATE DELIVERED: 23 June 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 23 June 2016

REPRESENTATION

SOLICITOR FOR THE MOTHER: Ms Quinn

SOLICITOR FOR THE FATHER: Ms Hunter

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Maitland

Orders

1. Orders are made in accordance with the document titled “Applicant’s Proposed Orders” (Exhibit A dated 23 June 2016) as amended and, noting the Independent Children’s Lawyer does not oppose the orders, as set out hereunder:

   1.      The father is authorised to sign all documents and do all things necessary on behalf of the mother to enable the children:

   i.B born … 2004;

   ii.C born … 2006;

   iii.D born … 2007; and

   iv.E born … 2009

   (“the children”) to:

   (a)Have their medical examinations for their Australian permanent visa applications; and

   (b)Be granted their permanent residence visas by the Department of Immigration and Border Protection (“the Department”).

   2.      The father is authorised to uplift and take possession of the Childrens’ passports from the Commonwealth Bank Suburb F Branch, without the consent of the mother, to enable the Children to:

   (a)Have their medical examinations for their Australian permanent visa applications;

   (b)Be granted their permanent residence visas by the Department; and

   (c)Apply for and obtain Medicare.

   The father is to thereafter return the passports to the Commonwealth Bank for safekeeping as agreed between the parties.

   3.      The father sign all documents and do all things reasonably necessary to sponsor the mother for an Australian parent visa on behalf of the eldest child B.

2. IT IS NOTED that the above orders are made on a defended basis against the mother.

IT IS FURTHER ORDERED THAT:

1. By consent, and pending further order, orders are made in accordance with the document titled “Minute of Order” (Exhibit B dated 23 June 2016) signed by the parties and set out hereunder:

   1.    That the parents have equal shared parental responsibility for the children:

   B born … 2004;

   C born … 2006;

   D born … 2007; and

   E born … 2009

2. In relation to any costs incurred in respect of the mother’s application for an Australian parent visa that arise within nine months from todays’ date or such further time as the parties agree in writing, are to be met in the first instance by the father.

3. IT IS NOTED that the father consents to the making of an order in terms of Order 4 above.

IT IS FURTHER ORDERED THAT:

1. All Applications in a Case and Responses on behalf of each of the parents are dismissed.

2. Leave is granted to the Independent Children’s Lawyer to seek the issue of such subpoenas as she may be advised.

3. Orders are made in accordance with the document titled “Proposed Order” (Exhibit C, dated 23 June 2016) as amended and set out hereunder:

   1.    The mother is not to contact by any means whatsoever the father’s employer G Pty Ltd (or any person employed by that company) or any person or entity associated with that employer including but not limited to the company H Pty Ltd whether in Australia or overseas, save that the solicitor for the mother may respond to any communication received after todays’ date from the father’s employer or solicitors engaged by that employer and may respond in relation to any process that is issued by the father’s employer in civil or other proceedings instituted or to be instituted by that employer.

   2.    The mother is not to contact by any means whatsoever the father’s case officer at the Department of Immigration and Border Protection or other person at the Department, or forward any emails to any Departmental email address regarding the father’s permanent residence visa application without the prior written consent of the solicitor for the father.

   3.    By consent, the mother is not to forward any information of any kind whatsoever, via any means (including via email) relating to the Family Law proceedings and/or the father and children’s permanent residence applications, to any person whatsoever except her legal representative and her personal Department of Immigration case officer (in regard to her own visa issues).

4. That pursuant to s 62G of the Family Law Act 1975 (Cth) a Family Consultant of this Registry shall prepare a family report for the assistance of the Court. The Family Consultant shall address the matters contained in s 60CC of the Family Law Act 1975 (Cth) in respect of the children:

   i.       B born … 2004;

   ii.       C born … 2006;

   iii.      D born … 2007; and

   iv.      E born … 2009

   and any other matters the Family Consultant considers appropriate and particularly important, noting the possibility that the proceedings involve a proposal for the relocation of the mother with the children to the USA:

   (a)any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children's views;

   (b) the nature of the relationship of the children with:

   (i)    each of the children's parents; and

   (ii)     other persons (including any grandparent or other relative of the children);

   (c) the extent to which each of the children'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 children; and

   (ii)     to spend time with the children; and

   (iii)     to communicate with the children;

   (ca) the extent to which each of the children's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the children;

   (d) the likely effect of any changes in the children's circumstances, including the likely effect on the children 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 children), with whom they have been living;

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

   (f) the capacity of:

   (i)      each of the children's parents; and

   (ii)     any other person (including any grandparent or other relative of the children);

   to provide for the needs of the children, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children's parents, and any other characteristics of the children that the court thinks are relevant;

   (h)if the children are Aboriginal children or Torres Strait Islander children:

   (i)      the children's right to enjoy their Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)     the likely impact any proposed parenting order under this Part will have on that right;

   (i) the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents;

   (j) any family violence involving the children or a member of the children's family;

   (k) if a family violence order applies, or has applied, to the children or a member of the children's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)      the nature of the order;

   (ii)     the circumstances in which the order was made;

   (iii)     any evidence admitted in proceedings for the order;

   (iv)    any findings made by the court in, or in proceedings for, the order;

   (v)     any other relevant matter;

   (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 children;

   (m) any other fact or circumstance that the court thinks is relevant.

5. That the parties shall attend all appointments nominated by the Family Consultant and ensure that the children attend all appointments as notified by the Family Consultant.

6. That leave is granted to the Family Consultant to inspect any subpoena material where leave has been granted previously for the parties to inspect.

7. The mother make arrangements for a treating practitioners report from her treating psychiatrist and that a copy of that report be provided to the manager of CDS for the purposes of the family report writer and to each other party to the proceedings. That report is to be provided within 6 months from todays’ date.

8. The proceedings be restored to the list not later than 7 days after the release of the report on the application by the Independent Children’s Lawyer.

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

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 1373 of 2014

Ms Herrada Valera

Mother

And

Mr Slater

Father

REASONS FOR JUDGMENT

1. This matter has been before the Court on a number of occasions.  It has proved resistant to the normal blandishments of pressure of cost and delay.  There are substantive parenting proceedings in relation to the parties’ four children.  The complication is that the parties and the children do not have a right to remain in Australia indefinitely.  That is important on the father’s case because he would like the children to remain in Australia.  The mother’s case has changed from time to time.  I have understood her case to be that in the event that she could remain in Australia, she was open to the idea of living here with the children.  I understood even today that in the event that the court ordered that the children were to remain in Australia, if she was able to remain, it would be her decision to remain with the children.  That is an understandable position.

2. In the context of those proceedings, there have been a number of interlocutory issues.  The issue that was put over for hearing today from a list on 3 June arose from an application that the father be authorised to sign documents on behalf of the mother, seeking residence status for the parties’ children.  The mother formally opposed that but, to be fair to her, expert evidence was given by a single expert and there was some ambiguity about that evidence.  A further email was sent to the single expert and that evidence was provided by an email which became exhibit 2 on the last occasion.  The mother wanted time to address those issues and consider them and I granted an adjournment until today.

3. It transpired that the mother’s concerns were fundamentally that there was no need to take this step at this stage, that she did not see any urgency in pressing the children’s application and, secondly, that she felt that if she was seen to consent to the father’s application, that would send a signal to the Department of Immigration (“the Department”) or elsewhere which might leave her disadvantaged in relation to her claims in relation to residence and perhaps, these proceedings.  She was concerned about the impression that it might leave on the Department as to whether she retained any parental responsibility in relation to the children.

4. The parties have had some discussions and Ms Maitland and the parties have worked out a formula of words in relation to the parties, on an interim basis, having equal shared parental responsibility.  Any interference in parental responsibility in relation to one issue, means that equal shared responsibility is no longer available.  In other words, there is not an equal sharing if one party has greater responsibility in respect of a long-term issue. 

5. We have had a brief discussion about that today, certainly Ms Maitland and I, and there is a possibility that this issue about signing a document to obtain resident status is not an issue that goes to a major long-term issue.  The major long-term issues that are spoken about in the legislation are education and religion and health issues.  This particular issue is not determinative at all of where the Court might ultimately order or whether parties might ultimately agree the children are to live.  In a sense this issue is facilitative just as –the preliminary work towards a christening or induction under the rights of a particular religion is facilitative. 

6. I am quite attracted to that.  The other possibility is that it does not offend the definition or the meaning and I say meaning rather than definition because the legislature decided to define parental responsibility – shared parental responsibility, but not equal shared parental responsibility.  This seems to be virgin territory for pedantic lawyers to agitate over.  The other possibility is if the Court interferes in the way that is being suggested the Court is merely taking a machinery step. 

7. On that basis, I do not think the terms of the orders proposed by the father are inconsistent with the order the parties have agreed to about parental responsibility.  Now that I understand the mother’s case, it is a bit easier to address.  The concern I had with her opposition was that there was a hint of her wanting something not to be done that would facilitate the father’s case.  Her taking steps to block the children being able to remain in Australia might be seen as interfering with the case he wants to argue.  The Court would normally try and avoid that happening.

8. As to urgency, we have evidence that the father’s employer is merging with another company.  I accept that, under a regime whereby people are sponsored for residence by an employer, it could or is likely to make a meaningful change to that process if the employer changes.  It is suggested that this is somehow a contrivance or unnecessary.  I do not accept that.  There is no suggestion that the father owns either of the companies involved.  I doubt that two companies are manipulating their processes just for the purpose of interfering with one litigant’s case in a civil court about parenting arrangements. 

9. There is objective evidence that there is a merger underway.  Mr Poinder suggested these issues need to be dealt with in the short term.  The period for the merger is set for our winter, or the summer in the northern hemisphere.  Something has to happen quickly and there is evidence that if the process has to start again (based on a new employer) additional fees will be payable.  The background evidence of the case suggests that the parties are not flush with funds and cannot afford to waste money in that way.  I am going to make the orders that have been proposed on behalf of the father.  I am going to impose those orders.  They are not made with the consent of the mother and, in fact, they are made over her objections. 

10. Related issues that have been raised by the mother.  One of them is addressed in the father’s proposal and that relates to him taking steps and doing things to sponsor her residence status and he has agreed in similar terms to do all things reasonably necessary to sponsor her and will consent to an order that he will meet in the first instance any fees payable in respect of the mother’s residence application that fall due within nine months from today’s date.  The submission was that there was a more fulsome agreement with no evidence tendered to me about the actual agreement the parties reached. 

11. I think the argument would be, on behalf of the father, that there was an agreement that while he might outlay moneys, he would be expecting that there be a contribution from any ultimate property settlement the mother received in the proceedings.  As I say, I do not have the evidence about that and I cannot rule on it, but it seems to me that the order the father will consent to is likely to take the parties up until we can get them ready for a final trial and, if not, the parties will be free to bring the matter back to clarify that issue.

12. Next, the mother would like to take the children on a two week holiday to visit her relatives.  There is some evidence in relation to that but not as to the reason for the trip.  The father’s initial reaction is one of concern.  He is concerned about the risk that the mother would not return to Australia, and it is very obvious in a case where her ultimate application is for relocation, there must be a risk of that and it is difficult to see how that could be addressed.  Normally, we would address that risk by relying on the Hague Convention.  In Australia the central authority takes action on behalf of the left at home parent.  That would not be the case in America.

13. There would be costs associated with the father’s application.  He would have to take proceedings in America under the Convention and he would not get much help from the Central Authority.  Action is likely to be reasonably timely and one would expect that the children would be returned but that would not be without cost.  Another way of addressing these concerns would be by the moving party putting up a bond.  No bond is offered by the mother.  On her case, she does not have the wherewithal to do so.  For those reasons, the father opposes the application.  There is no evidence as to urgency.  In the absence of the mother being able to satisfy the court about those issues, I am not prepared to make that order today.

14. Next, the mother seeks an order to the effect that if she does not obtain residence status, that the mother and children be permitted to live in America.  That is part of the mother’s ultimate case.  It is not one that could or should be dealt with on an interim basis.  It will be difficult to deal with on a final basis because, like most countries, Australia has provisions and protocols not to send out of the country people who are involved in relevant categories of litigation.  And there is some expert evidence about that in these proceedings.

15. Finally, the mother seeks that all of these problems be handed over to a single appointed expert.  Unfortunately for the parties, I think the constitution and the legislation provide that the decisions are for a judge.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 23 June 2016.

Associate:

Date:  10 August 2016