IKAGA & IKAGA

[2015] FamCA 817

FAMILY COURT OF AUSTRALIA

IKAGA & IKAGA [2015] FamCA 817

FAMILY LAW – PRACTICE & PROCEDURE – where the mother seeks the father sign a form of the Department of Immigration and Border Protection – where that form consents to the child being granted an Australian visa – where orders made requiring father to complete the form.

APPLICANT: Ms Ikaga

RESPONDENT: Mr Ikaga

FILE NUMBER: BRC 5245 of 2014

DATE DELIVERED: 21 September 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 21 September 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Brierley, New Way Lawyers

SOLICITOR FOR THE RESPONDENT: Ms Miranda, Michael Lynch Lawyers (withdrew)

RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. The Respondent’s legal representatives, Michael Lynch Family Lawyers, have leave to withdraw as solicitors on the record.

2. The Applicant or her solicitor deliver a completed Department of Immigration and Citizenship Form 1229 relating to the grant of an Australian visa to the child,  B born … 2011, to the Respondent within seven (7) days from today’s date.

3. The Respondent execute the said document (the Department of Immigration and Citizenship Form 1229) at Section 3 as the Respondent, giving his consent to the granting of the Australian visa to the child and email and post the completed form to the Applicant’s solicitor no later than fourteen (14) days from the date of these Orders.

4. Failing the Respondent returning the original form signed by him to the Applicant’s solicitor within fourteen (14) days of the date of these Orders, and upon the filing by the Applicant or her solicitor of an affidavit annexing to it a copy of the correspondence to the Respondent as required by Order 1 hereof and her swearing to the failure of the Respondent to return to her a signed copy of the application as required by Order 2 hereof, pursuant to s106A of the Family Law Act 1975 (Cth), a Registrar of the Family Court of Australia, urgently execute the document on the basis that the Respondent has refused or neglected to comply with these Orders and, the Court considers it necessary to exercise the powers of the Court under s 106A.

5. The Respondent pay the Applicant's costs of and incidental to the Application in a Case filed 29 July 2015 in such amount as may be agreed between the parties or failing agreement as assessed.

NOTATION

A.The document executed by a Registrar of the Family Court of Australia appointed under this Order has the same force and validity as if the document had been executed by the father.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5245 of 2014

Ms Ikaga

Applicant

And

Mr Ikaga

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. B was born in 2011 in Australia. 

2. His mother is a citizen of the United States of America.  His father has permanent residency in that country and is a citizen of Country C.

3. The parties commenced a relationship in late 2008/early 2009 and married in 2009 in the United States of America.  They relocated to Australia in June 2010, bringing with them the mother’s two children from a previous relationship.

4. It appears on the material (albeit that this is, of course, an interim application) that the parties travelled to Australia to facilitate further study at university here.

5. The mother’s evidence is clear: she indicates that the move to Australia was intended by both parties at that time to represent the initiation of a process of them becoming permanent residents of this country.

6. In about 2011, the mother sought and obtained a temporary work visa through her employer.  That visa is said to have expired in December 2014.

7. In June 2013, the parties separated. 

8. After that separation, on 19 July 2014, the father signed a consent for B’s permanent residency application. 

9. On 20 November 2014, the father apparently withdrew his consent for that application. The mother’s situation now is that her employer is prepared to sponsor her and the children, including B, in relation to a visa for permanent residency.  She, therefore, seeks to have B included on that application.

10. She raises concern that, in the absence of the father’s agreement to the application and his execution of the necessary documentation, it may be determined by the relevant Department – consequently, there remains a risk that she and B may have to leave Australia or, at the very least, that she would be put to the expense of further applications to the appropriate tribunal following such determination.

11. It is clear that any child’s visa status, to use that colloquialism, is a matter completely independent of the consideration of those parenting orders which are in that child’s best interests. 

12. That was conveyed by the mother’s legal representative to the solicitors who then acted for the father in correspondence dated 17 August 2015. 

13. It seems to me that it is appropriate and in B’s best interests that his mother be able to continue the process necessary to seek permanent residency for him.  It is in his best interests, therefore, that orders be made in terms of those contained in the Application in a Case filed 29 July 2015 and an order will issue in terms of paragraphs 1, 2 and 3 of that Application.

14. I do not intend to make an order in terms of Clause 4 because the same is unnecessary given that the Registrar is empowered by s 106A of the Act to execute the documents in the place of a party who has failed to execute them.

15. If it is of concern to the mother that the appropriate authority will not fully appreciate that, I am happy to make a notation in terms of Clause 4 of the orders sought in the Application in a Case filed 29 July 2015 so that there can be no misunderstanding of the completed application.

16. It is clearly in B’s best interests that he be permitted to continue to live in Australia and that his mother be able to obtain the benefits for him, to be used in support of him, that an application for the visa as sought would promote. There is nothing in the material to suggest any other conclusion. 

17. For these very short reasons which I determine are all that is necessary in light of the father’s failure to appear today - and the material before the Court in any event - Orders will issue in the terms I have outlined. 

18. The mother’s legal representative also sought that I make an order for costs of and incidental to the application today. She did so on the basis that I would be persuaded that the circumstances are such that they justify the Court in departing from the starting point for parties - in terms of costs - in this jurisdiction: that starting point, as set out in s 117(1) of the Family Law Act 1975 (Cth), is that each party to proceedings under the Act shall bear his or her own costs.

19. Section 117(2), however, provides that, if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to ss (2A), (4), (4A) and (5), make such order as to costs as the Court considers just.  Such an order may be made by way of interlocutory or other order.

20. Section 117(2A) provides that, in considering what order (if any) should be made, the Court shall have regard to a number of matters.  These include:

    ·    the financial circumstances of each of the parties;

    ·    whether any party to the proceedings is in receipt of assistance by way of legal aid and the conduct of the parties to the proceedings in relation to the proceedings generally;

    ·    whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders;

    ·    whether any party to the proceedings has been wholly unsuccessful;

    ·    whether any other party has made an offer in writing to settle the proceedings and the terms of such an offer; and

    ·    such other matters as the Court considers relevant.

21. Those matters set out in s 117(4), s (4A), and s (5) are not relevant in the present case. 

22. It is clear on the material that each of the parties is in paid employment.  There is no particular detail, though, as to the earnings of each household.  The mother’s employer, it seems, is prepared to sponsor her as has already been made clear. The father’s evidence, as relied upon by the mother’s legal representative, may be found at paragraph 35 of his affidavit filed 17 June 2015 which, in summary, establishes that he is working in the IT field.  He asserts that the pay is not as good as in Australia but the cost of living in City D, State E (where he currently lives) is said to be cheaper than in this country.  He says he has a permanent job with a U.S.-based company.  There is no other evidence, though, as to the extent of his earnings.

23. Another relevant factor is that it appears that, between April 2015 and 17 September 2015, the father sent the mother about $2,500.00 by way of child support for B.  Save for this contribution, it appears that the mother has been left to shoulder the burden of the balance of the financial support for B (as well as, no doubt, for her other children).

24. There is nothing in the material to suggest that either party is in receipt of legal aid.  In the sense that the father’s position as advanced to the Court in the proceedings prior to today was to seek the dismissal of the application, he has been wholly unsuccessful in his approach to this particular aspect of the proceeding. 

25. There is nothing to suggest that the Application was necessitated by any failure on the part of the father to comply with any previous order.

26. It appears to me the contents of Exhibit 1 – namely, correspondence dated 17 August 2015 (more than a month prior to today) amounted to a proposal to resolve the Application in a Case by agreement. A proposal was clearly outlined by the mother’s legal representatives in that correspondence to deal with the Application in a Case by way of agreement so as to save the parties legal costs.  Her position was made clear – namely, that if signed documents were not provided, her right to seek a costs order when the matter came before the Court was reserved.

27. In that sense then, it seems to me well established that the applicant attempted to resolve this proceeding and to obviate its necessity and the necessity of an appearance today well before today and in a manner that was, on the authorities referred to and an application of general principles, inevitable.

28. A further relevant matter is that the father himself has left the Commonwealth of Australia and returned to live in the United States.

29. For those reasons, then, I am persuaded that the circumstances justify the making of an order for costs and I make an order then that the respondent pay the applicant’s costs of and incidental to the application in such amount as may be agreed between the parties or, failing agreement, as assessed. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 21 September 2015.

Associate:     

Date:    21 September 2015