Leggara & Oncins

Case [2021] FamCA 71

FAMILY COURT OF AUSTRALIA

Leggara & Oncins [2021] FamCA 71

File number(s): CAC 2154 of 2017
Judgment of: GILL J
Date of judgment: 19 February 2021
Catchwords: FAMILY LAW – CHILDREN – with whom child lives – international relocation – best interests of the child – where the mother lives in a European country – where the child lives with father in Australia – where each parent accepts parenting capacity of other parent – where each parent intends to remain in their country of residence – capacity and willingness of each parent to support the relationship with the other parent – mother’s non-compliance with Court orders in the European country and Australia – mother’s partner’s attitude to the father – implications of the uncertainty regarding the father’s pursuit of an Australian visa – issues regarding enforcement of Australian orders in the European country.  
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2A), 60CC(3)(b), 60CC(3)(f), 60CC(3)(j), 65DAA
Cases cited:

Jollie & Dysart [2014] FamCAFC 149

Marsden & Winch (No. 3) [2007] FamCA 1364

Mazorski v Albright (2007) 37 Fam LR 518

Morgan & Miles (2007) FLC 93-343

Taylor and Barker (2007) FLC 93-345
Number of paragraphs: 198
Date of hearing: 30 November 2020 – 4 December 2020
Place: Canberra
Counsel for the Applicant: Mr Duane
Solicitor for the Applicant: Farrar Gesini Dunn
Counsel for the Respondent: Ms Davis
Solicitor for the Respondent: Elringtons
Counsel for the Independent Children's Lawyer: Mr Stagg

ORDERS

CAC 2154 of 2017
BETWEEN:

MR LEGGARA

Applicant
AND:

MS ONCINS

Respondent

LEGAL AID

Independent Children’s Lawyer

ORDER MADE BY:

GILL J

DATE OF ORDER:

19 FEBRUARY 2021

THE COURT ORDERS:

1.The child, X, born … 2015 shall live with the father.

2.The father has sole parental responsibility in relation to X.

3.That in relation to the exercise of sole parental responsibility, prior to making a decision about any major long-term issue the father shall:

(a)Consult with the mother with a view to reaching agreement with her about the issue;

(b)Take into account the mother’s views about the issue; and

(c)Notify the mother in writing as soon as he has made his decision.

4.That X shall spend time with the mother as follows:

(a)In Spain, for four weeks during each ACT school holiday period occurring at the end of Term 4, commencing in Term 4 of 2021, on dates and times as agreed between the parties, and failing agreement, as follows:

(i)In 2021 and each alternate year thereafter, from the first Wednesday following the last week of Term 4, and for a period of four weeks thereafter;

(ii)In 2022 and each alternate year thereafter, from 29 December and for a period of four weeks thereafter; and

(b)It is noted that the father intends to travel to Spain with X for the purpose of facilitating the time between X and the mother.

(c)In the event the mother elects to travel to Australia, the father shall facilitate the mother spending time with X in Australia, and the following shall…

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AGLC
Leggara & Oncins [2021] FamCA 71
Case
[2021] FamCA 71
Decision Date

CaseChat Overview and Summary

In the matter of *Leggara & Oncins*, heard by Gill J, the applicant father sought orders concerning the residence of the child, X, born in 2015. The respondent mother resided in a European country, while the child lived with the father in Australia. Both parents accepted the other's parenting capacity and intended to remain in their respective countries of residence. The dispute involved complex issues surrounding international relocation, the best interests of the child, the parents' capacity and willingness to support the child's relationship with the other parent, the mother's past non-compliance with court orders in both Australia and the European country, the attitude of the mother's partner towards the father, uncertainty regarding the father's Australian visa prospects, and the enforceability of Australian orders in the European country.

The court was required to determine with whom the child, X, should live, considering the paramount consideration of X's best interests. This involved assessing the implications of the parents' differing residences, their respective capacities to facilitate a relationship between X and the other parent, and the impact of the mother's prior non-compliance with court orders. Furthermore, the court had to consider the uncertainty surrounding the father's ability to secure a visa for permanent residency in Australia, and how this uncertainty might affect X's long-term stability and living arrangements.

Gill J reasoned that despite the parties' poor relationship and limited capacity for cooperation, both parents demonstrated a positive relationship with and general capacity to care for X. The court noted that the mother's retention of X in Spain contrary to Australian court orders was a significant factor, revealing her attitude towards X's relationship with the father. The court also considered expert evidence regarding the father's visa prospects, which indicated uncertainty but reasonable prospects of success if certain criteria were met. Ultimately, the court concluded that acceding to the father's application represented incremental change for X, offering greater stability in the long term compared to the complete change proposed by the mother.

The court ordered that X shall live with the father and that the father shall have sole parental responsibility, with specific provisions for consultation with the mother regarding major long-term issues. X was also ordered to spend time with the mother in Spain for four weeks during each Term 4 ACT school holiday period, with specific arrangements for 2021 and alternate years thereafter. The court indicated that if the parents were to live proximately to each other in the future, orders for shared care and parental responsibility could be made.

Orders

Orders of the court

CAC 2154 of 2017

BETWEEN:

MR LEGGARA

Applicant

AND:

MS ONCINS

Respondent

LEGAL AID

Independent Children’s Lawyer

ORDER MADE BY:

GILL J

DATE OF ORDER:

19 FEBRUARY 2021

THE COURT ORDERS:

1. The child, X, born … 2015 shall live with the father.

2. The father has sole parental responsibility in relation to X.

3. That in relation to the exercise of sole parental responsibility, prior to making a decision about any major long-term issue the father shall:

(a) Consult with the mother with a view to reaching agreement with her about the issue;

(b) Take into account the mother’s views about the issue; and

(c) Notify the mother in writing as soon as he has made his decision.

4. That X shall spend time with the mother as follows:

(a) In Spain, for four weeks during each ACT school holiday period occurring at the end of Term 4, commencing in Term 4 of 2021, on dates and times as agreed between the parties, and failing agreement, as follows:

(i) In 2021 and each alternate year thereafter, from the first Wednesday following the last week of Term 4, and for a period of four weeks thereafter;

(ii) In 2022 and each alternate year thereafter, from 29 December and for a period of four weeks thereafter; and

(b)

Background

Background to the litigation

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Evidence

Evidence Before The Court

Absent contradictory evidence I accept the assertions of Mr D.The visa evidence The parties sensibly engaged a single expert to deal with the migration and visa related issues in this case that impact whether either parent, or X, are able to remain in Australia, and able to do so indefinitely. The expert prepared two reports, the second with the assistance of arguments and material provided by the parties’ own migration lawyers, thus providing clarification of matters prior to the trial of the matter. The conclusion reached by the expert was that there could not be certainty as to whether the father would, or would not be able to receive a visa that provides a pathway to permanent residency. The expert observed that the subclass 494 visa, subject to the Regulations being enacted, would provide a pathway to permanent residency. The qualification of being subject to the Regulations being passed was on the basis that the Regulations supporting the class of visa have not yet been enacted. The father has not yet made application for such a visa. The expert acknowledged that the father has not as yet obtained the supporting material from his employer to support the pursuit of a subclass 494 visa based upon his training and employment by his current employer. Absent such material, there were limitations on the expert’s ability to assess the father’s prospects. This was not the only source of uncertainty as expert acknowledged that the exercise was one of inherent uncertainty due to the degree of discretion that may be exercised by the decision maker as to the granting of a visa, describing the assessment of visa eligibility as “inherently speculative.” The expert accepted that, provided the supporting material from the employer met the criteria, then the father would have reasonable prospects to obtain the visa. However, the mother posed a number of matters that undermine the father’s pursuit of the subclass 494 visa. The visa requires anticipated long-term employment with S Company, the father’s employer since 2013. The father, it was alleged, previously represented to the migration authorities in January 2018 that the S Company employment was temporary pending his return to Spain. A further issue was raised that, as the visa requires an intention on the part of the father for the work with S Company to be ongoing, his affidavit evidence about pursuing a project management role was inconsistent with such. This was identified as an impediment to obtaining the visa should the migration authority become aware of it. Further, as noted above, the father’s employer, as yet, has not provided the nomination material to the migration authority that is a precursor to obtaining the visa. Importantly, it was identified by the expert that a hard barrier to obtaining the visa is the absence of full-time employment for a three-year period at the time of application (noting that the three years is not required to be consecutive). The father accepted that while he was studying his working hours varied between 20 hours per week during term and 40 hours per week during holiday periods, balancing out at about 30 hours per week. These hours were dictated by limitations imposed by his visa in relation to periods in which he was engaged in study. Since finishing his course, he has not been restrained in such a manner. The expert thought that full time employment was likely to be assessed as 35 hours per week, but also asserted that there was likely to be some leeway in interpretation as to what constituted full-time.

Decision

Reasons for decision

Finally, acceding to the father’s application means, at worst, incremental change for X. If the father is successful in obtaining a visa and then permanent residency, X’s arrangement will remain stable and uninterrupted in the long term. If the father is unsuccessful, then at some point in the next few years, after the avenues to pursue the visa are exhausted, X’s change will be to a new country and shared care, rather than the complete change now proposed by the mother, followed by that further change to shared care as agreed by the parties to be in X’s best interests.Conclusion Orders will be made for X to live with the father, whilst the parents remain in different countries. In the event that they live proximately to each other, orders as proposed by them, for shared care and parental responsibility, will be made. Given the commonality and appropriateness of the parties’ proposals in the event that X lives with the father in Australia, orders will be made in accordance with their proposals.

Ratio Decidendi

Legal Principle Established

These matters may have carried weight in the event that either party challenged, in a general sense, the capacity of the other party to care for X, or alleged an ongoing significance of previous incidents of control. However, they do not. Despite this conclusion, and despite the history of their difficulties, they each conducted their case on the basis that each has a positive relationship with and the general capacity to care for X. The evidence does not paint a clear picture of control, or of significant deficits on the part of either party. It does, however, support a conclusion that was rendered apparent during the trial. These parties have a very poor relationship, with limited capacity for cooperation.Care for X post separation Post-separation, from October 2017 until 21 May 2018, X primarily lived in an equal shared care arrangement in Australia as per the orders of Judge Tonkin on 18 December 2017. The orders provided for equal shared parental responsibility and equal time with the parents. On 17 May 2018, an Order was made that allowed the mother to take X to Spain on 21 May 2018 and required that she return with him to Australia by 20 June 2018. The mother travelled with X to Spain, but failed to comply with the order to return, and X remained in Spain until 11 July 2019, when an Order was executed for X to be returned to Australia to live with his father. When the mother and X first arrived in Spain, they lived with the maternal grandparents and the mother’s brother. On 12 November 2018 she and X moved into independent accommodation. Given the retention of X in Spain, X did not spend any time with his father between 21 May 2018 and 11 July 2019. While X did not spend any time with his father, for the majority of this period, X communicated with his father at least every second day. Once orders were made by the Spanish Court in October 2018 X spent time with his paternal grandparents every second day until X was retrieved by the father in July 2019. Circumstances of X’s retention in Spain The circumstances of X’s retention in Spain contrary to the orders of the Family Court of Australia loomed large in the proceedings, as a matter relevant not only to anticipated compliance or non-compliance by the mother with the orders of this Court, but also in what they reveal about the mother’s attitude to X’s relationship with the father. The progress of the proceedings in Spain and the manner of the mother’s conduct in relation to those proceedings speaks to those issues. The father called his Spanish lawyer, Mr D, as a witness in these proceedings. He gave largely unchallenged evidence as to the conduct of the proceedings in Spain, which spanned the Court of First Instance no.3 in N Town (Q City), the Court of First Instance no.26 in Q City and the High Court of Q City. The proceedings before each of the courts are summarised below, along with relevant aspects of the proceedings before the Federal Circuit Court of Australia and the Family Court of Australia.