Prior & Prior
[2022] FedCFamC1F 518
•13 May 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Prior & Prior [2022] FedCFamC1F 518
File number(s): MLC 8811 of 2015 Judgment of: BENNETT J Date of judgment: 13 May 2022 Catchwords: FAMILY LAW - PARENTING – high conflict parental relationship – where parent’s fail to cooperate over child’s visa application – where child will suffer most by non-issue of visa – where value and volume of work of USA Consulate staff is recognised. Division: Division 1 First Instance Number of paragraphs: 15 Date of hearing: 13 May 2022 Place: Melbourne (via MS Teams) Counsel for the Applicant: Self-represented litigant Counsel for the Respondent: Self-represented litigant Solicitor for the Independent Children’s Lawyer: Victoria Legal Aid ORDERS
MLC 8811 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PRIOR
Applicant
AND: MS PRIOR
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BENNETT J
DATE OF ORDER:
13 May 2022
THE COURT ORDERS THAT:
1.Pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child X born in 2008 (“X”) be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation AND IT IS NOTED that Ms B was the previous independent children’s lawyer in this long running proceeding.
2.The mother immediately provide details of the account onto which she request the father to make payments of money for her.
3.The father forthwith transfer to the mother to the account for which she has provided details to the father the sum of $244 in repayment of which she paid on or about 18 April 2022 to obtain a visa for X to enter into the United States of America.
4.The mother forthwith advise the father in writing of the following:
(a)The date and time and mode of application for a visa for X to enter the United States in anticipation of his visit which, as currently ordered, is to be no earlier than 25 June 2022 and no later than 17 September 2022.
5.The mother forthwith do all acts and things necessary to request and instruct the United States Consulate official to alter the email address referable to X’s application for a visa to the email address of the father which is …. If it is impossible for the Consulate administrators to alter the email address for the visa application, the mother provide her email address to the father to be used by him solely for the purpose of identifying X’s visa application.
6.The mother do all acts and things necessary to pass authority in relation to and responsibility for X’s visa application from herself to the father including making all necessary direction and permission to the United States Consulate.
7.The father is prohibited from using any email address for the mother provided to him pursuant to subparagraph 5 hereof for any purpose other than identifying the application to the United States Consulate for a visa for X.
8.There be liberty to apply to alter the dates specified in paragraph 2.2. of the Order made on 28 October 2021 (for a trip to occur between 25 June 2022 and 17 September 2022) in the event that no visa is available to X prior to 25 June 2022.
9.My reasons for decision be published and all parties including the Independent Children’s Lawyer be at liberty to provide this Order and my reasons therefore to the United States Consulate in connection with any visa application for the child X born in 2008.
10.In the event that X is in the United States at the time he is eligible to sit the examination for select entry into Victorian High Schools (on or about, 23 July 2022) the father be and is hereby responsible for taking X to the British Embassy for the purpose of having X sit the exam on an acceptedly supervised basis. I reserve issue of who is responsible for the cost of such transport and attending the examination if it is conducted outside H City.
11.Pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Prior & Prior has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J:
X is 14 years old and has for most of his life been enmeshed in extremely high conflict between his parents. His parents are Ms Prior, who is an educator in Melbourne. X’s older sister, Y, lives in the mother’s household as does the mother’s new partner. X’s father is Mr Prior, a manager living in H City, who has also re-partnered.
The outcome of long-standing proceedings between the mother and the father included orders being made me on 28 October 2021, pursuant to which X was to travel to the United States on three occasions. The relevant order is as follow:-
2.The child X born in 2008 (“X”) spend time with his father in the United States: -
2.1 from no earlier than 19 December 2021 until no later than 29 January 2022;
2.2 from no earlier than 25 June 2022 until no later than 17 September 2022; and
2.3 from no later than 27 September 2022 until no later than 29 January 2023. (Amended 23 November 2021)
3. The cost of travel to and from the United States for the purposes of paragraph 2 of this |Order be paid by the father and the father notify the mother of return flight details at least 14 days prior to departure and one month prior to the trip in paragraph 2.2 of this Order. The father be and is hereby responsible for booking the tickets and the child is to travel on the dates for which flights are booked.
4. The mother do all acts and things necessary to -
4.1 obtain an international vaccination certificate for X by 5 December 2021 including ensuring X is double vaccinated with an approved COVID 19 vaccine; and
4.2 by no later than 26 April 2022, do those things required, such as attendances on the United States Consulate, to obtain a B2 visa for entry by X into the United States, such visa to be at the father’s expense.
5.The parent with whom X is living or spending time immediately prior to travel, arrange timely Covid tests for X before all flights and immediately notify the other of any positive result and in that case do everything necessary to rearrange flights for X.
The matter is listed before me today on the oral application of Mr Prior, who complains that the application for the second visa to facilitate the trip between June and September 2022 has been unduly delayed. Pursuant to paragraph 4.2 of the Order made on 28 October 2021, the mother had until 26 April 2022 to apply and do all things necessary to obtain a B-2 visa for X to enter the United States and such a visa was to be at the husband’s expense. Ms Prior waited six months, until 18 April 2022, to make the application. Whilst the application was made by the mother within the timeframe permitted in the order, the mother could only have complied with the terms of the Order if she was certain that the visa would issue within 7 days. That was not the case. The mother did not do everything required by 26 April 2022 for a visa to issue for travel “from no earlier than 25 June 2022 until no later than 17 September 2022”.
On 18 April 2022 the mother made an applied for a visa for X using a DS-160 application and an application at the discretion of the consulate. Even though Mr Prior was required to pay the fee for the application, Ms Prior paid it on his behalf. That was $244. The orders that I make today provide for him to reimburse Ms Prior for those moneys.
It has been publicised in our local press that there are long delays of up to 300 days for interviews for visa applications for Australians wishing to travel to the United States. I gather this is in part referable to the fact that the United States Consular officials are no longer processing visa applications electronically and are requiring face to face interviews.
Ms Prior says that the first interview that she has been able to obtain is 6 March 2023. That is a date obviously well outside the dates of X’s intended travel. If that is the only appointment available, the orders that were made on 28 October 2021 will be thwarted.
The frustration of the Order resonates not only for the parties and to some extent the Court but most acutely for the child, X, about whom the Order has been made. It is X who will feel most keenly the disruption and the disappointment of planned trips that cannot proceed. This is on top of the confusion and frustration that X has had to endure in the last three years of his parents’ litigation in this Court about various things, including his entitlement and where X will attend secondary school. It has been a tumultuous time for X. I regret to say that I have observed the parents have been consistently self-interested and high handed with one another in disregard for the real life implications of their actions (and inactions) for X. The mother waiting for 6 months to apply for a visa, when that is hopelessly late to obtain a visa for the intended travel, is a recent display of self-interest and arrant disregard for X, in the parties’ extremely highly conflictual parenting relationship. It is emblematic of what X has to tolerate from both parents since the parents separated.
Ms Prior has been invited to pass authority in responsibility for the visa process to Mr Prior. She is passively opposed to such a course. Her reasons are that the application is defined by the US Consul administrators, in part by reference to her email address, which was the email under which she sent the application. This is an email address which is not known to Mr Prior. The wife does not want Mr Prior to have the address. The simplest ‘solution’ is of course for the address to be switched over to one which pertains to Mr Prior but Ms Prior says that that is “impossible”. However, in the event that she is mistaken or incorrect, I have made an order that she do all acts and things necessary to do that.
Clearly, if the mother’s email address cannot be removed in favour of an address provided by the father, this order will in due course find its way to the desk of an administrator within the United States Consulate and that officer will see what was intended.
The next matter that Mr Prior required clarification of was the date of the application, the mode of the application. It was not straight forward obtaining these details from Ms Prior. However, ultimately the information, which appears above, namely that she applied on 18 April 2022, was divulged. I attach to these reasons for decision the appointment history with which Ms Prior has been issued and I do that for no more than ease of reference.
The next matter which the father has sought is that authority to deal with the US Consulate and responsibility for getting a B-2 visa to issue for X be expressly passed from the mother to him. The mother’s response to that is that it is her understanding it cannot be done because the application has one set of details that cannot be changed midstream. I hope that is not the case.
Independent Children’s Lawyers are appointed in this jurisdiction to represent the best interests of children. I have no doubt that it is in the best interests of X that the arrangements for him to travel to the United States are kept. I respectfully request that the US Consulate do anything it can to provide an earlier appointment for a visa or otherwise a B-2 visa on grounds other than a face to face interview for X.
The father will pursue an urgent appointment, which will probably be a cancellation. In my experience, cancellations of appointments are not uncommon these days, given the prevalence of COVID and other viruses within our community, which means that people are taken ill at short notice and (sensible) do not leave home. Mr Prior contemplates that an earlier interview in the US Consulate may be available in J City. Trekking from Melbourne to J City is an awfully long way for a young boy to travel, probably in the company of someone with whom he is not particularly familiar. Having regard to the incidence of flight cancellations in these early days of air travel being reintroduced to Australia domestically, it could take three to four days for X to go to J City and return. That would have to be at the sole expense of the father.
I won’t make orders which facilitate a J City interview now. I hope that that X will be able to be seen in Melbourne. I understand from Ms Prior that X cannot be seen in Sydney because there is no Consular office in Sydney.
I contemplate that the Independent Children’s Lawyer will bring these reasons and the Order of 28 October 2021 and the Order that I make today to the attention of the US Consulate. I know about the valuable work Consulate staff undertake and that Consulate staff are busy protecting the interests of American citizens and the United States of America. However, I hope that the application for an earlier opportunity for X to be seen and/or to obtain a B-2 visa is considered favourably.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett delivered on 13 May 2022. Associate:
Dated: 19 July 2022
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