Prior & Prior - [2022] FedCFamC1F 518

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Prior & Prior

Details

AGLC: Prior & Prior [2022] FedCFamC1F 518
Case: [2022] FedCFamC1F 518
Decision Date: 13 May 2022

CaseChat Overview and Summary

The matter of Prior & Prior was heard in the Federal Circuit and Family Court of Australia. The dispute between Mr Prior and Ms Prior involved a high conflict parental relationship where the parents failed to cooperate over their child's visa application. The primary concern was ensuring the child's visa was issued in a timely manner to prevent any suffering due to its non-issue. The court recognised the value of the work done by the USA Consulate staff in this regard.

The legal issues the court had to decide included the appointment of an independent children's lawyer to represent the child's interests, the repayment of money by the father to the mother for the visa application, and the transfer of responsibility for the visa application from the mother to the father. The court also had to decide on the timeline for the child's travel to the United States and the father's responsibility for taking the child to the British Embassy for an examination if necessary.

The court ordered that an independent children's lawyer be appointed to represent the child's interests, with Victoria Legal Aid arranging such representation. The father was required to repay $244 to the mother for the visa application, and the mother was to provide details of the account onto which the payment should be made. The mother was also required to advise the father in writing of the date, time, and mode of application for the visa, and to transfer responsibility for the visa application to the father. The father was prohibited from using any email address provided by the mother for any purpose other than identifying the visa application. The court also provided for the possibility of altering the dates specified for the child's trip to the United States if no visa was available before the specified start date.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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

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