Prior & Prior (No 2) - [2022] FedCFamC1F 783

Federal Circuit and Family Court of Australia
(DIVISION 1)
Prior & Prior (No 2) [2022] FedCFamC1F 783

File number(s): MLC 8811 of 2015

Judgment of: BENNETT J

Date of judgment: 17 October 2022

Catchwords: FAMILY LAW- PARENTING – high parental conflict – need to protect the child (14 years old) from psychological harm.
FAMILY LAW- PARENTING – enforcement of previous parenting orders for the child to spend time with the father in the United States of America – where mother remained resistant to the child travelling to the United States - where implementation of the orders entitling the child to spend time with the father in the United States was frustrated by COVID-19 protective measures, administrative delay in availability of interviews for applications for a visa and lack of timely co-operation on the part of the mother - where child has left the care of the mother in Australia of his own accord and without her permission.
FAMILY LAW- PARENTING – where father seeks change of residence and to relocate the child to the United States permanently – where mother seeks immediate return of the child and to discharge previous orders for child to spend any time with the father.
FAMILY LAW- PARENTING – where court not satisfied of any change in circumstances whereby child’s best interests are served by re-litigation of earlier parenting dispute
FAMILY LAW- PARENTING – where it is in best interests of the child to remain in the care of third parties at the direction of the husband and to travel to America as soon as possible – where no orders compelling or preventing the child seeing or communicating with the mother and with his older sister before he departs Australia -where outcome accords with the evidence of Court Child Expert as to the child’s best interests.

Legislation: Family Law Act 1975 (Cth) s 65DA

Division: Division 1 First Instance

Number of paragraphs: 54

Date of hearing: 16, 22 and 26 August 2022

Place: Melbourne (via Ms Teams)

Counsel for the Applicant: Ms Jeans

Solicitor for the Applicant: CMA Law

Solicitor for the Respondent: Victoria Legal Aid Duty Lawyer

Counsel for the Independent Children’s Lawyer: Mr Eidelson

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:

17 october 2022

THE COURT ORDERS THAT:
1.The mother’s application for X born 2008 (“X”) to be returned to her care and reside with her be and is hereby dismissed.
2.This matter be adjourned for a period of 7 months for mention on Friday 30 June 2023 at 9.00 am and there be liberty to the parties to have the matter brought on earlier with proper material if needs be.
3.I otherwise dismiss each parent’s application for interim orders.
4.In lieu of the provisions provided for in the Order of 28 October 2021 for X to…

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 (No 2)

Details

AGLC: Prior & Prior (No 2) [2022] FedCFamC1F 783
Case: [2022] FedCFamC1F 783
Decision Date

CaseChat Overview and Summary

This case involved an application by the father, Mr Prior, for sole parental responsibility in respect of the 14-year-old child, X, and for X to travel to the United States to live with the father. The mother, Ms Prior, opposed the application and sought that X be returned to her care and reside with her. The legal issues the court had to decide included whether it was in X's best interests to remain in the care of third parties and travel to America as soon as possible, whether any orders compelling or preventing X from seeing or communicating with the mother and his older sister were appropriate before he departed Australia, and what orders should be made to facilitate X's travel to America. The court's reasoning and outcome were that it was in X's best interests to travel to America as soon as possible once he obtained the necessary visa, and the orders made by the court included dismissing the mother's application for X to be returned to her care, ordering X to reside with the father or at the father's direction with Mr and Ms K until he travels to America, and directing the father to make arrangements for X to attend any interview for a visa or permission from the United States government for X to enter the United States. The court also ordered that the mother not disturb the placement of X in the household of Mr and Ms K pending X's departure from Australia and to the United States of America.

Orders