Gutierrez & Sujatha (No 2) [2026] FedCFamC1A 50 (27 March 2026)

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Gutierrez & Sujatha has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. By Application in an Appeal filed on 10 March 2026, the applicant seeks to review a decision made on 27 February 2026 by an appeal judicial registrar, which dismissed an application for an extension of time within which to file a Notice of Appeal.
2. The applicant requested his application be determined at an oral hearing and, in accordance with his request, the application was determined in that fashion.

1. The parties' final hearing in proceedings pursuant to Pt VII of the Family Law Act 1975 (Cth) ("the Act") took place before a judge of the Federal Circuit and Family Court of Australia (Division 1) over 14 days between February and July 2025. Final orders were made and reasons were delivered on 23 December 2025, recorded as Gutierrez & Sujatha (No 2) [2025] FedCFamC1F 951 ("reasons for judgment").
2. The final orders provided that the parties' two children, aged 10 and 15, live with the respondent, that she have sole parental responsibility and that she be permitted to relocate their residence to the United States of America ("USA") no sooner than 2 January 2026.
3. In the reasons for judgment, the primary judge recorded the following matters relevant to her determination and, more significantly, to the present application:

1. It is an issue of significant contention between the parties as to the circumstances which led to the mother and the children coming to Australia, and why it is that they have remained here. In essence, it is the mother's position that she and the children travelled here for an extended visit, and that they ultimately stayed in Australia as a result of international border closures imposed as a consequence of the Covid-19 pandemic. The mother feels she has been "trapped" and held "hostage" in Australia, because following the opening of international borders she has been in dispute with the father about the living arrangements for the children. It is the father's case that the mother intended and indeed did relocate to Australia with the children, carrying out a plan agreed to by the parties prior to their separation. In essence it is the father's case that the mother has had a change of heart about that relocation. 2. The residence and visa status of each of the parents and the children has become a significant factor in these proceedings, and to that end, at the time of trial, and accepting the evidence of the single expert engaged by the parties Mr P (an Accredited Specialist in Immigration Law), I am satisfied that their respective visa statuses are as follows:

(a) The mother had the benefit of a Skilled Regional (Provisional) Visa (subclass 489), obtained in April 2018. This visa permitted the mother to reside temporarily in South Australia for a period of four years until April 2022. The visa however was extended in or about March 2022 until 17 April 2025 as a result of extensions provided by the Department of Home Affairs during the Covid-19 pandemic. It is this visa which permitted the husband and the children to also enter Australia and remain in Australia as secondary applicants. It is not possible for the mother to extend this visa or the associated secondary visas granted to the children. > > (b) The options available for the mother to remain in Australia beyond her current subclass 489 are: > > > (i) For the mother to have met the requirements of "full time" employment prior to 16 April 2024 such that she would be able to apply for a Permanent Residency (subclass 887) Visa ("full time" employment for a period of 12 months prior to her visa expiring on 17 April 2025). This is not a requirement the mother has been able to satisfy. If however, the mother lodged such an application (which would certainly be refused when assessed as the mother has not met the work requirements), the mother would however be entitled to a Bridging Visa whilst her application was being processed entitling her to remain in Australia during that assessment period; this is the circumstance the mother now finds herself in. > > > > (ii) For the mother to be sponsored by the father to obtain a Parent Visa if the children secure permanent residency under a child visa pathway, however this pathway for the mother does not entitle her to a bridging visa, and the processing times for this type of visa is estimated to be 14 years. This means that the mother could not remain in Australia whilst this visa application was being processed. > > > > (iii) For there to be ministerial intervention to enable the mother to remain in Australia. > > (c) The father has the benefit of a Permanent Residency (subclass 887) Visa which grants him permanent residency in Australia. He obtained this visa in his own right on or about 13 February 2024. > > (d) The children's current visa associated with the mother was also due to expire when the mother's visa expired on 17 April 2025. The father (endorsed by the mother) made an application for a Child (Residence) (class BT) Child (subclass 802) visa for the children on or about 20 September 2024. If granted, this visa will grant the children permanent residency in Australia. The lodgement of this visa application entitles the children to a bridging visa whilst their application is being processed. The current estimates on the processing times for this type of visa application are between 18 and 24 months. However, as a result of evidence heard during the trial, it is not known whether certain inaccuracies recorded by the father in the children's visa applications will have an impact on the success of the application. Either way, the children must be in Australia for the visa to be granted and the parties have agreed some orders to facilitate this occurring.

1. The proceedings have a protracted history before the court. Orders were made on 28 June 2024, following a final hearing which took place across four days in March 2024 (Gutierrez & Sujatha [2024] FedCFamC1F 421). Those orders however were the subject of appeal and cross appeal by the mother and the father respectively. The appeal was allowed pursuant to orders made 2 December 2024 (Sujatha & Gutierrez (2024) FLC 94-227) and the matter remitted for hearing.

...

1. By way of background, the following facts do not appear to be in dispute, and I find:

(a) The father was born in State CC, USA in 1973, making him 51 years of age at the time of trial. The father is currently employed as a manufacturer.

(b) The mother was born in State DD, USA in 1974, making her 50 years of age at the time of trial. The mother is a musician, working remotely for EE Company and FF Company both of which are based in City B, State C and otherwise working as an independent contractor in various roles in the music industry in Adelaide.

(c) The parties met when they were each living in City GG, USA in October/November 2000.

(d) The parties moved from City GG to City HH, State C in September 2001, and commenced cohabiting together at this time.

(e) The parties married in County JJ, State C in 2003.

(f) The parties moved to City B, State C in or about late 2008.

(g) The child X was born on in 2010.

(h) The child Y was born in 2015.

(i) In December 2015 the parties and the children travelled to Australia for a holiday.

(j) In July 2016 the parties engaged a migration agent to commence the process of applying for a skilled migration visa enabling them to live in Australia.

(k) In July 2017 the mother began a relationship with her current partner Mr D. The mother admits that this relationship began prior to her separation from the father.

(l) On or about 24 October 2017, the mother applied for a Skilled Regional (Provisional Visa) (subclass 489) to South Australia, with the father and the children as secondary applicants.

(m) In late October 2017, and after the mother's visa application had been lodged, the father became aware of the mother's relationship with Mr D.

(n) In April 2018, the mother's application for a Skilled Regional (Provisional Visa) (subclass 489) was granted; with the mother the primary visa holder and the father and the children granted secondary visas.

(o) The parties separated in January 2018 on the mother's case and May 2018 on the father's case. It is not necessary to resolve this factual dispute.

(p) At the time of separation X was eight years of age and Y was almost four years of age.

(q) In or about March 2018 the parties began a "nesting" parenting arrangement for the children, which saw the children remain in the former matrimonial home and the parents separately living in the home at the times that the children were in their respective care.

1. The primary judge recorded that, although there was a significant contention between the parties as to the circumstances in which they and the children came to reside in Australia, it was ultimately unnecessary to resolve that dispute. In that respect, the primary judge recorded as follows:

1. Whilst on the one hand it is understandable that the parties considered this significant controversy between them required resolution, it is not however one that the court considers necessary to resolve. This is because for whatever reason, the reality of the circumstances the parties now find themselves in is that:

(a) The parties and the children have now been in Australia for in excess of 5 years;

(b) The mother does not wish to remain living in Australia;

(c) The mother wishes to relocate with the children back to the USA; and

(d) The father opposes the mother's relocation of the children as he wants them to remain living in Australia, and if the wife must return to the USA, then with him.

1. The reasons that sit behind these incontrovertible circumstances, whilst important to the parties (and likely their respective sense of moral righteousness), are not ones the court must resolve.

...

1. Despite this finding, if however, the father's case on this topic had been accepted and a finding was made that there was an agreed plan for the entire family to permanently relocate to Australia, the mother is not prohibited from changing her mind. Alternatively, if the mother's case was accepted and a finding made that she had remained in Australia with the children for far longer than she ever intended they do so, what it must rhetorically be asked turns on such a finding? This is because whatever the answer to this factual dispute may be, all roads would have led to these proceedings given the mother's desire to relocate the children to the USA and the father's desire for the children to remain in Australia. This is because the unavoidable fact of the matter is that the mother no longer wishes to live in Australia.

2. Moreover, and of some significance I am satisfied that there is little to no prospect of the mother being able to remain in Australia, given my satisfaction that:

(a) The mother's subclass 489 visa no longer permits her to remain in Australia, it having expired in April 2025;

(b) It appears futile for the mother to be successful in obtaining a Permanent Residency (subclass 887) visa (not having met the "full time" work requirements), although the mere lodgement of the same would result in the mother obtaining a bridging visa whilst this visa application was being processed, enabling her to remain temporarily in Australia;

(c) Whilst the mother can apply for a Parent Visa (likely a subclass 143 Contributory Parent Visa), there is no bridging visa provided whilst that application is pending, and this process could take up to 14 years; and

(d) It appears that the best the mother can presently hope for is some form of ministerial intervention.

1. Undisputably, the mother's own freedom of movement and self-determination about where she wishes to live is not in question. Here, however the mother no longer has a choice about whether she will ultimately be entitled to remain in Australia. These issues aside, the issue for the court to determine is that the mother asks the court to make orders permitting her to relocate the children with her to the United States of America. As discussed later in these reasons when considering the relevant legal principles that apply to these proceedings and whether orders ought be made permitting the mother to relocate the children with her, the mother's freedom of movement is merely one of the factors to be considered.

1. The primary judge also addressed the mother's alternative position if she were not permitted to relocate to the USA, finding as follows:

1. In the alternative to the mother's primary position and in the event that the court did not permit the mother to relocate the children, the mother in summary proposed:

(a) The mother to have sole parental responsibility for the children provided the mother notify the father and consider his views; > > (b) The children to live with each of the parents on a shared care basis in an eight night / six night fortnightly rotation during the school term, together with arrangements for the sharing of school holidays and special occasions; > > (c) The mother to be at liberty to travel with the children internationally at any time that the children are in her care together with an additional period of up to eight (8) weeks in each calendar year (in multiple blocks or consecutively); > > (d) The parents to each be at liberty to travel nationally with the children provided the same does not interfere with the other's time spending; > > (e) The father to be at liberty to travel internationally with the children during his time, provided the same does not interfere with the mother's time spending and such travel does not exceed ten (10) nights unless otherwise agreed.

1. During closing submissions on the final day of the trial, counsel for the parties each acknowledged that the court was not bound by the parties proposals, and that once the court decided where the children were to live, the court might fashion orders, in light of all of the evidence, which best served the children's interests as to their living and time spending arrangements.
2. The primary judge thereafter addressed the applicable provisions of the Act and observed:
   1. Whilst I am cognisant of the fact that these proceedings concern the possible relocation of the children's principal place of residence, the authorities are clear that the question of relocation is not to be dealt with as a discrete or separate issue. Rather, the correct approach is to assess the competing proposals of the parties (Sayer v Radcliff [2012] FamCAFC 209; (2012) 48 Fam LR 298 at [48]), and it is within that context that the moving party's proposal (here the mother) is considered as "just one of the proposals for the children's future living arrangements" (Taylor and Barker [2007] FamCA 1246; (2007) FLC 93-345 at [53]).
3. The primary judge made findings in relation to the evidence of the mother's psychologist as follows:

1. Having considered all of Ms Q's evidence I make findings in relation to her evidence and where relevant accept her opinion, as follows:

(a) The mother first commenced attending upon Ms Q on 5 June 2022 and has thereafter attended upon her at various frequencies, including monthly and once every two to three weeks in the lead up to the first trial and also with longer breaks between appointments, such that across 2024 she only attended four appointments in each February, March, July and December. > > (b) Ms Q was of the opinion that the mother was suffering from anxiety and depression which was "directly related to her having to remain in Adelaide and also having to navigate an abusive relationship (on her account) with her ex-partner and the father of her children" and amplified by the court process and uncertainty (affidavit of Ms Q filed 22 January 2025, p.17 (first report)). > > (c) The mother had completed the Depression, Anxiety, Stress Scale (DASS) on a number of occasions throughout her consultations upon Ms Q, and in particular on 18 July 2022, 5 December 2023 and 16 January 2025. > > (d) The mother's scores on the DASS appear to have deteriorated over time, such that Ms Q was satisfied that the mother's scores across all measures between 2022 and December 2023 had worsened with the mother's anxiety and depression in the "Extremely Severe range" and the mother's stress score in the "Moderate range" by the time of her assessment on 5 December 2023 (affidavit of Ms Q filed 22 January 2025, p.17 (first report)). > > (e) The mother's scores on the DASS by January 2025 placed her stress in the "Mild Range" and her anxiety and depression scores remained in the "Extremely Severe range"; although within that "Extremely Severe range", her depression score had worsened and her anxiety score had improved (affidavit of Ms Q filed 22 January 2025, p.19 (second report)). > > (f) The mother's mental health would be negatively impacted (necessitating ongoing counselling support and possibly use of pharmacological assistance) if the mother elected to remain living in Australia, with Ms Q commenting in her first report:

... I would be concerned about [Ms Sujatha] if she were to remain in Adelaide. ON the one hand, her access to resources (her partner, family, friends, professional work, income, familiarity of home environment, cultural connections) would continue to be severely undermined, and her exposure to high levels of ongoing stress (related to having to deal with [Mr Gutierrez]) would be significantly amplified. This combination of reduced access to resources and high levels of ongoing conflict is especially toxic and in my view, would significantly undermine [Ms Sujatha's] mental health. I am not saying that she would not be able to manage her parenting and other responsibilities adequately, but it would come at a great personal cost." (affidavit of [Ms Q] filed 22 January 2025, p.18)

(g) By the time of her second report Ms Q's opinion about the negative impact on the mother's mental health if she remained in Australia, was unchanged. Indeed I am satisfied that her opinion became stronger as a result of, amongst other factors, the mother's tearful presentation during appointments with Ms Q, the worsening of the mother's depression score and the financial strain the mother was under.

(h) Throughout her evidence Ms Q remained steadfast that the mother's poor mental health would not impact the mother's capacity to meet the needs of the children. However, if the mother was to remain in Australia, the mother would find meeting the children's needs increasingly more difficult with her depression and anxiety unlikely to shift.

(i) The mother's mental health would improve significantly if she were permitted to relocate to the USA with the children.

...

1. I am also satisfied that the mother's poor mental health, if she were to remain in Australia, is a significant factor to be considered in these proceedings.

1. The primary judge then addressed issues arising from the Family Report and accepted the evidence of the Family Report writer, save as to any influence the father had exerted over the children. In that respect, the primary judge made the following findings:
   1. When read as a whole, I am satisfied that the communications are ones instigated by the father so far as discussions about X's appointment with Ms T are concerned. I am also satisfied that when regard is had to X's responses that she was attempting to say as little as possible to the father and to change the topic, to no avail.
   2. In light of the timing of the communications, and the content, I am satisfied that unsolicited or entreated by X, the father in a strategic, clear, considered, calculated and entirely self-interested way attempted to exert pressure on X and/or influence over the views she would express to Ms T and/or the manner in which she conducted herself during her appointment with Ms T. When regard is had to the matters that Ms T reported about her appointment with X and her reticence during the February 2025 appointment, I am also satisfied that the father's communications with X more likely than not had that desired effect upon her.
   3. I am additionally satisfied that the content of the father's communications with X were either knowingly or indifferent to the undermining of the mother and the mother's relationship with X; particularly given my satisfaction that he had misrepresented to X much about the mother's position and comments to Ms T.
   4. In all I am satisfied that the father's communications with X were entirely lacking in any child focus or appreciation as to the vulnerable position it subjected X to and the possible range of vulnerabilities that she might otherwise suffer as a result of receiving those communications from the father.
2. In relation to the father's behaviour generally, the primary judge made the following findings:
   1. However, what is of great significance as a result of these communications (when combined with all of the evidence in these proceedings) is the view that I have come to that the father more likely than not:

(a) will in the future undermine the mother to the children;

(b) is unable to support the children's emotional attachment to the mother and their relationship with the mother, particularly if they were to remain living with him in Australia and the mother were to return to the USA;

(c) has an inability to regulate his own emotions to the children; and

(d) has an inability to prioritise the children's needs and in particular their emotional needs.

1. I am also satisfied that the father's conduct, so far as these messages are concerned, has served to significantly damage what little co-parenting relationship these parties had (noting their counsel in closing submissions on 4 April 2025 acknowledged that their coparenting relationship was "dysfunctional"), together with any ability for the same to be rehabilitated to the point of being functional. This does not bode well for the parties ability to share parental responsibility in the future.

1. In relation to the mother's conduct, the primary judge addressed the matters of concern arising from her evidence and made findings as follows:
   1. I am however satisfied that when weighed together with the mother's conduct since her thwarted attempt to return to the USA with the children in April 2022, the mother has otherwise established to the court that she has the capacity to abide orders of the court and support the children's relationship with the father, despite her own distress about the circumstances that she finds herself in, in Australia and her own psychological impairment arising from the same.
   2. In addition, I do not accept that if the mother were permitted to return the children to the USA and the father remained in Australia, that the mother would be obstructive and/or that she would undermine the children's relationship with the father.
2. The primary judge then turned to issues relating to what was described as the parties' dysfunctional co-parenting relationship, observing that it did not bode well for their ability to jointly exercise parental responsibility. The primary judge thereafter addressed the relevant considerations pursuant to s 60CC of the Act, including the children's views and the influence of the father on those views. The primary judge also observed that, while both parties were from the USA, the father had no intention to returning and recorded the mother's desire to return to the USA and the sense of disassociation that she felt living in Australia.
3. The primary judge was satisfied that both parties were able to meet the children's basic needs for housing, schooling, clothing and food. In relation to their psychological and emotional needs, the primary judge made the following findings:

1. In light of the evidence of both Ms T and Ms Q, I am satisfied that the mother is able to meet the needs of the children in every way. 2. The court is concerned, that the father has limited capacity to meet the children's cultural needs, given my satisfactions as to his dismissiveness of the mother's heritage, together with my view that the father has been reluctant at best, and oppositional at worst, to supporting the children's relationship with the mother's extended family in light of:

(a) his refusal to prioritise the mother's wish to travel to the USA to renew the children's USA passports; > > (b) his reticence to facilitate the children attending the mother's extended family reunion in July 2026, given his assertions that she had only previously attended on three occasions; > > (c) the orders sought by the father, seemingly without any foundation, limiting the children's exposure to the maternal family; and > > (d) his failure to be flexible around his time spending with the children to facilitate the children maximising their time with the maternal grandfather when he travelled to Australia to see the children after a long hiatus.

1. The court also has significant concerns, in light of the evidence of the parties, as to the very significant disparity in the financial circumstances of the parties, and to that end:

(a) I am satisfied that the mother's financial circumstances are untenable and parlous wherever she might live (Australia or the USA), but particularly so if she were to remain in Australia (visa issues aside) in circumstances where she owes no less than approximately USD$228,000 in relation to her legal fees for these proceedings, and her limited ability to secure employment that sufficiently meets the needs of her and the children, including as to housing; > > (b) I am satisfied that the father has significantly greater financial circumstances and resources, (with the father accepting that the mother currently earns less than half his annual income), given not only his regular and secure income from employment, but additional annual distributions from his father's trust fund, which not only provides him with a regular annual distribution of approximately USD$25,000 to 30,000, but also the ability to make, and be granted access to additional funds on an ad hoc basis (at the approval of the trustees), which for example he has done in the 2023, 2024 and 2025 years for the payment of his legal fees in these proceedings, with the capital of the trust fund being an amount of approximately USD$660,000 to$670,000.

4. In relation to the mother's financial capacity, the primary judge made the following finding:
   1. So far as the mother's employment opportunities in the USA as against Australia, I find that the mother appears to be optimistic in the work and income that she might be able to derive in the USA. That aside, I am satisfied that her employment prospects and financial circumstances generally would improve, particularly if she were to remain in a relationship with Mr D and live with him.
5. Under the heading "Anything else that is relevant to the particular circumstances of the child", the primary judge found as follows:

1. I have had regard to the long-standing nature of the parenting arrangements the children have lived in; including but not limited to the arrangements the parties implemented prior to and following the granting of the Divorce Decree, and thereafter the shared care arrangements imposed by the court in July 2024. I find that these arrangements have seen the children develop and maintain strong attachments with both of their parents and have seen both parents actively engaged in the children's lives. 2. I have had regard to the conflicted impact on the children if they were to remain in Australia as against returning to the USA or vice versa, in relation to a range of matters, including but not limited to:

(a) That they would be reunited with family and friends that they have not seen for a long time, as against the loss of friendships in Australia; and > > (b) The children's familiarity with their lives in Australia as against the passage of time since they have had a lived experience of life in the USA, and any disruption to the same including but not limited to schooling, housing, and all of the numerous extra-curricular activities that these children engage in and have been fortunate enough to have their parents support in engaging in.

1. I have given consideration to the father's case that the mother has inveigled the children in her campaign to return to the USA, and that in the process of doing so, he asserts, and the mother admits, that she has engaged in numerous conversations with the children about returning "home" to the USA and discussing life in the USA. To that end, I accept:

(a) The mother's frank admissions in that regard (prolix and confusing as some of her answers were), and I am satisfied that the mother has had discussions with the children, at times in answer to their enquiries, and at times where she instigated the same and made it clear that she wished to return to the USA. > > (b) That the mother has had conversations with the children as to the possibility that she may be required to return to the USA without them, and in relation to her inability to obtain a visa to remain in Australia. > > (c) That the mother told the children across 2024 that they would be returning to the USA at the end of the year, in circumstances where she knew full well that as a consequence of the appeal, that was not accurate.

and concluded as follows:

1. As a result of those preliminary findings, I am satisfied that the mother has not always behaved in an entirely child focussed way, and that at times she is likely to have placed the children under emotional and psychological pressure about her desire to return to the USA.
2. Having made all of the above findings, and having weighed the competing proposals of the parties and the factors that guide the determination of those orders that are in the children's best interests, I have come to the considered conclusion that the children's best interests would be served by the mother being permitted to relocate the children's principal place of residence to City B, State C in the USA.

...

1. In light of the decision that the mother be permitted to relocate the children to the USA, together with all of the matters I have earlier discussed, I consider it appropriate that the mother have sole parental responsibility for the children, on the basis that she consult with the father and take into account his views before making a final decision about any major long term issue, as she has proposed.

1. Having delivered reasons for judgment on 23 December 2025, the appeal period expired on 20 January 2026. The applicant did not file a Notice of Appeal within that time.
2. The applicant contends that, sometime after delivery of the reasons for judgement but before the expiry of the appeal period, he discovered that the respondent had been granted permanent residence.
3. By Application in an Appeal filed 30 January 2026, the applicant sought an extension of time in which to file a Notice of Appeal. That application was heard by an appeal judicial registrar on 18 February 2026 and was dismissed on 27 February 2026.
4. For the purposes of determining this application, I have had regard to all the material relied upon by the parties before the appeal judicial registrar, including the primary judge's reasons for judgment, the Application in an Appeal, the applicant's affidavit, and the parties' written submissions. At the hearing, each party also made further oral submissions.

1. In reasons for judgment anonymised as Verney & Verney [2026] FedCFamC1A 19, I set out the applicable law for such an application in the following terms:

1. An application for review proceeds as a de novo hearing, meaning it is determined without regard to the decision of the appeal judicial registrar... 2. The principles applicable to an extension of time were addressed by the High Court in Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 ("Gallo") and Jackamarra v Krakouer (1998) 195 CLR 516 ("Jackamarra"). Justice McHugh in Gallo observed: 1. ... When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg [1967] VicRp 113; (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201... 3. Time limits exist for good and compelling reasons consistent with the principle that there must be a finality to litigation. For that reason, an application for an extension of time is a serious one that is not lightly granted. An applicant for an extension bears the onus of establishing an arguable case on appeal because if there is no arguable case then the granting of the extension would be an exercise in futility (Jackamarra). 4. The determination of the application involves the exercise of a discretion to ensure that application of the Rules of Court does not work an injustice, not just to the applicant, but also the respondent. 5. Arising from Gallo, Jackamarra, and the observations of Austin J in Whitmore & Whitmore [2022] FedCFamC1A 75, the principles applicable to such an application can be distilled as turning on the central question as to whether the applicant can demonstrate that there is a substantial issue raised by the appeal. This is determined by reference to the draft Notice of Appeal and whatever documents are relied upon apposite to the draft grounds. 6. If the applicant fails to discharge the onus that he carries that is the end of the enquiry as further consideration of the discretionary factors would be futile. 7. If and only if the applicant has discharged the onus of demonstrating that there is a substantial issue to be determined will the court, then in the exercise of its discretion turns to consider other matters such as:

(a) A consideration of the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of a grant or refusal of an extension; > > (b) The extent of any delay and whether there is an explanation for the delay; > > (c) What hardship or prejudice might be sustained by the respondent if an extension of time were granted; > > (d) The public policy of ensuring that there is an end to litigation; and > > (e) Any other relevant consideration.

1. In circumstances where the determination of the primary judge is presumed to be correct, it is incumbent upon the applicant to identify appealable error (Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621). Where the primary judge's determination involved the exercise of a wide discretion, to succeed the applicant must demonstrate error within one of the recognised categories of appellate intervention identified by the High Court in House v The King (1936) 55 CLR 499 ("House v The King"). The applicant must establish not only that error occurred, but also that a different result might have followed had the error not been made (Allesch v Manz [2000] HCA 40; (2000) 203 CLR 172).
2. The applicant has amended his proposed Notice of Appeal such that it now advances grounds different to those before the appeal judicial registrar. The amended grounds of appeal contend that the primary judge erred as follows:
   1. The learned Trial Judge was led into error in [8](b)(i) of the judgment in finding that the mother did not satisfy the requirements of being in full time employment not for a period of 12 months prior to her visa expiring on 17 April 2025 and therefore unable to meet the requirements for a Permanent Residency Visa (Subclass 887).

2. The learned Trial Judge was led into error at [158]:

1. In proceeding upon the erroneous finding that the mother was not and could not satisfy the requirements for a permanent residency visa, when weighing up the competing proposals of the parties; and

2. Concluding that the children' s best interests would be served by the mother being permitted to relocate the children's principal place of residence to [City B], [State C], which conclusion the erroneous factual premise that the mother was unable to continue to reside in Australia.

3. The Learned Trial Judge was led into error as a result of the mother concealing from the Court, from the single expert Mr [P], and from the learned trial Judge, the true facts and circumstances as to her entitlement to apply for and obtain a Permanent Visa, such that a miscarriage of justice has occurred in the determination of the case and the orders made by the learned trial Judge.

4. The learned Trial Judge was led into error by the events as they have emerged following the judgement which events are inconsistent with the judgement and evidence before the court at the time of trial such that, in the interests of natural justice and public interest, it is appropriate to give leave to extend time to file the Notice of Appeal and hear the appeal.

5. A miscarriage of justice has occurred because of the failure of the mother to comply with her continuing disclosure obligations; a miscarriage of justice to the father and the court because the full facts were not put before it for judgement regarding the progress of her permanent residency visa application an which cannot be rectified or adequately ventilated without leave to extend time to file the Notice of Appeal being granted.

6. The learned Trial Judge erred in:

   1. Exercising her discretion in favour of relocation of the children to the United States; and

   2. Finding that was in the children's best interests to relocate with the mother to the United States.

(Annexure JB10 to the affidavit of Mr Gutierrez filed 23 March 2026)

(a) Judgement was delivered on 23 December 2025.

(b) On 24 December 2025, the respondent was granted a Permanent Residence Visa.

(c) The applicant became aware of that fact on 19 January 2026.

(d) The mother and children left Australia for the USA on 2 February 2026.

1. Counsel for the applicant submitted that the respondent informed the primary judge that she was not working full-time and, as a consequence, the primary judge concluded that she could not obtain a Permanent Residence Visa and therefore could not remain in Australia.
2. Counsel for the applicant further submitted that the respondent was issued a Permanent Residence Visa on 24 December 2025 because, contrary to her sworn evidence, she was in fact working full‑time. It was further submitted that the respondent failed to disclose this asserted fact to the Court and, by doing so, failed to comply with her disclosure obligations, thereby misleading the Court and leading the primary judge into error. Grounds 1 to 5, which allege error on the part of the primary judge, rest upon these assumptions.
3. Those grounds (which are, in some respects, poorly drawn and repetitive) seemingly proceed upon the further assumption that the primary judge's determination turned on the respondent's inability to remain in Australia, as opposed to being based on other considerations.
4. In an application of this kind, the Court is required to assess the proposed grounds through the prism of the applicant's prospects of success on the appeal (Gallo v Dawson (1990) 93 ALR 279 at 480). Where the proposed grounds fail to reveal a substantial issue, a refusal to grant leave will not occasion an injustice.
5. Before turning to a consideration of the grounds, it is appropriate to address the further evidence relied upon by the applicant as the foundation for the assumptions he advances, as opposed to what he speculates the evidence to be. The further evidence relied upon is confined to the fact of the grant of a Permanent Residence Visa on 24 December 2025, and nothing more.
6. The submissions of the applicant's counsel as to the basis upon which a Permanent Residence Visa was granted amount to no more than attempts to elevate supposition, suspicion and/or conjecture into fact. They are without foundation, as there is no evidence as to the basis upon which the Permanent Residence Visa was issued.
7. Implicit in the present application is that, if successful, the applicant would seek leave to adduce further evidence on appeal. It is therefore apposite to record the circumstances in which the Full Court would admit further evidence on appeal. In that respect, in CDJ & VAJ (1998) 197 CLR 172, McHugh, Gummow and Callinan JJ observed as follows:
   1. Indeed, even if the Full Court had been correct in concluding that the trial before Baker J had exhibited the three "unsatisfactory elements" to which their Honours referred, we would not accept that it was open to the Full Court to exercise its discretion on the basis that a new trial could or might result in a different order. After all, neither individually nor collectively did those features constitute appealable error. The power conferred by s 93A(2) is not a solvent for correcting orders that the Full Court regards as unsatisfactory but which contain no appealable error. New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A(2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A(2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.

1. Consideration of the grounds of appeal does not reveal a requisite substantial issue.
2. Ground 1 proceeds upon the assumption that the primary judge was led into error in making the finding that the respondent "did not satisfy the requirements" for a Permanent Residence Visa. There is no evidential foundation for the proposition that the primary judge was led into the asserted error. The finding was not erroneous and was consistent with the unchallenged expert evidence. Further, the finding was not expressed in absolute terms, but was appropriately qualified.
3. The reference to error at [158] in Ground 2(a), on the basis that the primary judge was led into error, is erroneous and without foundation. The competing proposals before the Court were plainly delineated as the applicant and children remaining in Australia, or the respondent and children in the USA (at [21]). Ground 2(b) is specious and mischaracterises the findings of the primary judge. For the reasons advanced below, it is an erroneous assumption that the primary judge's determination was based upon the factual premise that the mother was unable to continue to reside in Australia. Such a contention is inconsistent with the matters identified by the primary judge in reaching her determination, as expanded upon below.
4. Grounds 3 and 5 proceed upon a common assumption for which there is no foundation. Ground 4 does not assert a recognisable House v The King ground of appealable error and, as framed, it is no more than a submission. Likewise, Ground 6 amounts to a mere complaint and fails to identify the actual error on the part of the primary judge.
5. I am not satisfied that the grounds identify any substantial issue requiring determination.
6. The primary judge comprehensively addressed the entirety of the evidence and provided clear, sound and compelling reasons for the orders made. The reasons underpinning the orders did not turn on the respondent's visa status but, consistent with authority, on whether the children's best interests were served by living with the respondent in the USA or with the applicant in Australia. This is apparent from a reading of the reasons as a whole, as reflected in the following extracts:

21. ...the reality of the circumstances the parties now find themselves in is that:

(a) The parties and the children have now been in Australia for in excess of 5 years;

(b) The mother does not wish to remain living in Australia;

(c) The mother wishes to relocate with the children back to the USA; and

(d) The father opposes the mother's relocation of the children as he wants them to remain living in Australia, and if the wife must return to the USA, then with him.

...

1. ... the issue for the court to determine is that the mother asks the court to make orders permitting her to relocate the children with her to the United States of America...

...

1. Whilst I am cognisant of the fact that these proceedings concern the possible relocation of the children's principal place of residence, the authorities are clear that the question of relocation is not to be dealt with as a discrete or separate issue. Rather, the correct approach is to assess the competing proposals of the parties (Sayer v Radcliff [2012] FamCAFC 209; (2012) 48 Fam LR 298 at [48]), and it is within that context that the moving party's proposal (here the mother) is considered as "just one of the proposals for the children's future living arrangements" (Taylor and Barker [2007] FamCA 1246; (2007) FLC 93-345 at [53]).

...

1. ...

...

(g) By the time of her second report Ms Q's opinion about the negative impact on the mother's mental health if she remained in Australia, was unchanged. Indeed I am satisfied that her opinion became stronger as a result of, amongst other factors, the mother's tearful presentation during appointments with Ms Q, the worsening of the mother's depression score and the financial strain the mother was under.

(h) Throughout her evidence Ms Q remained steadfast that the mother's poor mental health would not impact the mother's capacity to meet the needs of the children. However, if the mother was to remain in Australia, the mother would find meeting the children's needs increasingly more difficult with her depression and anxiety unlikely to shift.

(i) The mother's mental health would improve significantly if she were permitted to relocate to the USA with the children.

...

1. I am also satisfied that the mother's poor mental health, if she were to remain in Australia, is a significant factor to be considered in these proceedings.

...

1. However, what is of great significance as a result of these communications (when combined with all of the evidence in these proceedings) is the view that I have come to that the father more likely than not:

(a) will in the future undermine the mother to the children;

(b) is unable to support the children's emotional attachment to the mother and their relationship with the mother, particularly if they were to remain living with him in Australia and the mother were to return to the USA;

(c) has an inability to regulate his own emotions to the children; and

(d) has an inability to prioritise the children's needs and in particular their emotional needs.

...

1. I am however satisfied that when weighed together with the mother's conduct since her thwarted attempt to return to the USA with the children in April 2022, the mother has otherwise established to the court that she has the capacity to abide orders of the court and support the children's relationship with the father, despite her own distress about the circumstances that she finds herself in, in Australia and her own psychological impairment arising from the same.

2. In addition, I do not accept that if the mother were permitted to return the children to the USA and the father remained in Australia, that the mother would be obstructive and/or that she would undermine the children's relationship with the father.

...

1. In light of the evidence of both Ms T and Ms Q, I am satisfied that the mother is able to meet the needs of the children in every way.
   1. The court is concerned, that the father has limited capacity to meet the children's cultural needs, given my satisfactions as to his dismissiveness of the mother's heritage, together with my view that the father has been reluctant at best, and oppositional at worst, to supporting the children's relationship with the mother's extended family...

...

1. The court also has significant concerns, in light of the evidence of the parties, as to the very significant disparity in the financial circumstances of the parties, and to that end:

(a) I am satisfied that the mother's financial circumstances are untenable and parlous wherever she might live (Australia or the USA), but particularly so if she were to remain in Australia (visa issues aside)...

...

1. Having made all of the above findings, and having weighed the competing proposals of the parties and the factors that guide the determination of those orders that are in the children's best interests, I have come to the considered conclusion that the children's best interests would be served by the mother being permitted to relocate the children's principal place of residence to City B, State C in the USA.

...

1. In light of the decision that the mother be permitted to relocate the children to the USA, together with all of the matters I have earlier discussed, I consider it appropriate that the mother have sole parental responsibility for the children, on the basis that she consult with the father and take into account his views before making a final decision about any major long term issue, as she has proposed.

1. The reasons clearly reveal that the primary judge's determination was not based on any inability of the respondent to remain in Australia, given she sought orders in the alternative if she were not permitted to relocate to the USA (at [59]), but rather on a consideration of the parties' competing proposals (at [21(b)-(d)]).
2. The primary judge found that the respondent's poor mental health would improve significantly if she were permitted to relocate to the USA with the children (at [88(i)]); that the applicant would likely undermine the respondent to the children (at [108(a)]); that the applicant was unable to support the children's emotional attachment to the respondent if they were to remain in Australia (at [108(b)]); that the applicant has an inability to prioritise the children's emotional needs (at [108(d)]); that the respondent was able to meet the children's needs in every way (at [146]); that the applicant had a limited capacity to meet the children's cultural needs (at [147]); and that the respondent's employment prospects and financial circumstances would be better in the USA ( at [152]).

1. In circumstances where none of the proposed grounds identify a substantial issue to be raised on appeal, the grant of leave would be futile.
2. The Application in an Appeal filed on 10 March 2026 will be dismissed.

1. The respondent sought an order for costs in the sum of $3,500. The applicant opposed such an order.
2. An application for costs is governed by the provisions of s 114UB of the Act which provides a general rule that each party to the proceedings should bear their own costs. Pursuant to s 114UB(2) of the Act, the Court may, in its discretion, make such order as to costs as the circumstances justify having regard to the matters set out in s 114UB(3) of the Act.
3. No one factor in the list of factors set out in s 114UB(3) of the Act is determinative and the Court may give such weight as it considers relevant to any factor (Fitzgerald v Fish [2005] FamCA 158; (2005) 33 Fam LR 123 at [130]). I am satisfied that the applicant's lack of success on the application constitutes a justifying circumstance and that it is proper for the respondent be compensated for the costs incurred. The applicant's counsel did not suggest that the sum sought by the respondent was unreasonable.
4. It is clear that the Court has power to fix an amount for costs (Pascoe & Larsen (No 2) [2022] FedCFamC1A 126; Graham & Squibb [2019] FamCAFC 33; (2019) FLC 93-892). I propose to adopt the approach taken by the Full Court in Warbrick & Warbrick (No 2) (2021) FLC 94-030, where the Full Court observed at [32] that it did "not intend to permit the costs question to become, in effect, satellite litigation" and therefore would fix the costs amount.
5. In view of the applicant's superior financial position, as identified by the primary judge, there is no reason why the respondent should be required to wait for payment of her costs. An order will therefore be made that the costs paid within 28 days.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.