Saar & Briedis [2025] FedCFamC1A 138 (4 August 2025)

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 Saar & Briedis has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is an appeal against parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 20 February 2025. The orders provided for the parties' child, who was born in mid-2016, to live with the respondent mother and spend five nights a fortnight with the appellant father whilst the child was in Australia. If the respondent moved to the United States of America ("the United States"), the child would live there with the respondent and spend specified times with the appellant.
2. The appeal is only against orders relating to the relocation of the child's residence. Whatever the outcome therefore, the child will continue to live primarily with the respondent.
3. Order 2, in terms, "permitted" the respondent to relocate the residence of the child. Whilst commonly used, it is an unfortunate word which tends to focus the case as to one of permission to move a child's residence, or even worse the parent's residence, and the reasons for the move, rather than on the fundamental issue which is what orders are in the child's best interests.
4. In Babcock & Waddell [2019] FamCAFC 129, Aldridge J, with the agreement of Ryan J, raised this point at [140] and referred to the following:

I do not consider that the references in the reasons of the primary judge and in those of the Full Court to the provision of "permission" to the mother to return to the Northern Territory with her son indicated an erroneous understanding of the decision which had actually to be made. As I have shown, this was the very way in which the parties framed their respective affidavits and presented their arguments. It was unsurprising, therefore, that the judges should also slip into the same language. Notwithstanding this, it would be preferable that such references to "permission" to relocate be avoided. The word has a tendency to distract attention from the jurisdiction actually being exercised. In this case, it concerned the custody and guardianship of the child, residence arrangements and access and contact orders, all of which fell to be decided having regard to the welfare of the child as the paramount consideration. To treat the determination of the residence of the child, and the connected issue of custody, as dependent upon the giving or withholding of "permission" to a parent to relocate his or her residence may divert attention from the child's welfare, to the competing needs and demands of the parents in conflict.

(Footnotes omitted)

142 To a similar effect, Hayne J said at [217]-[218]:

... But that does not mean that the question for the Court is whether the mother is to be permitted to move to Darwin. And it does not mean that the question is whether the mother has shown a "good" or a "compelling" reason for wanting to move.

To translate the question into this form - has the mother shown a good, or good enough, reason for wanting to move - focuses attention upon the reasons and motives of the mother. But that is not the proper focus of inquiry. The proper focus is which is better for the child - to be in the custody of the father (in Perth) or to be in the custody of the mother (in Darwin). That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the mother's custody in Darwin ...

(Original emphasis)

1. As has been said many times before, a relocation case is a parenting case and is governed by all of the principles that apply to such cases and guide the outcome.
2. In this case, the appeal is against only one paragraph of the primary judge's reasons, albeit an important one. Her Honour said:
   1. Ultimately, the Migration Expert gave impressive and comprehensive evidence about the options available to the [respondent] and child, including the E3 Visa, which is for Australians, and how that can lead to permanent residency. On the strength of the expert evidence, I am well satisfied the [respondent] will be able to chart a path to the USA and permanent residency and have no doubt she will be assisted by her father in doing so.
3. The four grounds of appeal challenge the findings in the last sentence.
4. The migration expert said that there were many paths for an Australian to obtain permanent residency in the United States. Some, such as various lotteries, had limited chances of success (15 per cent and 25 per cent) and some offered greater chances, particularly the employer sponsored programs.
5. The respondent has received an indication of interest from a potential employer who was interested in sponsoring her but had not yet had a written offer of a position.
6. Obviously, as the expert said, such employment and sponsorship would be easier to obtain if one was living in the United States.
7. Therefore, according to the expert, most Australians enter the United States on an E3 Visa. This is a temporary visa, for a period of two years, but can be extended indefinitely. The expert said that the normal course was for Australians to enter under this visa then apply for permanent residence. We will return to this visa when dealing with Ground 3.
8. Our first task, before turning to the grounds of appeal, is to determine what the primary judge intended to find in the last sentence of [189].
9. The appellant contended, with some force, that the finding was that the respondent will be successful in obtaining a permanent visa and pointed, in particular, to the words "well satisfied" and "will". This understanding is the foundation for Grounds 1, 2 and 4.
10. It is important to note that the expert did not express any opinion as to whether or not the respondent would be successful in obtaining a permanent visa. Indeed, as counsel agreed, no such opinion could be given because ultimately the decision is one for the relevant authorities in the United States. This is the point raised by Ground 2.
11. However, the expert did say, without challenge, that there were many different avenues available to the respondent to obtain permanent residency which had varying prospects of success. This is what the primary judge said in the last sentence of [189], especially in the words "chart a path". That is to say, the respondent will find a pathway that could lead to permanent residency.
12. That is a finding that the respondent may succeed in obtaining permanent residency, not that she will succeed in doing so.

Did the primary judge fail to give adequate reasons for her conclusion that the respondent will be able to chart a path to permanent residency in the United States through the granting of a temporary visa? (Ground 1)

1. The Summary of Argument said:
   1. The requisite findings as to the [respondent's] ability to stay permanently in the US are integral to her application to relocate. Her evidence is she intends to live there permanently. She needed to establish how she could do so with no residence rights absent the obtaining of permanent residency before she left Australia. The path of reasoning that led the Trial Judge to conclude she could do so, given this was a fundamental consideration to the relocation application, needs to be discernible and comprehensive. It is not. Foundational to the [respondent's] application to relocate with the child to the US is her entitlement to stay there permanently. As such it is respectfully submitted, the relocation decision ought not be allowed to stand, based as it is on a conclusion with no or adequate reasons.
2. Three things are to be said about this paragraph.
3. The first is that, as already explained, we do not accept that the primary judge found that the respondent would obtain permanent residency, which is the premise of the submission.
4. The second is that permanent residency was not a prerequisite of the order for the child to live in the United States. This is an example of focusing on the relocation as if it was a separate step in the considerations before the court. It was an aspect of the parenting case. In this matter, her Honour found that the best interests of the child were served by living with the respondent in Australia or in the United States whether that be temporarily or permanently.
5. Thirdly, the obligation is to give adequate reasons not comprehensive ones.
6. The test for adequacy of reasons is well known. In Bennett and Bennett [1990] FamCA 148; (1991) FLC 92-191 the Full Court adopted the following test (at 78,266):

The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will ... be inadequate if:-

(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or

(b) justice is not seen to have been done.

1. The expert said that there were many possible paths by which the respondent could obtain permanent residency which are clearly set out in his evidence. Her Honour accepted that evidence and made findings accordingly. The reasoning is discernible, and the reasons are therefore adequate. Indeed, we are not sure of what else could have been said.
2. The reasons must also be seen in the light of the parties' submissions.
3. The submissions at the hearing (senior counsel who appeared for the appellant on the appeal did not appear at the hearing before the primary judge) as to visas commenced with:

[COUNSEL FOR THE APPELLANT]: ...And what I would say is that he encourages and endorses - well, he identifies, here are, effectively, three permanent visas. You have what might be described as the diversity lottery, which is very much just that. And it's a 15 per cent chance on the figures from last year. Not the best of odds. You then have the work visa, which it must be said the evidence about the [respondent's] work experience, her qualifications and what is required for highly skilled when one looks at the process, and your Honour heard - we will use the acronyms, there was the DOL and the PERM, but there is a requirement that an employer has to go to before they can even offer you that visa. It's a relatively high bar, and it's certainly higher than the E-3 process. I accept that as a proposition. And then, there's, of course, the R, but the religious worker visa, which at the present time, it doesn't appear the [respondent] would be eligible because her work experience is not within those defined roles. Then, there is, of course, all of the delay involved in that, and it seems common ground that if one is not lucky enough to win the lottery, the employer-sponsored permanent visa is a years-long process.

(Transcript 23 October 2024, p.10 lines 11-25)

1. Counsel then turned to the E3 and R1 Visas and asserted that to obtain such a visa the respondent would have to engage in a court-authorised fraud. We shall deal with that submission when we consider Ground 3.
2. That was the extent of the submissions on this point. There were no submissions put that the respondent could not or would not obtain permanent residency. Rather, the submissions accepted that there were a number of pathways, all beset with some difficulties of a greater or lesser nature.
3. That was essentially consistent with the expert evidence.
4. The submissions, therefore, did not require more extensive reasons than those given.
5. This ground does not succeed.

Was the primary judge's conclusion that there was a "path" for the respondent to obtain permanent residency in the United States wrong and an error of fact? (Ground 2)

1. As we have already explained, we do not accept that the primary judge made the asserted finding. The finding made by the primary judge was that the respondent "will be able to chart a path" not that she would necessarily be successful in obtaining permanent residency.

Did the primary judge fail to provide adequate reasons for rejecting or ignoring evidence that the respondent proposed to misrepresent her intention to stay permanently in the United States, by omissions or commission, to the United States government? (Ground 3)

1. We confess that we have some difficulty understanding this ground but, first, some further background is required.
2. The subject matter of the ground is the E3 Visa which allows for temporary residence for two years, but can be extended.
3. The expert suggested a two-stage approach. First, a move to the United States on an E3 Visa then, after arrival, apply for a permanent visa. The difficulty is that to enter on an E3 Visa the entrant must have an intention to leave upon the expiry of the right to stay.
4. The submission on appeal is that such an intention is entirely inconsistent with an intention to reside permanently and therefore the resolution of that contradiction needed to be explained. At the hearing it was first put that the requirement would mean that the respondent would have to lie about her true intention and, in the circumstances of the relocation, this would amount to court sponsored fraud. That submission was subsequently moderated.
5. We do not see the asserted contradiction identified in the ground. The expert said:

[COUNSEL FOR THE RESPONDENT]: And what do you mean by amorphous and vague insofar as the requirement to eventually depart?

[MIGRATION EXPERT]: Well that is because on the one hand, as would be noted in the Foreign Affairs Manual, which is the guide to consular officers, it indicates that you do have to maintain an intention to return overseas upon the termination of your stay under the E3 visa, while, at the same time, making it explicitly clear that an individual who comes to the United States could sell their home, relocate their goods, and re-establish themselves in the United States as long as they're in the E3 visa category.

[COUNSEL FOR THE RESPONDENT]: Okay. All right. And that, therefore, opens up the prospect of moving to a permanent residency visa, being the green card?

[MIGRATION EXPERT]: That is correct.

...

[COUNSEL FOR THE RESPONDENT]: ...But, just coming back to what you said for a moment, is that doesn't mean that once you're there, you can sell all of your stuff, you can have an intention to migrate to America permanently?

[MIGRATION EXPERT]: Yes. It's a little bit of a grey area, but it is - it's kind of understood. I mean, the normal sequence you will see is somebody on an E3 visa concurrently initiating the process of applying for permanent residence. And the various U.S. immigration authorities have confirmed that taking these steps is not inconsistent with being in the United States in E-3 classification.

(Transcript 22 October 2024, p.4 line 34 to p.5 line 10)

[COUNSEL FOR THE RESPONDENT]: The labour certification process that you identified with the permanent migration move, does that have to be with the same employer under the E-3 visa, or can that be with a [different] employer?

[MIGRATION EXPERT]: It can be with any employer. The green card application process is prospective in nature, so it doesn't say anything to what you are doing feasibly at that point in time.

[COUNSEL FOR THE RESPONDENT]: And so - - -?

[MIGRATION EXPERT]: And people don't .....

[COUNSEL FOR THE RESPONDENT]: So she can have the E-3 visa working under the employer attached to the E-3 visa, but simultaneously make an application for a green card with a different employer and go through that process with that different employer?

[MIGRATION EXPERT]: That is right.

(Transcript 22 October 2024, p.6 lines 25-35)

[COUNSEL FOR THE APPELLANT]: And the applicant needs to state unequivocally that they intend to depart the United States at the end of the visa?

[MIGRATION EXPERT]: Yes

[COUNSEL FOR THE APPELLANT]: And if they do otherwise and say, "My intention is to remain", that would be effectively a relevant consideration for the assessing officer?

[MIGRATION EXPERT]: Well, I would say that would be so if they say they intend to remain no matter what. But if what they say is they will remain so long as they're legally authorised to do so, that would be different.

(Transcript 22 October 2024, p.15 line 45 to p.16 line 5)

1. As to whether the requisite intent had to be stated, the expert said that the application form did not require it and an interviewing officer may or may not ask about it.
2. It follows that there is no inconsistency between being on an E3 Visa and applying for permanent residency at the same time. This ground is not made out.

Did the primary judge deal with or determine the entire justiciable controversy between the parties? (Ground 4)

1. Ground 4 contends that the primary judge failed to determine the entire justiciable controversy as to whether:

(a) This Court ought premise parenting orders for international relocation on the [respondent's] misrepresentations to the United States' government about her intention to reside permanently in the United States; and

(b) That the [respondent] would be able to permanently reside in the United States.

(Amended Notice of Appeal filed 2 June 2025)

1. The submission is that these two matters were fundamental to the decision to allow the relocation application. Again, this tends to elevate the question of relocation to the status of a separate issue.
2. As we have just stated, Ground 4(a) is not an accurate assessment of the evidence. Furthermore, Ground 4(b) is misconceived - the possibility of relocation was sufficient in this matter. To repeat, the finding was that it was in the child's best interests for him to live with the respondent in Australia or the United States, temporarily or permanently.
3. That being so, there was no need for any relocation orders to be conditional upon the obtaining of permanent residency or any reasons to be given on this point.

1. No ground has enjoyed any merit. It follows that the appeal will be dismissed.
2. The appeal was wholly unsuccessful. The appellant will pay the respondent's costs fixed in the sum of $19,104 and the costs of the Independent Children's Lawyer fixed in the sum of $6,075.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Carew & Schonell.