Family Court of Australia

DICKSON & DICKSON	[2015] FamCAFC 11	

FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – FORUM – CHILDREN – Where the respondent wife sought parenting and financial orders – Where the appellant husband sought that the proceedings be permanently stayed on the basis of Australia being an inappropriate forum – Where the trial judge only considered the issue of forum in relation to the parenting proceedings and not the entirety of the proceedings – Where the trial judge found that it was in the best interests of the children for the parenting proceedings to be heard and determined in Australia – Where the trial judge made parenting orders and transferred the balance of the proceedings to the Family Court of Australia – Where the trial judge’s conclusion as to forum depended on the capacity of the respondent wife and the children to obtain visas to remain in Australia – Where the evidence of the expert witnesses differed as to whether the respondent wife and the children would be successful in obtaining visas enabling them to stay in Australia until the children completed their secondary education – Where the trial judge made no finding as to the expert evidence to be preferred – Where there was no basis on which the trial judge could find that it was possible for the respondent wife and children to remain in Australia until they completed their secondary education – Where accordingly the conclusion of the trial judge as to forum must be tainted and considered unsafe – Where as a result the trial judge’s conclusions as to the parenting orders are undermined – Where the trial judge did not err in splitting the forum question – Where it was unnecessary to address the remaining grounds of appeal – Appeal allowed – Remitted for rehearing.

FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – ADDUCE FURTHER EVIDENCE – Where the appellant husband and the respondent wife both sought to adduce further evidence on the appeal – Where the evidence is controversial – Where given the outcome of the appeal the more appropriate course is for this evidence to be adduced at the rehearing – Applications dismissed.

FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – COSTS – Where the appellant husband sought an order for costs – Where the respondent wife opposed an order for costs – Where the parties should bear their own costs – Costs certificates issued for the appeal and for the rehearing.	

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth) – ss 6 and 9
Migration Act 1958 (Cth)	

CDJ v VAJ (1998) 197 CLR 172
Bennett & Bennett (1991) FLC 92-191
Dobson & Van Londen (2005) FLC 93-225
Henry v Henry (1996) 185 CLR 571
Kuru v New South Wales (2008) 236 CLR 1
Kwon & Lee (2006) FLC 93-287
Pascarl & Oxley (Edited) (2013) FLC 93-536
Voth & Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Zanda & Zanda (2014) FLC 93-607	

Appellant:	Mr Dickson	

Respondent:	Ms Dickson	

File Number:	MLC	3066		of	2014	

Appeal Number:	SOA	72		of	2014	

DATE DELIVERED:	12 February 2015	

Place Delivered:	Adelaide	

Place Heard:	Melbourne	

Judgment of:	Bryant CJ, Finn & Strickland JJ	

Hearing date:	15 January 2015	

Lower court jurisdiction:	Federal Circuit Court of Australia	

lower court judgment date:	22 September 2014	

LOWER COURT MNC:	[2014] FCCA 2184	

REPRESENTATION

COUNSEL FOR THE Appellant:	Ms Stoikovska	

SOLICITOR FOR THE Appellant:	Jo-Anna F.S. Moy	

COUNSEL FOR THE RESPONDENT:	Mr Combes	

SOLICITOR FOR THE RESPONDENT:	Alpass & Associates	

Orders
(1)	The applications in an appeal filed respectively on 12 November 2014 and
23 December 2014 be dismissed.
(2)	The appeal be allowed.
(3)	Orders 1 to 6 inclusive made on 22 September 2014 be set aside.
(4)	The parenting proceedings and the application to stay those proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Bender.
(5)	There be no order for costs in relation to the appeal.
(6)	The Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by him in relation to the appeal.
(7)	The Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by her in relation to the appeal.
(8)	The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the rehearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dickson & Dickson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE Family Court of Australia at melbourne	

Appeal Number:  SOA 72 of 2014
File Number:  MLC 3066 of 2014

Mr Dickson	
Appellant

And

Ms Dickson	
Respondent

REASONS FOR JUDGMENT
Introduction
1.	By Amended Notice of Appeal filed on 24 November 2014 Mr Dickson (“the husband”) appeals all orders made by Judge Bender of the Federal Circuit Court of Australia on 22 September 2014. 
2.	The appeal is opposed by Ms Dickson (“the wife”).
3.	In summary, the orders made by her Honour provided for the parties to have equal shared parental responsibility for X and Y, both born in 1998 (“the children”), for the children to live with the wife and spend specified times with the husband, insofar as that was possible, he having relocated to the United States of America (“USA”) for work purposes, the names of the children to be removed from the Watch List, the order made on 2 June 2014 placing their names on the Watch List to be discharged, the parties to do all things possible to enable the wife and the children to remain resident in Australia, and for the balance of the proceedings to be transferred to the Family Court of Australia.
4.	The parties’ eldest child, Z, was aged 18 years at the time of trial and thus was not the subject of any parenting orders sought.
5.	On appeal the husband seeks that the orders made by Judge Bender on
22 September 2014 be set aside, that this court “re exercise the discretion and dismiss, or grant a stay of, the [wife’s] Further Amended Initiating Application sworn 7 August 2014”, and pending finalisation of the matter the children live with the husband in the USA.
6.	It was the husband’s position at the hearing before Judge Bender that Australia was not the appropriate forum for determination of the wife’s application, which application sought orders in relation to property, parenting, spousal maintenance, child support, and adult child maintenance.  Accordingly, the husband sought by way of an injunction that the wife’s application should be “permanently stayed” (at [2] and [7]).
Background
7.	At the time of trial the husband was 49 years old, and the wife was 43 years old.  Both parties were born in France but they and all the children of the marriage hold joint French and American citizenship.  They are also all fluent in French and English, and speak French at home.
8.	The husband has a Master of Business Administration from a university in the USA, and a further professional qualification from an institution in France.
9.	The wife cares for the children full-time and has not worked in paid employment since the parties married.
10.	The parties met in France in 1994, and married there in 1995.
11.	The husband was employed by F Company in 1991, and has been employed by associated companies and subsidiaries of F Company since that time.  His employment meant that the parties, and the children, travelled extensively.
12.	In 1995 the husband’s employment took the parties to another part of Europe, and in 1996 their eldest child, Z, was born.
13.	In 1997 the parties moved to the USA and the husband worked out of F Company’s New York office.
14.	The children X and Y were born in 1998 in the USA.
15.	The parties purchased a home in the USA and the parties and Z became American citizens in 2007.
16.	The family lived in City K, from 2003 to 2009 after the husband was transferred by F Company to their new headquarters.
17.	In 2009 the husband was offered a senior position based in Melbourne.  The posting was for four to five years, based on a verbal agreement with no specified timelines, save for a visa renewable every four years.
18.	On 21 May 2009 the husband was granted a Temporary Work (Skilled) visa (subclass 457) (“457 visa”) allowing him to work and reside in Australia, and the parties and the children (including Z) moved to Melbourne in July 2009.  The wife and the children (again including Z) were secondary applicants to the husband’s visa.  In 2013 the husband’s visa was extended to April 2017.
19.	The children were initially enrolled at B School, but in 2012 they were enrolled at private C School (“C School”).  At the time of trial they were completing Year 10 at C School.
20.	In late 2012 the husband was offered a “possible promotion” in China but rejected this offer, he says, because the wife did not want to relocate.  It was the wife’s position that she did not want to move until the children had completed their secondary education in Australia (at [22]).
21.	In 2013 the husband prepared an application for permanent residency which he did not submit due to taxation issues (at [21]), and he discontinued that application in March 2014 (at [28]).
22.	In February 2014, whilst attending meetings in the USA the husband was offered and accepted a position as Executive Director with T Company, a subsidiary of  F Company, based in City K (at [24]).  Whilst the husband was in the USA the wife had her solicitors advise him that she considered the marriage at an end and would be “seeking to resolve financial matters between them” (at [23]).
23.	Upon the husband’s return to Australia the parties separated under the same roof until May 2014 when the wife moved out of the former matrimonial home with the children and commenced to reside in Suburb G.
24.	On 10 April 2014 the wife commenced financial proceedings.  On 22 May 2014 the husband filed a response seeking either dismissal of those proceedings or that they be permanently stayed.  The wife then filed an amended application on 7 August 2014 seeking parenting, property settlement, spouse maintenance, child support, and adult child maintenance orders, and an injunction.
25.	The husband left Australia on 23 September 2014 and as required, terminated his 457 visa.  F Company also gave notice to the Department of Immigration that the husband’s 457 visa should be terminated.
26.	Given their status as secondary applicants to the husband’s visa, the wife and the children (and Z) need to obtain visas to enable them to remain in Australia.
The reasons for judgment delivered on 22 September 2014
27.	The trial judge commenced the reasons for judgment by setting out the procedural history, the proposals of the parties, and the background.
28.	Her Honour then turned to the evidence of the parties, noting that both parties would rely on affidavits of specialist immigration lawyers, namely Mr V on behalf of the wife, and Ms K on behalf of the husband.
29.	Her Honour recorded that the wife gave evidence as follows:
a)	She was the primary caregiver for the children given the amount of travel involved in the husband’s job, he travelling “internationally for 40% of the year” (at [46]).
b)	Although the family were aware that the husband would return to the USA at some stage “there was no definite time set for the return” (at [36]), and that she “at all times indicated her clear preference for the parties to remain in Australia until all three children had completed their secondary education” (at [37]).
c)	The husband informed the wife that he had instructed his employer’s lawyers to submit an application on his behalf for permanent residency in Australia and that the “application would be lodged by the end of January 2014” (at [38] and [39]).  The application was never lodged.  
d)	The husband never discussed the offer of a promotional position back in the USA with the wife “prior to or immediately after he was offered the new position” (at [42]), and the first she knew of it was in March 2014 when she received correspondence from the husband’s solicitors (at [61]).
e)	The eldest child, Z, was exploring all options with regard to University studies both in Australia and “at the husband’s behest” in Canada (at [44]).
f)	It was in the best interests of the children to complete their secondary schooling in Australia, and they “both [expressed] a strong wish to do so as they [were] well settled at the school, [had] established strong friendship groups and [were] progressing very well academically” (at [45]).  If though, as a result of these proceedings the children had to return to the USA, then the wife would go with them.  She would initially live in State W, USA, where she would have the support of her mother and step-father, and not City K, and she had yet to explore schooling options for the children in the USA (at [47] and [49]).  
g)	No applications for visas to enable the wife and children to remain in Australia had been made.
h)	If she and the children were to remain in Australia and she was not able to work, given the type of visa obtained, then she would expect the husband to continue to support the family and meet the cost of school fees.  The parties had “in excess of AU$1 million invested in the United States of America” which could be used to meet living expenses (at [51]).
i)	If they were able to remain in Australia the children could travel to the USA to spend time with the husband, he could travel to Australia to spend time with them, and they could maintain “regular electronic communication via Skype and telephone” (at [52]).
30.	Her Honour recorded that the husband gave evidence as follows:
a)	The wife and children knew that his position in Australia was not permanent and at some stage the family would have to return to the USA.  Further, in December 2013 he discussed this prospect with the wife and children and “the children were excited at the prospect of returning to live in [the USA]” (at [56]).
b)	He had continued to pursue the permanent residency application because “at the end of 2013 the move to the [USA] was still not certain” (at [57]).
c)	He did not tell the wife or children about the new position when offered it on 12 February 2014 because it was his view that the family always knew that they would have to relocate to the USA at some time in the future, they were looking forward to doing so, and “he wanted to tell the whole family the good news ‘face-to-face’” (at [59]).
d)	While transiting en route to Australia, he received an email from the wife’s solicitors advising that the wife considered the “marriage was at an end” and he “immediately rang the wife and during their conversation advised her of his new position” (at [60]).  Although the offer was not formally put until 8 May 2014, it was the husband’s view that having verbally accepted the position he could not then “reject that offer” (at [62]).
e)	He had rented fully furnished accommodation in City K for himself and the children, and had enrolled them at “[D School] for the commencement of the school year in late August 2014” (at [63]).
f)	His travel was significantly reduced and he would now “only need to travel internationally for 15% of the time … to Latin America, Canada and China” (at [64]), and his parents or sisters could travel from France to take care of the children.
g)	In the event that the wife and children were to remain in Australia he was “concerned” at how much time he would be able to spend with the children given his work and travel commitments, he being “only entitled to 4 weeks leave each year”, and the cost of travelling between the USA and Australia (at [66]).
31.	Her Honour then recorded the evidence of the immigration lawyers Mr V (on behalf of the wife) and Ms K (on behalf of the husband).  Both Mr V and Ms K agreed as to the process the Department of Immigration (“the Department”) would adopt; namely, issuing a Notice of Intention to Consider Cancellation (which could take some months), the types of visas the wife and children could apply for to enable them to remain in Australia, that the wife should make application for visas for herself and the children sooner rather than later, and as Z was aged 18 years, she would need to apply for a visa in her own right, and would in all probability be successful in obtaining a visa to enable her to remain in Australia to pursue University studies.
32.	Mr V and Ms K differed though on “whether the wife would be successful in obtaining a visa to remain in Australia, particularly a student visa in her own right” (at [70]).  Mr V was of the view that the wife would be successful in such an application and that “the Department would take into consideration the parties [sic] recent separation and the wife’s need to train in order to now financially support herself and the children” (at [72]).  It was Ms K’s view that as the wife had not undertaken any study, and had no educational qualifications, that it was unlikely that she would be successful in such an application.  And further, that the wife would have to satisfy the Department that her “application for a student visa [was] not being used by [her] as a means to remain in Australia rather than because she [was] genuinely proposing to study” (at [74]).
33.	Her Honour then referred to the evidence contained in the family report provided to the court by Ms R, psychologist.  Ms R was concerned about the husband’s “failure to consult” with the wife and children “before deciding to accept the position in the [USA]” (at [83]).  She considered the impact on the children of the loss of the wife as their primary caregiver, and the impact on them of leaving schools where they were well settled.  As to their views on the relocation, both girls were at first pleased at the thought of returning to the USA but after considering what the move would mean were not so enthusiastic, both girls preferring to complete their secondary education in Australia.  Further, both were “confused” that the husband had made comments to the effect that he would not see them if they remained in Australia (at [94]).  Ms R opined that it was in the children’s best interests to remain in Australia until they completed their secondary education.
34.	At [96] her Honour set out an exchange between counsel for the husband and Ms R wherein counsel suggested that in light of the wife not having made application for visas for the children, and where the husband had made arrangements for the children’s education in the USA, the uncertainty surrounding their remaining in Australia, and the stress associated with that, would be done away with if the children relocated with the husband to the USA, and that such a move was in the children’s best interests, and would provide stability for them.  Ms R’s response to that proposition was “[w]ell, it’s certainly worth considering”.
35.	Her Honour then turned to consider the issue of forum.  It was the husband’s position that the proceedings be stayed on the basis that Australia was a “clearly inappropriate forum to determine the wife’s application” (at [97]), that the application involved “applications for differing types of relief” (at [103]), and the test to be applied when determining the husband’s stay application was one “pursuant to common law principles” (at [104]).  The wife’s position was “that the appropriate test for determining whether the proceeding should be stayed is what is in the children’s best interests” (at [99]).  
36.	According to her Honour the parties agreed “that the parenting matters would be heard separately to the financial matters” (at [105]), because of the husband’s imminent departure from Australia.  Her Honour also confirmed her view that the balance of the proceedings should be transferred to the Family Court of Australia because “the parties’ assets are primarily located in the [USA]” (at [106]).  The real dispute though was about the stay application.  It was the submission of counsel for the husband that the husband’s stay application could not be split, and it was not for “the wife to invoke the jurisdiction of the Court on all matters and then ‘choose the bit that only related to child welfare matters’ on the basis that by so doing it will enable this Court to be found to be the appropriate forum to hear the matter” (at [108]).  Her Honour found that it was “appropriate that the husband’s stay application be considered in the context of the parenting matter only given that is the only matter being determined in this hearing” (at [111]), and that as the orders sought by the wife were parenting orders pursuant to s 64B of the Family Law Act 1975 (Cth) (“the Act”), and section 60CA requires the court to consider the best interests of the children, “then it is that test which will apply when determining the issue of forum” (at [113]-[114]).
37.	Her Honour then turned to consider whether it was in the children’s best interests to have the matter determined in Australia, finding at [126] that the wife and children were “eligible to and have a reasonable prospect of obtaining visas which will enable them to remain in Australia so that [the children] can complete their secondary education”.  Thus, her Honour concluded as follows (at [128]):
In all these circumstances I am satisfied that it is in the best interests of [X] and [Y] that this matter be heard in Australia and accordingly find that Australia is the appropriate forum to determine the wife’s application in relation to parenting matters.
38.	At [137] her Honour found that if she was incorrect as to the test to apply, nevertheless “the most compelling factor when determining whether Australia is the clearly inappropriate forum is the children’s best interests”, and that even if the husband’s stay application had been considered in its entirety it would not have been successful (at [139]).  Further, and in any event, it would be “unfair” to determine the stay in the context of the parenting and financial proceedings, given that “it may well be another Court [would] be more persuaded by the husband’s application to stay proceedings in relation to financial matters” (at [140]).
39.	Her Honour then identified the sections of Part VII of the Act that were relevant here, namely, ss 60B, 60CA, and 60CC.
40.	Her Honour first considered the primary considerations under s 60CC(2) of the Act, and then the additional considerations under s 60CC(3).  As to the latter, her Honour addressed them in turn, but relevant to the appeal we highlight her Honour’s consideration of first, ss 60CC(3)(d) and (e), and then (3)(m) as follows.
41.	Section 60CC(3)(d) and (e) – her Honour considered the evidence of the husband who claimed that even though his new role would be more demanding than his current role in terms of the responsibilities he would assume, he would be able to “adequately care” for the children, and when he had to travel his parents or sisters could travel from France to look after them.  Her Honour found that “the ability of the husband [to be] readily available to provide day to day care for [the children] must be questioned, particularly whilst they are trying to adjust to their new school and the husband is adjusting to his new position” (at [179]).  Further, her Honour noted what Ms R, the family report writer, had said in her report namely, that the wife had “been the primary caregiver for [the children]” and that “despite [the husband’s] best efforts, his full time presence and care is not as possible as it is with the wife” (at [180]).  The husband was also “somewhat reluctant to commit to set arrangements” to see the children should they remain in Australia because of “the practical and financial difficulties” (at [175]).  However, her Honour noted the husband’s evidence that his salary would be in the vicinity of US$285,000, and was satisfied that the husband’s salary, together with the frequent flyer points he had no doubt accumulated over time, meant that he had “the financial capacity to spend regular face to face time with [the children]” (at [176]).
42.	Section 60CC(3)(m) – her Honour revisited the expert evidence given on behalf of the parties by Ms K (for the husband), and Mr V (for the wife) in relation to the visa issue, noting that they differed only in relation to whether or not the wife would be successful in obtaining the visa she sought.  After considering the evidence, her Honour was satisfied that the wife and the children had “a reasonable prospect of obtaining alternate visas that [would] enable them to remain in Australia”, and whatever the outcome they would be able to remain in Australia until the children had completed “their secondary education in 2016” (at [200]).  With regard to the proposition put to 
Ms R by counsel for the husband that it was not in the children’s best interests to remain in Australia not knowing whether or not they may have to return to the USA, her Honour found that “the risk flagged … that [the children’s] education will be interrupted during the next two years [was] limited” (at [203]).  In relation to the financial concerns raised by the husband if the wife and children remain in Australia, her Honour found that “[i]f the wife was successful in obtaining a student visa in her own right, she would be able to work up to 40 hours each fortnight” (at [206]), the wife’s spousal maintenance application was yet to be determined, and the parties had “assets well in excess of $1,000,000.00” which would be able to be utilised (at [208]).
43.	Taking all factors into account her Honour was satisfied that it was in the children’s best interests “to remain in Australia with the wife” (at [226]), and that an order should be made for the parties to sign the necessary documents to enable that to occur (at [232]).  Her Honour was further satisfied that an order should be made “for the parties to have equal shared parental responsibility for [the children], for [the children] to live with the wife and for them to spend time with the husband as agreed between the parties and, if possible, for half of the Australia school holidays” (at [231]), and that in light of the orders proposed, the order placing the children’s names on the Watch List should be dismissed.
44.	Finally, her Honour confirmed that the wife’s applications for financial and spousal and child maintenance orders, and the husband’s application for a permanent stay of those applications, would be transferred to the Family Court of Australia for determination.
Grounds of Appeal
45.	In his Amended Notice of Appeal filed on 24 November 2014 the husband set out his grounds of appeal as follows:
1.1	The learned Trial Judge, fell into legal error in that, having determined to only deal with the wife’s application for parenting orders, Her Honour wrongfully also split the husband’s application.  That application, at all times sought that the wife’s application for both parenting and financial orders be dismissed, or stayed, on the basis of inappropriate forum.
1.2	That as a result of the error in 1.1, Her Honour was wrongly influenced and instead of making a determination on the whole of the husband’s application as a preliminary matter, Her Honour dealt with the stay application in the context of the parenting matter only and transferred the financial proceedings including the stay application to the Family Court.
2.	The learned Trial Judge erred in law in failing to give any, or sufficient, reasons as to why Her Honour elected not to deal with the stay application in respect of financial matters and split or compartmentalised the husband’s stay application.
3.	The learned Trial Judge erred at law in applying the wrong principle in respect of the Husbands [sic] stay application as to parenting and property matters.
In the alternative, whichever is the correct principle to be applied, the learned Trial Judge erred based on the following grounds:
4.	Having determined that the capacity for the wife and minor children to obtain visas which may enable them to remain in Australia is central to the matter before the Court, the learned Trial Judge erred at law in that:
4.1	Her Honour made no actual findings as to the difference of opinion in the evidence of the respective parties’ immigration experts;
4.2	To the extent it may be inferred from the reasons Her Honour preferred the evidence of Mr [V], the wife’s expert witness, or, rejected the evidence of Ms [K], the husband’s expert witness, no discernible pathway it [sic] set out, or, can be gleaned from the reasons as to why the evidence of one, was on balance more probable that [sic] the other.
5.	Her Honour erred at law, and in fact, by finding that the wife and minor children will be able to stay in Australia until the [children] complete their secondary education in that her Honour took into consideration and gave primary weight to matters about which there was no evidence including:
5.1	The availability and duration of any immigration appeals process;
	5.2	The availability of bridging visas.
5.3	The wife’s desire or intent to undertake any or all avenues of appeal as may be potentially available to her and or the children
5A	Her Honour erred in law by speculating about, and, improperly taking into account, an extraneous matter being the possible use and abuse by the wife of the immigration and court appeals process for the purpose of achieving a delay during which delay the minor children might complete their secondary education in Australia.
6.	Having summarised the evidence of the Husband and Wife, which evidence included relevant factual differences, Her Honour erred at law in that no findings were made as to the differences, or at all, so that it is not possible to discern what weight, if any, Her Honour gave to the evidence which may have influenced the findings generally under Sec 60 CA, Sec 60 CC and Sec 65DAA of the Family Law Act.
7.	As a consequence of Her Honour’s erroneous findings as to the capacity of the wife and minor children to remain in Australia, as set out in grounds 4 and 5 herein, Her Honour gave no, or very limited, weight to the oral evidence of the family report writer, [Ms R].
8.	Her Honour gave no, or little weight to the evidence and or submissions on behalf of the husband relevant to:
8.1	matters set out as additional considerations pursuant to
Sec 60 CC(3)(m) of the Family Law Act.
8.2	the Husband’s new salary and the financial costs of the wife and children as overseas students remaining in Australia;
8.3	the fact that none of the Husband’s financial evidence was challenged;
8.4	the fact that as at the date of trial there was no evidence of any, or which type of, visa applications was [sic] proposed to be made by the wife
8.5	that in the event that the Wife and children may be required to return to the US, there was no, or insufficient, evidence as to
8.5.1	wife’s proposals about, inter alia, where it was that the children would live, go to school, wife’s employment etc;
8.5.2	the [children’s] wishes as to where in the United States they might return to.
8.6 	the oral evidence of the Family report writer and its impact on the matters set out in 8.5 herein.
9.	The learned Trial Judge drew inferences favouring the wife in the absence of any evidentiary basis for doing so.
10	As a consequence of the matters raised in grounds 4 to 9 inclusive herein, the learned Trial Judge erred in fact and law:
	10.1	in the exercising of her discretion, and;
10.2	in giving no or insufficient reasons for the exercise of that discretion.
Discussion
Grounds 4, 5 and 5A
46.	It is convenient to initially address these grounds compendiously.
47.	At [32] her Honour accurately identified the issue upon which her decision not only as to the appropriate forum, but also as to the parenting orders to be made, depended, namely, the capacity of the wife and children “to obtain visas which [would] enable them to remain in Australia”.  Her Honour recognised that issue as “central to the matters before [the court]”.
48.	As referred to above, Mr V gave expert evidence as to this issue on behalf of the wife, and Ms K on behalf of the husband.  Her Honour summarised their evidence at [67] to [81].  Significantly, at [70] her Honour acknowledged that the experts “differed … as to whether the wife would be successful in obtaining a visa to remain in Australia”; Mr V suggesting that she was likely to be successful, and Ms K suggesting the opposite.  Her Honour then pronounced at [126], [127], and again at [200], that she was “satisfied that it will be possible for the wife and children to remain in Australia until such time as “[the children] complete their secondary education in 2016.”
49.	However, as counsel for the husband submits, nowhere did her Honour make a finding as to the expert evidence that she preferred.  Thus, there is no apparent basis on which her Honour could then find that it was possible for the wife and the children to remain in Australia until the children completed their secondary education, and that conclusion must be tainted and considered unsafe.  We observe that this also undermines her Honour’s conclusions as to what parenting orders to put in place given that they too were dependent on her Honour’s finding that the wife and the children could remain in Australia.
50.	This alone is fatal to her Honour’s decision, but, as also submitted by the husband’s counsel, even if it can be inferred that her Honour accepted the evidence of Mr V, her Honour failed to provide any reasons for doing so.  It is axiomatic that a trial judge must state his or her reasons for deciding as he or she does, and that his or her failure to do so can constitute an error of law.  Here her Honour has plainly erred given neither the parties nor the court is “…able to discern either expressly or by implication the path by which the result has been reached” (Bennett & Bennett (1991) FLC 92-191 at 78,267).
51.	Thus, there is merit in Ground 4.
52.	As to Ground 5, although there was the evidence of the experts, and of the parties themselves, that evidence did not address whether the wife would pursue “avenues of review or court appeal until all options are exhausted” (at paragraph 17 of the husband’s written submissions), and further, if such a process was undertaken, that it would take such time as would enable the children to complete their secondary education in 2016.  The importance of this can be seen in her Honour’s conclusion that it would be possible for the wife and the children to remain in Australia for the requisite period of time.  In other words, there was no evidentiary basis for this conclusion, and again we find merit in this ground of appeal.
53.	Beyond the absence of an evidentiary basis as just discussed, we are not persuaded that otherwise there is merit in Ground 5A.  In other words, if there had been evidence of the wife’s willingness to pursue all options open to her and the children, and of the time it would take to pursue those options, we see nothing wrong with her Honour taking that into account; if the wife has a right of review or an avenue of appeal, she is entitled to exercise those rights regardless of whether that will cause a delay in the finalisation of the process.
Grounds 1.1, 1.2, 2 and 3
54.	The complaints raised in these grounds of appeal can also be appropriately addressed together.
55.	The primary issue here is whether her Honour fell into error by only considering the forum question in relation to the parenting orders, and not in relation to the entirety of the proceedings before the court.
56.	It is conceded by the husband that if her Honour was correct in splitting the forum question in the way that she did, her Honour applied the correct test, namely what is in the best interests of the children (Pascarl & Oxley (Edited) (2013) FLC 93-536 at [81]; Zanda & Zanda (2014) FLC 93-607 at [106] to [108]).  It is also beyond doubt that if her Honour had not split the forum question as she did, then the correct test to be applied is that of the common law, namely whether Australia is the clearly inappropriate forum (Voth & Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; Henry v Henry (1996) 185 CLR 571), which test, if children are involved, would include a consideration of their best interests (Kwon & Lee (2006) FLC 93-287).
57.	With respect to counsel for the husband, she struggled to explain why it was not open to her Honour to split the forum question.  Counsel submitted that the authorities established a principle to that effect, and referred us to the case of Dobson & Van Londen (2005) FLC 93-225.  There, the husband had commenced proceedings in Australia seeking orders as to property settlement and contact with the children (who were in the Netherlands with the wife), and the wife commenced proceedings in the Netherlands seeking orders for divorce, property settlement, spousal and child maintenance.  The trial judge granted the husband an injunction against the wife pursuing the property settlement proceedings in the Netherlands.  The husband appealed and the Full Court allowed the appeal, re-exercised the discretion, and granted the husband an injunction in relation to not only the property settlement proceedings but the spousal and child maintenance proceedings.
58.	However, the clear basis on which the Full Court came to the decision was not that there was a principle against splitting the forum question, but in the exercise of the discretion reposed in the court, and taking into account all relevant considerations, the financial proceedings should be heard in Australia (see Dobson & Van Londen at 79,715-79,716).  Indeed, there was no question in that case of splitting the forum issue; the question was as to whether the wife’s proceedings in the Netherlands were “vexatious and oppressive”.  The Full Court held that they were.
59.	Thus, that case does not assist the husband’s argument.  Indeed, it confirms that the exercise her Honour undertook here was a discretionary one, and the difficulty for the husband is that it has not been demonstrated to us that her Honour erred in the exercise of that discretion.
60.	The closest counsel for the husband came to addressing the question in this way was in oral submissions to suggest that splitting the forum question was “oppressive and prejudicial” (relying on the decision of the High Court in Henry v Henry).  It was said that because the parenting proceedings will take place in Australia, and the wife is in Australia, it would be clearly open to the Family Court of Australia to decide that Australia is not a clearly inappropriate forum in relation to the property proceedings.
61.	However, we are not persuaded by this argument.  Indeed, we consider that the husband may very well have a stronger case to succeed on the forum issue if the relevant proceedings are limited to the financial proceedings, than if the forum issue had not been split.  We say that because, as was correctly recognised by her Honour at [129] and as we have identified in [56], even where the common law principles are applied because there are differing types of relief sought, the children’s best interests “will often be a significant and weighty matter to be taken into account in determining the appropriate forum to determine the application before the court” (citing Pascarl & Oxley).
62.	As her Honour found, this indeed was a case where the best interests of the children were the most compelling factor (at [137]-[139]).  However, if the proceedings under consideration are only financial then the best interests of the children would not come into contemplation.
63.	Thus, we find no merit in Grounds 1.1 and 1.2.  It is open to a trial judge in the exercise of their discretion to split the forum question.
64.	As to Ground 2, we are also not persuaded that her Honour has erred.  Her Honour provided adequate reasons at [138] to [140] for splitting the forum question in the way that she did.
65.	Finally, in relation to Ground 3, we consider it unnecessary to address that ground.  It can go nowhere; it proceeds on the basis that if her Honour had erred in splitting the forum question, the appropriate test was to apply common law principles, namely the clearly inappropriate forum test.  However, we have found that her Honour did not err in splitting the forum question.
Grounds 6 – 10
66.	In light of our conclusion as to the merit of Grounds 4 and 5 we consider it unnecessary, and indeed inappropriate, to address these grounds of appeal. They all relate to the parenting orders made by her Honour and raise complaints of a lack of findings and a lack of reasons, but primarily comprise challenges to the weight attached by her Honour (or not attached as the case may be) to the evidence the parties and of the family report writer, and to the inferences that can be drawn therefrom.  
67.	Given that the success of Grounds 4 and 5 must result in all orders, apart from the order transferring the balance of the proceedings to the Family Court of Australia, being set aside, and the proceedings remitted to the Federal Circuit Court of Australia for rehearing, including obviously the parenting issues, it would not be appropriate for this court to address the grounds relating to those issues; it, and the forum question, will be the subject of evidence (including updating evidence) before the Federal Circuit Court of Australia. Thus it may be prejudicial to one or other of the parties for anything to be said by this Court as to how her Honour dealt with those matters.
68.	In saying this we are mindful of what the High Court said in Kuru v New South Wales (2008) 236 CLR 1 at 6 as to the need for an intermediate court of appeal to address all of the grounds of appeal given the possibility of an appeal to the High Court.  However, we do not understand that to be a requirement that must be fulfilled in all cases, and for the reasons we have expressed we consider that it should not apply here.
Conclusion
69.	We have found merit in Grounds 4 and 5, and accordingly the appeal must be allowed.
70.	As can be seen, we have found that her Honour’s decision as to forum is tainted and unsafe, and that plainly infects the parenting orders that her Honour has made.  Accordingly, and as already indicated, all orders, apart from the order transferring the balance of the proceedings to the Family Court of Australia, must be set aside; we are not in a position to re-exercise the discretion given, for example, the lack of findings as to the evidence of the experts, and the concomitant lack of reasons.  
71.	As to the order transferring part of the proceedings to the Family Court of Australia, although that order is appealed against, there is no ground of appeal directed to it.  Of course, it could be said that it is linked to the challenge to her Honour’s splitting of the forum question, but as we have found no merit in that challenge, any complaint about the transfer also falls away.  
72.	We do need to say something though about the order for transfer.  With a remittal of the parenting aspects of the proceedings (including forum), there would then be proceedings between the same parties in two separate courts, the Family Court of Australia and the Federal Circuit Court of Australia.  Thus, we recommend that the Federal Circuit Court of Australia transfer the proceedings that will be before it to the Family Court of Australia rather than embark on a rehearing.  That way all matters will be before the one court.
Applications to adduce further evidence
73.	On 12 November 2014 the husband filed an application in an appeal, supported by an affidavit of the same date, seeking expedition of the appeal, (which application was dealt with on 19 November 2014) and seeking to adduce further evidence in the appeal.
74.	The further evidence sought to be adduced by the husband is set out at paragraphs 44 to 47 of his affidavit, and incorporates a further affidavit of his immigration expert, Ms K, which is Annexure A to his affidavit.  Ms K’s affidavit primarily goes to the consequences of the wife not applying for visas for herself and the children within the timelines prescribed in the Migration Act 1958 (Cth) and the Regulations made under that Act.
75.	On 23 December 2014 the wife filed an application in an appeal seeking leave to “file fresh evidence”.  That evidence comprised a brief affidavit of her solicitor, but more significantly a foreshadowed affidavit of her immigration expert, Mr V, and as it turned out an affidavit of the wife (both ultimately handed to us at the hearing of this appeal).
76.	As with Ms K’s affidavit, these affidavits relied upon by the wife primarily addressed what the wife and the children had done in relation to obtaining visas to be able to remain in Australia, and the prospects of applications in that regard.
77.	Although the husband indicated that he would want to file an affidavit or affidavits responding to the late affidavits sought to be relied upon by the wife, both parties were content to have this further evidence before us.  However, even if we allowed this to occur, given that the evidence is highly controversial, we would not be able to address it.  In any event, given that the outcome of this appeal is a remittal of the proceedings, and a rehearing, that evidence will be able to be adduced at that rehearing.  We consider that that is the appropriate course given that the husband’s counsel was unable to persuade us that the further evidence (if received) would have demonstrated error by the trial judge (CDJ v VAJ (1998) 197 CLR 172 at [109]); the evidence was clearly only relevant on either a re-exercise of the discretion, or a rehearing.
78.	Thus, we propose to dismiss these applications.
Costs
79.	At the conclusion of the hearing we received submissions as to the question of costs depending on the outcome of the appeal.
80.	If the appeal is successful the husband seeks costs against the wife, but if no order for costs is made then he seeks costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and for any rehearing.
81.	The wife opposes an order for costs against her if the appeal is successful, but seeks costs certificates for the appeal and for any rehearing.
82.	Given the respective financial circumstances of the parties, and the nature of the appeal itself (there being reasonable bases to both institute the appeal and to oppose it), we consider that each party should bear their own costs.  However, again, given the nature of the appeal, we consider that it is appropriate to issue costs certificates to both parties for the appeal, and for the rehearing.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court, Bryant CJ, Finn and Strickland JJ delivered on 12 February 2015.

Legal Associate:  		     

Date:  12 February 2015