[2025] EWHC 2219 (Fam)
Family Division of the High Court

[2025] EWHC 2219 (Fam)

Fecha: 26-Ago-2025

It is clear from a number of authorities (including Re T (Abduction: Protective Measures: Agreement to Return ) per Cobb J (as he then was) at [47]) that at final hearing the court is required to exam

73)

It is clear from a number of authorities (including Re T (Abduction: Protective Measures: Agreement to Return) per Cobb J (as he then was) at [47]) that at final hearing the court is required to examine “in concrete terms” the situation which would face a child on a return being ordered.

74)

As. Ms. Kumar emphasised this is an unusual (if not a novel) case in that neither party (nor A) is an Australian citizen. They are both British citizens, as is A. They are reliant on temporary visas to regulate their position in Australia. F does not have permanent residency.

75)

The key parts of Ms. Souvlakis’ report dated 17th July 2025 (and her answer to the parties’ written questions) can be summarised as follows:

a)

in January 2023 F commenced employment in Australia as a holder of a Skills-in-Demand (sub-class 482) visa;

b)

in January 2025 F applied for a new SC 382 visa for himself, M and A. This was granted to all three applicants on 20th April 2025 and expires on 30th April 2029;

c)

at the time the visa was applied for and granted the parties were not ‘de facto partners’ in a ‘de facto relationship’ as defined by the Migration Act 1958 s5CB. As such the parties did not satisfy the criteria for the grant of the visa;

d)

this does not, however, affect the visa which is “likely in effect and valid as at present” (quotation taken from the “key findings”) and this can be confirmed online at any time. As is stated later in the report “[t]he visa cannot be deemed invalid after it has been granted, it can only be cancelled if specific grounds for cancellation are found to exist”;

e)

M and A can therefore enter Australia on this visa now;

f)

however there is “likelihood” that M and A could be stopped at the airport upon entry in Australia for further questioning. This is “particularly relevant” if the Australian Federal Police and/or the Department of Home Affairs have been informed of the proceedings, the breakdown of the parties’ relationship, and/or if M and/or A is included in an airport watch list at the time of arrival. In her answers to written questions, Ms. Souvlakis noted the risk of M and A being detained at the airport was “somewhat higher” given they had not entered Australia since April 2024 (although this was qualified by Ms. Souvlakis stating that “this could also be affected by other facts, such as specific information available to the ABF at time of arrival”);

g)

there is also “likelihood” that if the Department of Home Affairs do not presently have any information on record M may be able to enter Australia with no issues and remain onshore for the remainder of the visa period;

h)

the circumstances leading to the application for and grant of the visa “are relevant in determining the risk associated with this visa being cancelled” (quotation taken from the “key findings”) either before or after M enters Australia;

i)

there is “moderate risk” (as above) of visa cancellation should the Department of Home Affairs determine that the information provided in the application as to the parties’ relationship status was incorrect; and

j)

M has “reasonable grounds” (as above) to challenge any cancellation of her visa.

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