Berryman and Jones and Anor (No 2)

[2010] FamCA 548

FAMILY COURT OF AUSTRALIA

BERRYMAN & JONES AND ANOR (NO. 2) [2010] FamCA 548

FAMILY LAW – CHILDREN – BEST INTERESTS – Application by paternal grandmother for issue of passport for child for overseas travel – Final parenting orders in place that child live with paternal grandmother and she have sole parental responsibility – Relevant factors considered – Dispensation with consent of both mother and father to enable passport to issue 

Constitution ss75, 76, 77
Family Law Act 1975 (Cth) s67ZC

GDPW & IDPW (2004) FLC 93‑206
Minister for Immigration and Multicultural and Indigenous Affairs v B No 3 (2004) 219 CLR 365

APPLICANT: Ms Berryman

FIRST RESPONDENT:	Mr Jones
SECOND RESPONDENT:	Ms Davis

FILE NUMBER: BRC 769 of 2008

DATE DELIVERED: 31 May 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O'Reilly J

HEARING DATE: 31 May 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Shaw
Christine Vachon Solicitor

FIRST RESPONDENT:	In person
SECOND RESPONDENT:	No appearance

Orders

1. The child C born … April 2005 is permitted to leave the Commonwealth of Australia without the written consent of the father Mr Jones or the mother Ms Davis.

2. The requirement of the father’s signature and the mother’s signature on any application for a passport for the child from time to time is dispensed with. 

IT IS NOTED that publication of this judgment under the pseudonym Berryman & Jones and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 769 of 2008

MS BERRYMAN

Applicant

And

MR JONES

First Respondent

And

MS DAVIS
Second Respondent

REASONS FOR JUDGMENT

1. This is an application by Ms Berryman that a passport issue for C born in April 2005 without the need for the consent of the mother and the father and that C be permitted to leave the Commonwealth of Australia notwithstanding that the consent of the mother and the father has not been obtained.

2. Ms Berryman is C’s paternal grandmother. 

3. The father, Mr Jones, the paternal grandmother's son, is in Court today.  He opposes the application for reasons to which I will shortly refer. 

4. Ms Davis, C’s mother, has not appeared in Court today.  I am however satisfied that she has been served with the grandmother’s initiating application filed 5 May 2010, her affidavit in support filed on the same date and a procedural order made on 17 May 2010 by Bell J adjourning the matter from that date which was its original listing date until today.  In this regard I would refer to the affidavit of Mr J, process server, filed 31 May 2010, in particular item 3 relating to the initiating application and affidavit, item 5 as to the date, mode and time of service, which was personal service by hand, and the acknowledgment of service annexed to the affidavit which includes that a copy of the procedural order made 17 May 2010 also was served.  Independently of being satisfied as to service on the mother, for procedural fairness purposes I am satisfied also that the mother has actual knowledge of the relisting of the matter today.  In that regard I would refer to the oral evidence given by the father today of conversations with the mother last evening and twice today in the latter two of which, at least, it is plain from the conversations recorded in the transcript that the mother is well aware that the grandmother’s application in relation to the issue of a passport for the child and that the mother's consent be dispensed with is listed today.  The mother, it appears, missed the train yesterday from B to Brisbane.  There is however no affidavit material filed by the mother, no response to the application and no communication from her to the Court this morning seeking adjournment, for example, on the basis that she intended to be here and has opposition to the substance of the application.  I am aware however that the mother does oppose the application as the father has stated such.

5. The usual provision of the Family Law Act1975 (Cth) (the Act) under which these types of applications are considered is s 67ZC. However, as the High Court pointed out in Minister for Immigration and Multicultural and Indigenous Affairs and B (No 3) (2004) 219 CLR 365, that provision does not itself expressly give jurisdiction in respect of a matter for the purpose of s 75 to s 77 of the Constitution, and that the valid application of that provision therefore depends upon some other provision in Part VII of the Act creating a matter within the meaning of s 75 or s 76 of the Constitution to which the jurisdiction conferred by s 67ZC can attach or be inferentially linked.

6. In relation to that decision I refer to my own decision in GDPW v IDPW (2004) FLC 93-206 at pars 4-5 where, after referring to that High Court authority and the parts of it to which I have just referred, I said (par 5):

   In the absence of authority on the point, it seems to me that s 61C(1) in Part VII of the Act may be a provision which creates a “matter” to which s 67ZC can attach, by imposing on parents the duty of parental responsibility. It seems to me that the arrangement by a parent for the issuing to a child of a passport to enable the child to participate in overseas travel is a quite ordinary incident of parental responsibility, and a matter concerning a child's welfare.

7. Since that decision there have been considerable amendments to the Act which commenced on 1 July 2006. However, s 61C in Part VII of the Act has remained. Although amended in 2006, nonetheless, it still provides that each of the parents of a child who is not 18 years has parental responsibility for the child. I would draw attention also to s 61C(3), which provides that subsection (1) has effect subject to any order of a Court for the time being in force whether or not made under the Act.

8. There is also now, in these types of applications, the potential operation of s 61DA of the Act which raises the rebuttable presumption of equal shared parental responsibility when making parenting orders on the basis that under s 64B(2) parenting orders may deal with “any other aspect” of the welfare of a child or parental responsibility for a child. I do not think it is necessary however to look for any source of jurisdictional power other than s 67ZC, as I have explained it, the matter inferentially linked being the ordinary incidence of parental responsibility under s 61C.

9. In relation to s 67ZC it is fundamental that I mention that although it provides jurisdiction to make orders relating to the welfare of a child, by s 67ZC(2), in deciding whether to make an order under subsection (1) in relation to a child the Court must regard the best interests of the child as the paramount consideration.  Thus, unlike in relation to s 68B, which has troubled the Court as a welfare provision with uncertainty as to whether the best interests of the child does not apply at all, is relevant but not paramount, or paramount, there is no such troubling in relation to s67ZC which spells out that in considering the welfare of a child for the purpose of that provision the best interests of the child is the paramount consideration.

10. The result is that I am required, in determining the child’s best interests in relation to the grandmother’s application, to consider and apply each of the relevant provisions of s60CC because that is what the statute has provided I must do in order to determine what is in a child's best interests.  A cursory glance at those provisions shows that most of them are not relevant to this type of application, as opposed to living with and spending time with arrangements.  However, the statutory mandate is one I must follow.  Before doing so, however, it is appropriate that I make observation upon some of the more traditional things that the judges have decided are relevant in these types of applications. 

11. The child is five years.  She attends the preparatory school at C School in Brisbane.  Her father lives on Brisbane's northern outskirts.  Her mother lives at or near B, three hours from Brisbane. 

12. Throughout 2009 there were child proceedings concerning C before Bell J which did not result in the making of final orders concerning her.  On 22 January 2010, however, his Honour was satisfied with some proposed parenting orders concerning the child and made those orders as final orders providing reasons for judgment of the same date. 

13. The orders provide that the child live with her grandmother, that the grandmother be solely responsible for decision making in relation to the child,  that the child spend time and communicate with the mother at reasonable times as agreed between the mother and the grandmother or otherwise as set out in the order which specifies times in relation to the Easter, June/July, September/October and December/January school holidays; and that the child spend time with and communicate with the father, provided that he is not affected by alcohol or drugs, at times agreed between the father and the grandmother or otherwise as set out in the order which specifies two out of each three weekends and holiday periods similar to those with the mother.

14. His Honour's reasons do not appear expressly to refer to any relationship between the father and alcohol and drugs.  At par 12 however his Honour made observations concerning the father in the context of the matters there referred to. 

15. The grandmother deposes that she is in the habit of spending her holidays in France each year visiting friends and improving her language skills.  This year she proposes to take the child with her to Europe departing on 4 July 2010 and arriving home on 24 July 2010 and has annexed a flight schedule and Qantas itinerary to that effect.  She deposes, as is self-evident, that the travel period does not coincide with any of the school holiday periods which, pursuant to the orders, the child is to spend with her parents.

16. She deposes that the child is doing well at school and enjoys it greatly.  She deposes that she and her husband Mr Berryman own property in Australia and are both in permanent employment.  She is employed by the local Council.  She deposes that her family lives in Brisbane, as does her husband's family.   In this year, 2010, while her husband will not be travelling to Europe with her, she and her husband have another trip planned for 2011 and it is hoped by both of them to take the child with them at that stage.

17. She deposes that the mother and the father both have her mobile telephone number and will be able to contact the child by telephone at all times during any absence and that at this stage while she has not arranged accommodation while in Europe she proposes to provide that to both the mother and the father as soon as it is arranged.  Further, she will ensure that the child calls both of her parents on a regular basis while away.

18. The father has said that his reason for opposition is that the trip proposed to Europe for three weeks in July, and by implication also the trip planned for next year and future years, would upset the child’s routine.  He points to the circumstance that the child does not know anyone overseas, and that if the application be refused then while the grandmother is overseas the child could live with him for that the three weeks and he could keep her in her routine while the grandmother “goes around the world”.  He said that as the child’s father he is unable to perceive any benefit for her of overseas travel at this stage having regard to the interruption to her routine and her age.

19. Christine Vachon, the grandmother’s solicitor, provided an affidavit annexing a letter from Mr V, Principal, C School, dated 18 May 2010 stating that in his view the school is in the position of being able to offer curriculum materials for the child which will be sufficient for her study while travelling overseas for short periods of time while she is a student and that these materials should be sufficient to ensure that her academic advancement is not impeded by these travel experiences.  Furthermore, he expresses the opinion that the social and emotional development of the child could be enhanced by such experiences and in no way should they be impeded.

20. To grant the grandmother’s application will not interfere with any of the child’s time with the mother or the father.  It would interfere for short periods annually with her school attendance. However, I accept the evidence of the school principal that she will be able to be provided with materials and that such ought not impede her academic advancement. 

21. There is no reason to think, on the evidence, that Mr and Mrs Berryman propose to depart Australia with the child and not return.  Indeed, on the evidence which I accept both of them are well established in Brisbane, both have extended family in Brisbane, both are in employment in Brisbane and for some years now have a pattern and habit of spending their holiday periods in Europe.  As the child is now part of their household, it makes perfect sense to me that she should grow up in that same pattern and routine as her grandparents already have established.

22. Mr and Mrs Berryman also have property in Australia, further underpinning, with the other circumstances I have mentioned, an unlikelihood that if they be permitted to have a passport issued for the child they may be likely to detain her overseas.

23. I turn now to the more specific s60CC factors.  It does not appear to me that either of the primary considerations is triggered by this specific application. The child’s ability to benefit by having a meaningful relationship with both of her parents will not be impeded in any way if the application is granted for the reason that, as I have said, her time away, at least for this year, will not be during the holiday time with her parents.

24. While for the brief intended period of travel the child would not see her mother or father at other times mentioned in the orders, I am satisfied by the evidence of the grandmother that there will be telephone communication in that short period. 

25. The child is too young to express views as to the matter. 

26. The nature of the child's relationship with each parent is not likely to be impeded if the application is granted. 

27. It seems to me that none of the other matters in section 60CC is directly relevant to this particular application. 

28. There remains the observation that pursuant to the final parenting orders made on 22 January 2010 in any event the grandmother has sole parental responsibility for the child. 

29. Having carefully considered the evidence in the case it appears to me that the proper exercise of my discretion is to allow the application as being one in the child’s best interests and I will make orders accordingly.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate:                 

Date:              5 July 2010