Budd and Department of Foreign Affairs and Trade and Anor
[2005] AATA 688
•21 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 688
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/989
GENERAL ADMINISTRATIVE DIVISION ) Re WENDY BUDD Applicant
And
DEPARTMENT OF FOREIGN AFFAIRS and TRADE
First Respondent
And
KEN WILLIAM MITCHELL
Second Respondent
DECISION
Tribunal Mr R G Kenny, Member Date21 July 2004
PlaceBrisbane
Decision The decision under review is set aside and the Tribunal substitutes its decision that Ms Budd’s applications for passports for her children be granted.
..............................................
R G Kenny
Member
CATCHWORDS
Australian passports – application by mother of prescribed minors – father’s refusal to consent –Ministerial guidelines – no contact for a substantial period – special circumstances that enable passports to be issued
Administrative Appeals Tribunal Act 1975 (Cth) ss 34B, 37
Australian Passports Act 2005 (Cth)
Australian Passports (Transitionals and Consequentials) Act 2005
Family Law Act 1975 s 61B, 61C
Passports Act 1938 (Cth) s 5, 7, 7A, 11ADomestic Violence (Family Protection) Act 1989 (Qld)
Re Bateman and Health Insurance Commission (1997) 45 ALD 627 at 637
Tobacco Institute v National Health and Medical Research Council (1996) 142 ALR 1
Beadle v Director-General of Social Security (1985) 60 ALR 225
Re Beadle and Director-General of Social Security (1984) 1 AAR 362
Groth v Secretary, Department of Social Security (1995) 40 ALD 541REASONS FOR DECISION
21 July 2005 Mr R G Kenny, Member Application
1. On 30 July 2004, Wendy Budd (the applicant) lodged child passport applications with the Department of Foreign Affairs and Trade (the first respondent) for her children Ryan Budd, who was born on 5 February 1995, and Eliza Budd, who was born on 24 June 1998. She completed a statement in which she declared that the father of her children was Kenneth William Mitchell and also that his consent to the passport application had not been obtained. By letter, dated 6 August 2004, a Passports Officer with the first respondent notified Mr Mitchell of the applications and invited him to consent to them. In an undated letter of response, Mr Mitchell declined to give his consent. On 6 September 2004, an Approved Senior Officer rejected the passport applications. After a request by Ms Budd for review of that decision, it was affirmed by a Legal Advisor with the first respondent on 2 December 2004 in a decision which, under section 11A of the Passports Act 1938 (the Act), is reviewable by the Administrative Appeals Tribunal (the Tribunal). On 24 December 2004, Ms Budd lodged an application for review with the Tribunal. On 7 February 2005, the Tribunal directed that Mr Mitchell be joined as second respondent to the proceedings in accordance with subsection 30(1A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
Hearing
2. The AAT Act makes provision for a hearing to be conducted in the absence of the parties. In that regard, section 34J of the AAT Act reads:
“If:
(a) it appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties; and
(b) the parties consent to the review being determined without a hearing;
the Tribunal may review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing.”
3. Ms Budd, Mr Mitchell and the first respondent have consented to the matter being determined without a hearing and, in accordance with the terms of section 34J of the AAT Act, I am satisfied that it is appropriate to proceed in that manner.
4. Materials before the Tribunal comprised the documents prepared in accordance with section 37 of the AAT Act (the T documents (T1-T25) as well as:
a letter, dated 4 February 2005, by Samantha Crawford;
a letter, dated 2 February 2005, from Ms Budd’s employer;
a protection order, dated 9 August 1999, under the Domestic Violence (Family Protection) Act 1989 (Qld);
an undated statement by the applicant;
a submission, dated 12 May 2005, by the first respondent.
Issues and Legislation
5. This matter raises the question of whether passports should be issued to Ryan and Eliza despite the refusal by Mr Mitchell, their father, to consent to that outcome.
6. At the time of the initial application by Ms Budd, the issue of passports was regulated by the Act. With effect from 1 July 2005, that Act was repealed and replaced by the Australian Passports Act2005. However, the Australian Passports (Transitionals and Consequentials) Act 2005 makes provision for this matter to be determined under the Act. In accordance with subsection 7(1) of the Act, the Minister or an authorised officer may issue an Australian passport to an Australian citizen. A passport is not to be issued to a prescribed minor, defined in section 5 of the Act as meaning an unmarried person under the age of 18 years, except in the specific circumstances provided for in section 7A of the Act. Subsection 7A(2) of the Act reads:
“An authorized officer may, unless otherwise directed by the Minister, issue an Australian passport to an Australian citizen who is a prescribed minor if:
(a) the minor furnishes to the authorized officer the consent in writing to the issue to the minor of an Australian passport of each person who has a caring responsibility (as defined in subsection (8)) for the minor;
(b) the minor furnishes to the authorized officer a copy of an order of a court made in pursuance of a law of the Commonwealth or of a State or Territory permitting the minor to leave Australia; or
(c) the authorized officer is satisfied:
(i) that the physical or mental welfare of the minor would be adversely affected if an Australian passport were not issued to the minor; or
(ii) that
(A)by reason of a family crisis, the minor urgently requires an Australian passport to enable him or her to travel outside Australia; and
(B) if there is a person who has caring responsibility (as defined in subsection (8)) for the minor whose written consent to the issue to the minor of an Australian passport has not been obtained - that person cannot be readily contacted.”
7. Subsection 7A(8) of the Act provides that a person has a caring responsibility for a prescribed minor if:
“(a)the person is a parent of the minor except where, because of orders made under the Family Law Act 1975, the person no longer has any parental responsibility for the minor;
(b) the person has a residence order in relation to the minor; or
(c) the person has a specific issues order in relation to the minor under which the person is responsible for the minor's long-term or day-to-day care, welfare and development; or
(d) the person has a contact order in relation to the minor; or
(e) the person is entitled to guardianship or custody of, or access to, the minor under a law of the Commonwealth or of a State or a Territory."
8. Subsection 7A(9) of the Act provides that expressions used in section 7A(8) have the same meaning as in the Family Law Act 1975 (the FLA). Section 61B of the FLA defines parental responsibility as meaning "all the duties, powers, responsibilities and authority which, by law, parents have in relation to children". Under section 61C of the FLA, each parent of the child who is not 18 has, subject to any order under that Act, parental responsibility for the child and this is the case despite any changes in the nature of the relationship of the child's parents, including, for example, by the parents becoming separated or either or both of them marrying or re-marrying.
9. Pursuant to subsections 7A(3) to (5) of the Act, a passport may also be issued to a minor where special circumstances exist by reason of which the passport should be issued. Paragraph 7A(4)(a) of the Act provides that, in determining whether such special circumstances exist, the decision-maker shall consider the application having regard to any guidelines issued by the Minister under subsection 7A(6) of the Act. The Minister has published the following guideline pursuant to that provision:
“A passport may be issued to a prescribed minor, as defined in sub-section 5(1) of the Passports Act, if:
(a)a person who may for the purposes of paragraph 7A(2)(a) of that Act give written consent to the issue of a passport to the prescribed minor:
(i) is medically incapable of providing written consent,
(ii) has had no contact with the child for a substantial period of time, or
(iii) cannot be contacted or located within a reasonable period of time; or
(b)there is a legitimate need for a child who is already overseas to return to Australia or travel to another country.”
Applicant’s Contentions
10. Ms Budd is employed by a company with business extensions outside of Australia and she may be required to travel and work for periods overseas. The applications for passports for Ryan and Eliza were made so that they will be able to travel with her during these work commitments and also on any overseas holiday she might have with them. Her passport application in relation to Ryan was dated 28 June 2004 and, for Eliza, it was dated 30 July 2004. Therein, Ms Budd acknowledged that Mr Mitchell is the father of the children and she described his address as being “unknown”. She claimed that Mr Mitchell had had no contact with Ryan for six years and that Mr Mitchell had never met or had contact with Eliza. In a letter to the first respondent, she said that, when she was pregnant with Eliza, she obtained a domestic violence order against Mr Mitchell and that this prevented him from contacting Ryan or her for a period of 12 months. She said that she has not heard from or seen Mr Mitchell since then; that he does not know where she works or where she and the children live; that he does not have any means of contacting her or the children; and that she wanted that situation to continue.
11. Ms Budd said that, because of lack of contact with Mr Mitchell, there had been no reason for her to take any further court action to restrain him or make application for any orders under the FLA in relation to the children. She noted that, in his letter refusing to give his consent to the passports being issued, Mr Mitchell stated that he had seen Ryan three years earlier but she denied the truth of this. Ms Budd also stated that she has never prevented the children from spending time with their father or his family and that Ryan had chosen not to contact them. She said that Eliza does not know Mr Mitchell.
12. Ms Budd contended that special circumstances existed in this matter in that Mr Mitchell has had no contact with the children for a substantial period of time and that, therefore, passports should be issued to the children despite his refusal to consent.
Mr Mitchell’s Contentions
13. Mr Mitchell confirmed that he was the father of Ryan and Eliza and that a protection order was made against him in August 1999. However, he denied that any physical or verbal violence had been involved between him and Ms Budd. He said that he had not challenged the application for a protection order, which was initially made in June 1999, even though the details of the application were false, as he did not have the time or financial resources to do so. He said that he had attended the court when the application was first made in June 1999 but not when the order was issued in August 1999. He said that the order was made after Eliza was born, that he had been present at the birth of Eliza and that, prior to the making of the protection order, he had contact with both children. He said that he is now married and that he and his wife had spent time with the children on holiday on the Sunshine Coast. He said that this regular contact ended when the domestic violence order came into force in August 1999. Mr Mitchell said that Ms Budd had "gone out of her way" to deny him contact with the children but that, nonetheless, he had been in contact with Ryan through the children's grandparents. Mr Mitchell said that Ryan was about 6 years old when he last had contact with him in 2001. He said that this was facilitated by Ms Budd’s father. He said he continued to pay the full amount of child support to Ms Budd for the children but that he had not been able to locate them since they left their previous residence. Mr Mitchell said that his attempts to contact Ms Budd’s mother and other family members to ascertain the whereabouts of the children have been unsuccessful. Since the passport applications were made, Mr Mitchell received a letter from Ryan and would have liked to correspond with him but was unable to do so as there was no return address on his letter.
14. In a letter to the first respondent, he stated that he had done all he could to see the children and that, as a result of the passport application, he would “be going through the courts to apply for contact with the children”.
Other Evidence
15. File material in this matter included a statutory declaration, dated 1 August 1999, and a letter, dated 29 April 2005, from Mr Mitchell’s mother, Roslyn Mitchell. In the declaration, she stated that Ms Budd had telephoned her on 16 January 1999 demanding that Mr Mitchell return Ryan from an access visit. In the letter, Mrs Mitchell said that she last saw Ryan and Eliza in April 1999 when Mr Mitchell brought them to visit. She also said that Ms Budd’s mother had contacted her by telephone on 18 September 2004 and requested that she tell Mr Mitchell to provide his consent to the issue of the passports.
16. Also in evidence were copies of a series of photographs which Mr Mitchell described as depicting him with Ryan and Eliza as well as him with Ms Budd and the children. Additionally, the material included a copy of a protection order, dated 9 August 1999, under the Domestic Violence (Family Protection) Act 1989 (Qld). In its terms, this required Mr Mitchell to refrain from contacting Ryan or Eliza without a written agreement with Ms Budd or an order under the FLA. It provided that communication with Ms Budd could only be through his solicitor and the order was to continue in force until 9 August 2001.
17. A copy of an undated letter written by Ryan to his father was in evidence. It provided no return address. It contained a request that Mr Mitchell consent to the passport applications.
18. Other documents before the Tribunal included a letter from Ms Budd’s employer which advised that she would be required, as part of the company’s expanded activities, to travel abroad. There was also an e-mail message, dated 21 April 2005, from a clerk at the Southport Magistrates Court which stated that both of the parties had appeared in the matter which came before the Court on 28 June 1999. Additionally, there was a letter, dated 6 August 1999, from Mr Mitchell’s solicitor to the Southport Magistrates Court advising that Mr Mitchell would not be appearing on 9 August, that he denied the allegations of Ms Budd but that he consented to the protection order being granted.
Consideration
19. I am satisfied that both Ryan and Eliza are prescribed minors pursuant to subsection 5(1) of the Act. A passport may be issued to a prescribed minor in accordance with the terms of subsection 7A(2) of the Act. Under paragraph (a) thereof, this may be done if consent in writing is provided by each person who has a caring responsibility for the minor. It is not in dispute and I am satisfied that Mr Mitchell is the father, and therefore a parent, of Ryan and Eliza. I am also satisfied that no parenting orders for residence, contact or specific issues have been made under the FLA in relation to the children and that Mr Mitchell has a caring responsibility for them in accordance with paragraph 7A(8)(a) of the Act. Accordingly, Mr Mitchell is a person whose consent is required under paragraph 7A(2)(a) of the Act. Clearly, this has not been given.
20. Alternative bases for issuing a passport are set out in paragraphs 7A(2)(b) and (c) of the Act. These arise where there is an order of a court made in pursuance of a law of the Commonwealth or of a State or Territory permitting the minor to leave Australia; where the physical or mental welfare of the minor would be adversely affected if an Australian passport were not issued to the minor; where, by reason of a family crisis, the minor urgently requires an Australian passport to enable him or her to travel outside Australia; and where the person who has caring responsibility cannot be readily contacted. There is no evidence in this matter which satisfies any of those alternatives and no such contentions have been raised by Ms Budd.
21. A further alternative basis for issuing a passport in this matter arises pursuant to subsections 7A(3) to (5) of the Act whereby this is done if special circumstances exist by reason of which the passport should be issued.
22. Pursuant to paragraph 7A(4)(a) of the Act, the assessment of the circumstances as being special or otherwise in this matter is to be made having regard to any guidelines issued by the Minister under subsection 7A(6) of the Act. Such guidelines have been issued and are set out above. Based as they are on the Act, they have greater status than policy guidelines published, for example, by a government department: see Re Bateman and Health Insurance Commission (1997) 45 ALD 627 at 637. However, the requirement in paragraph 7A(4)(a) of the Act is to have regard to that guideline. In circumstances where, as part of the decision-making process, regard is to be had to particular considerations or matters that are themselves of a substantive kind, such as particular criteria, Finn J, in Tobacco Institute v National Health and Medical Research Council (1996) 142 ALR 1 at 13, referred to the “have regard to” formula in the following way:
In cases of that variety, the “have regard to” formula has been interpreted consistently as requiring that the decision-maker subject to the formula must “take into account” the matter or consideration to which regard is to be had, and must “give weight to” that matter or consideration “as a fundamental element in making the determination”: R v Hunt; ex parte Sean Investments Pty Ltd (1979)25 ALR 497; 53 ALJR 552 at 554 per Mason J ……
23. The relevant guidelines in this case list four considerations. The first and third of these relate to situations where a person in Mr Mitchell’s position is medically incapable of consenting or cannot be contacted or located within a reasonable period of time. The fourth relates to a situation where the minor is already overseas and there is a legitimate need for him or her to return to Australia. I am satisfied that none of those requirements are met in this matter. The second consideration arises where there has been no contact with the child for a substantial period of time and it is this which Ms Budd is relying upon in this matter.
24. I do not accept Ms Budd’s statements that Mr Mitchell has “never met or had contact with” Eliza. Mrs Mitchell said that she saw Mr Mitchell with both Ryan and Eliza in April 1999. Also, Ms Budd said the application for the protection order was made when she was pregnant with Eliza. However, the order was not made until 9 August 1999 which was more than a year after Eliza was born and I accept Mr Mitchell’s evidence that the initial application was dealt with in proceedings in the Southport Magistrates Court in June 1999. Mr Mitchell’s claim is that he had contact with both children prior to the protection order being made and I accept his evidence in that regard. That is consistent with Mrs Mitchell’s statement and with the copies of the photographs, noted above, before the Tribunal. I am unable to be satisfied on the material before me that there was any contact between Mr Mitchell and Eliza after the protection order commenced operation in August 1999. There may have been contact with Ryan in 2001 and, apart from that occasion, I am satisfied that, in the years since the protection order was made, Mr Mitchell wanted to maintain contact but was unable to because Ms Budd moved herself and the children to places unknown to Mr Mitchell. In these proceedings, Ms Budd has requested that no information be given to Mr Mitchell about her current address.
25. Despite the reasons for lack of contact, it is the case, nevertheless, that, by the time of Ms Budd’s applications for the passports, Mr Mitchell had had no contact with Ryan for at least 3 years or with Eliza for 5 years. What amounts to a substantial period of time will vary according to the circumstances of each case. The word substantial in the Concise Oxford Dictionary means: “of real importance or value; of considerable amount”. With Ryan and Eliza, the periods of time without contact in this matter are both considerable and of real importance and, therefore, substantial as referred to in the guideline. This must be given weight in assessing Ms Budd’s applications. However, having regard to the guideline does not mean that its terms must be complied with in all cases. It is to be considered in the context of the statutory test which is that there must be special circumstances by reason of which the passports should be issued.
26. The Act, in itself, provides no guidance as to the meaning of the term special circumstances. In Beadle v Director-General of Social Security (1985) 60 ALR 225 at 228, the Federal Court stated that it was not possible to lay down precise limits or precise rules for the meaning of the term. The Court indicated that this would depend upon the circumstances of each particular case but commented that, even though the term lacks precision, it was sufficiently understood “not to require judicial gloss" .There, the Court affirmed the decision of the Tribunal (Re Beadle and Director-General of Social Security(1984) 1 AAR 362 (at 364) where the Tribunal had acknowledged that the term was "incapable of precise or exhaustive definition" and that, to be special, the circumstances must be “unusual, uncommon or exceptional” and must have a “particular quality of unusualness that permits them to be described as special". In Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545, Keifel J, after referring to the Federal Court's decision in Beadle’s case, observed (at 545) that special circumstances would require something “to distinguish the case from others, to take it out of the usual or ordinary case”.
27. One circumstance that meets that requirement in this case is the length of time without contact when that is considered in the context of the ages of the children. Another such circumstance is the history between Mr Mitchell, Ms Budd and the children in the context of a protection order made under domestic violence legislation. While I have noted Mr Mitchell’s denial of violence, it is also the situation that he consented to the order being made. Further, despite his intention, declared in his letter to the first respondent almost 12 months ago, to apply for contact, Mr Mitchell has taken no steps to seek appropriate orders under the FLA which may enable him to have contact in some form. Finally, there is evidence from Ms Budd’s employer that she will be required to travel overseas as part of the company’s expanded operations. I am satisfied that these factors, taken together, constitute circumstances that take these passport applications outside of the usual or ordinary case and give them the quality of unusualness that permits them to be described as special. In making that decision, I am also mindful of the legislative purpose of section 7A of the Act. It was added in 1979 by Act No 103 of 1979. In the Second Reading Speech, the then Minister for Foreign Affairs said that its purpose was to strengthen existing provisions in the Act to reduce the incidence of children being removed from Australia by one parent without the knowledge, or against the wishes, of the other parent: (Hansard, House or Representatives, 7 March 1979 at 708). However, the Act expressly enables that purpose to be overcome where special circumstances exist.
Decision
28. The decision under review is set aside and the Tribunal substitutes its decision that Ms Budd’s applications for passports for her children be granted.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: Jeff Mills
Legal Research Officer
This Matter was heard on the Papers
Date of Decision 21 July 2005
For the Applicant Ms W BuddFor the 1st Respondent Ms F Potter, Australian Government Solicitor’s Office
For the 2nd Respondent Mr KW Mitchell
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