EDGERTON & RICKARD

[2014] FCCA 2268

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDGERTON & RICKARD [2014] FCCA 2268

Catchwords:
FAMILY LAW – Children – application for child to live with mother – best interests of the child – parental responsibility – sole parental responsibility – where child has special needs.

FAMILY LAW – Children – application for leave to apply for Australian passport for child – where mother and child currently in (country omitted).

PRACTICE & PROCEDURE – Jurisdiction – where the child the subject of the application is not present in Australia – where child is an Australian citizen – Federal Circuit Court has jurisdiction to hear the Application.

WORDS & PHRASES – “Travelling internationally” in Australian Passports Act 2005 (Cth) s.11 means travelling from one country to another – it refers equally to travelling from Australia to a foreign country and travelling from a foreign country to Australia.

Legislation:

Australian Passports Act 2005 (Cth), s.11

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 61DB, 69E

Cases cited:
Murray & Gibb [2011] FMCAfam 1485

Applicant: MS EDGERTON

Respondent: MR RICKARD

File Number: SYC 514 of 2014

Judgment of: Judge Scarlett

Hearing date: 30 September 2014

Date of Last Submission: 30 September 2014

Delivered at: Sydney

Delivered on: 30 September 2014

REPRESENTATION

Solicitor for the Applicant: Ms Abdelraheem (as agent)

Solicitors for the Applicant: Edgeworth Legal Pty Ltd

Solicitor for the Respondent: Mr Velcic

Solicitors for the Respondent: Nikola Velcic & Associates

ORDERS

UNTIL FURTHER ORDER

1. The Applicant Mother is to have sole parental responsibility for the child X born (omitted) 2005.

2. The Applicant Mother is permitted to apply for an Australian passport for the child X born (omitted) 2005 without the need for the consent of the Father.

3. The Application is adjourned to 18 November 2014 for mention only in Court 3A at 10:00 am.

IT IS NOTED that publication of this judgment under the pseudonym Edgerton & Rickard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 514 of 2014

MS EDGERTON

Applicant

And

MR RICKARD

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Mother of a little girl called X, for orders that the child should live with her and she should have sole parental responsibility for her. Whilst there is no specific order sought in the Mother’s Amended Application filed on 11^th July 2014, what the Mother also needs is to be able to obtain an Australian passport for the child. At present, the Mother and the child are in (country omitted), and the Mother claims that she cannot return to live in Australia because the child’s passport has expired and the Father will not consent to an application that to renew the child’s passport.

2. The Respondent Father seeks only a final order that the parties should have joint parental responsibility for the child. His solicitor, Mr Velcic, has told the Court that his client has instructed him to consent to an order that will renew the child’s passport.  

Background

1. The parties, are at issue about the circumstances that led to the Mother and child travelling to (country omitted) and being, as the Mother claims, unable to return to Australia.  However, there is no issue about a number of relevant facts.

2. The Applicant Mother was born on (omitted) 1986.

3. The Respondent Father was born on (omitted) 1982. He is an Australian citizen.

4. The parties were married on (omitted) 2004. There is one child of the marriage, a girl called X, who was born on (omitted) 2005.

5. The parties separated on 10^th August 2010 and were divorced by Order of this Court made on 22^nd August 2013. The Divorce Order took effect on 23^rd September 2013.

6. The child X suffers from a genetic condition called 1p36 deletion syndrome, which is a disorder that can cause intellectual disability. The Mother has annexed reports from various medical professionals in (country omitted) which have been translated into English, showing that the child has:

   a)verbal language disorders linked to motor perceptive immaturity, giving her a level of oral language comprehension equivalent to a person aged between three years and three years and six months;

   b)generalised muscle tone weakness;

   c)complex heart problems; and

   d)general motor delay.

7. It is the Mother’s evidence, but denied by the Father, that the Father coerced her into taking the child to (country omitted) for a short holiday. However, the Father only booked them single airline tickets and, when she asked him to book tickets for her and the child to return to Sydney, he refused.

8. The child’s Australian passport has now expired, and she cannot travel without a valid passport. The Father has not, up to now, signed the necessary consent form to permit the child’s passport to be renewed.

9. The Mother has returned to Australia on one occasion since she went away, in order to commence legal proceedings, including a divorce, but she had to leave the child with relatives in (country omitted).

10. The Mother wishes to return to Australia with the child, and has deposed in her affidavit that the child will receive better care and medical attention in Sydney.

11. The Father’s account, as deposed in his affidavit of 7^th August 2014, is quite different. He denies that he was requested to renew the child’s passport or to book a flight for her to return to Sydney. He deposes that he is not aware of the issues relating to his daughter and he does not know where in (country omitted) she is. He states that he is extremely concerned about the welfare of his daughter.     

Returning the child to Australia

1. The Father’s solicitor, Mr Velcic, obtained instructions from his client over the telephone that his client would consent to the issue of a new passport for the child and would in fact pay the child’s airfare back to Australia. The offer was not extended to the Mother, who will have to find her own airfare.

Renewing the Child’s Passport

1. Noting the lack of communication between the parties and the fact that the Mother is currently in (country omitted) with the child, the details of how the Mother can obtain a renewal of the child’s passport need to be given some serious consideration.

2. In my view, the best way is for the Mother to have an order from the Court that she can take to the appropriate Australian Consulate to apply to renew the child’s passport.

3. Even though the child is currently in (country omitted) and has been for several years, the Court has jurisdiction to make a parenting order in relation to her. I considered the question of a child in this situation in the matter of Murray & Gibb[1] at [20]-[21], [24]-[25].

   [1] [2011] FMCAfam 1485

4. The Mother’s Application seeks parenting orders in relation to the child X who, at the time of hearing, is located in (country omitted). Section 69E of the Family Law Act 1975 (Cth) provides (relevantly) that:

   Proceedings may be instituted under this Act in relation to a child only if:

   … (b)the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or

   (c)a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day;…

5. The term “relevant day” is defined by s. 69E(2) to be the day on which the application is filed in a court or the day on which the application instituting the proceedings is made.

6. Where a party is applying for a parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (s.60CA of the Family Law Act). The Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of s. 60CC of the Act.

7. Subsection 61DA(1) of the Act requires the Court, when making a parenting order in relation to a child, to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in cases of abuse or family violence and may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental; responsibility (.61DA(4)). 

8. Where a child does not have an Australian passport, either each person who has parental responsibility for the child must consent to a passport being issued or there must be a court order allowing one party to apply for a passport for the child.

9. Subsection 11(1) of the Australian Passports Act 2005 (Cth) provides that:

   The Minister must not issue an Australian passport to a child unless:

   (a)each person who has parental responsibility for the child consents to the child travelling internationally; or

   (b)an order of a court of the Commonwealth, a State or a Territory permits the child to travel internationally.

10. Subsection 11(4) of the Act explains that:

    For the purposes of subsection (1), a reference to:

    (a)a person consenting to a child travelling internationally includes a reference to a person consenting to the issue of an Australian passport to the child; or

    (b)an order of a court permitting a child to travel internationally includes a reference to an order permitting:

    (i)     the issue of an Australian passport to the child; or

    (ii)contact outside Australia between the child and another person.

11. The Court has jurisdiction under s.69E of the Act because the child is an Australian citizen. The child’s father is an Australian citizen.

12. The Court must consider the best interests of the child as the paramount consideration. There is evidence that satisfies the Court that it is in the child’s best interests to return to live in Australia, because of the availability of medical and other treatment to suit the child’s special needs, and also because it will enable some steps to be taken to allow her to develop a relationship with her father, who lives in Australia.

13. In my view, the current poor state of communication between the child’s parents and the fact the Father has not seen the child since 2010 indicate that, at this stage, equal shared parental responsibility is not a viable proposition.

14. I am satisfied that it is currently not in this child’s best interests for her parents to have equal shared parental responsibility for her. I intend to make an order that, until further order, the Mother is to have sole parental responsibility for X. This situation will be considered afresh when the Court is looking at making final parenting orders, because s.61DB provides that, in making a final parenting order, the Court must disregard the allocation of parental responsibility made in the interim order.

15. There is a clear need for this child to be issued with an Australian passport. Her mother will have sole parental responsibility so that she may apply for a passport for the child.

16. In my view, the reference to “travelling internationally” in s.11 of the Australian Passports Act means both:

    a)travel out of Australia to a foreign country; and

    b)travel from a foreign country to Australia.

17. The phrase “travelling internationally” is not defined in the Act. I am satisfied that it should be given its ordinary English meaning of travelling from one country to another.

18. The evidence shows that this child requires an Australian passport to return to Australia, and her mother should be given the power by means of an order of this Court to renew her passport for her.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  30 September 2014