GDPW & IDPW

[2004] FamCA 1236

[2004] FamCA 1236

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT BRISBANE  No. BRF6881 of 1995

IN THE MATTER OF:	G DP W	Applicant
AND	I DP W	Respondent

REASONS FOR JUDGMENT

EX TEMPORE

CORAM:	O'REILLY J
DATE OF HEARING:	20 September 2004
DATE OF JUDGMENT:	20 September 2004

Name of Case:          G DP W v I DP W    

File Number:            BRF6881 of 1995
Date of Hearing:       20 September 2004
Date of Judgement:   20 September 2004
Coram:  O’Reilly J

Catchwords:               FAMILY LAW – CHILDREN – Jurisdiction of the Family Court of Australia – Passport Orders – ‘Parens Patriae’ – Welfare  

Legislation:                Australian Constitution ss 75, 76 & 77

Passports Act 1938 (Cth) s7A

Family Law Act 1975 (Cth) ss 61C(1), 67ZC, 114

Cases Considered:     Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20

The parties married in 1989 and divorced in 1996.  There were two children of the marriage aged 12 and 14 years.  The mother had residence of the children and wished to take them to New Zealand for a holiday.  The father had been estranged from the mother and the children for many years.

When applying for the children’s passport, s 7A of the Passports Act 1938 (Cth) requires the father’s consent and signature on the applications. Attempts by the mother to ascertain the father’s consent to the application were unsuccessful.

As a result the mother sought an urgent order that the children be permitted to leave the Commonwealth of Australia without the consent of the father, and the application be listed at the earliest date available. 

The Court considered the power to make an order that facilitated the issuing of a passport to an unmarried minor in the absence of consent by parties with caring responsibility for the child.

Held:

(1)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 under s61C(1) of the Family Law Act, and a matter concerning a child’s welfare under s67ZC.

(2)The requirement of the father's signature on any application for the issue of a passport for the children is dispensed with in this case.

Application

1. The mother's application filed on 16 September 2004 seeks an urgent order that the children N, now 14 years and A, now 12 years be permitted to leave the Commonwealth of Australia without the consent of the father, that the application be listed at the earliest date available and that all necessary time be abridged.

Service

1. I am satisfied that the father was served at 7.20 am on 17 September 2004.  See the affidavit of service filed by leave today.  Thus the father has notice not only of the listing of the matter today but also of the mother's application for an abridgement of time in the circumstances set out in her principal affidavit filed on 16 September 2004 which I am satisfied was also served at that date and time.

Jurisdiction/power

1. Section 7A of the Passports Act 1938 (Cth) provides, relevantly, to the effect that an Australian passport will not be issued to an unmarried minor unless the minor provides the authorised officer with the written consent of every person who has caring responsibility for the minor or 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.

2. There does not appear to be any authority as to which, if any, of the powers vested in the Family Court of Australia pursuant to the Family Law Act 1975 (Cth) (the Act) enables the Family Court of Australia to make an order permitting a minor to leave Australia. The generally held view is that s 67ZC confers such a power. In Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20, however, the High Court made clear that s 67ZC does not itself expressly give jurisdiction in respect of a “matter” for the purpose of ss 75-77 of the Constitution in that it does not refer to any substantive rights, privileges, duties or liabilities or the persons who can apply for or be made subject to an order under s 67ZC (Gleeson CJ and McHugh J at par 10); that s 67ZH confines the operation of s 67ZC to the parental responsibilities of the parties to a marriage for a child of the marriage (Gummow, Hayne and Heydon JJ at par 74); the “welfare jurisdiction” of the Family Court conferred by s 67ZC is not at large, and the High Court has not as yet articulated definitively the jurisdiction of the Family Court in respect of the welfare of a child (Gleeson CJ and McHugh J at pars 20, 21); whilst s 67ZC does not define the jurisdiction of the Family Court in respect of a “matter”, other provisions of the Act may supply the elements of a “matter” (Gleeson CJ and McHugh J at par 22); and that the valid application of s 67ZC is therefore dependent upon some other provision in Part VII of the Act creating a “matter” within the meaning of ss 75 or 76 of the Constitution to which the jurisdiction conferred by s 67ZC can attach or be “inferentially linked” to s 67ZC (Gleeson CJ and McHugh J at par 23).

3. 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.

4. There has been some debate as to whether s 114 of the Act may be a dual or alternatively independent source of power to make the substantive order which the mother seeks. However, it is not necessary to address that question now to dispose of this matter. It is sufficient to observe that the relevant authorities concerning s 114 make clear that its application is also limited.

Relevant background facts

1. The parties married on 5 August 1989 and divorced on 9 March 1996.

2. No orders have been made concerning the children.

3. The mother wishes to take the children to New Zealand for a short holiday to follow a medical conference which she proposes to attend in Rotarua.  The mother has been attending that conference each year since 1998.

4. The mother decided in February of this year to take the children to New Zealand with her for the annual conference this year and to give them a short holiday in New Zealand following the conference.  She was given advice at that time that there would be no difficulty in obtaining passports for the children.  It was only when she applied for the children's passports earlier this month that she discovered that she required the father's consent and signature on the children's passport applications.  At that stage the mother did not know the whereabouts of the father, there having been some estrangement and distance for many years.

5. On 9 September 2004 the mother ascertained the father's current address by searching the electoral roll and visited him at that address.  In discussions she obtained his consent to sign the children's passport applications and made an arrangement to meet him the following day for him to sign the applications.  That arrangement was not kept.  The following day the mother then contacted the father who berated her with obscenities saying that he would get a court order against her if she went near his home again.

6. It is reasonable in those circumstances for the mother to have inferred, which she did, that she would not in a timely way be able to obtain the father’s written consent and signature on the passport applications and that has prompted this urgent application.

7. The present arrangements are for the mother and the children to fly out this Sunday 26 September for two weeks.  The mother holds a senior position on a relevant professional educational body.  She has trained persons for examinations to take place in New Zealand next week on 27, 28 and 29 September.  The rest of that week will be taken up by the conference.  The following week the mother proposes to travel in New Zealand with the children to provide them with the holiday to which I have referred.

8. The children are likely to miss about three days of school if permission for travel is given, however, their teachers in Australia have given them homework to do whilst they are away.  The mother has not as yet booked return flights, however, she is confident that she will be able to do that once she has the children’s passports.  She is endeavouring to book return flights for Sunday 10 October 2004, which is the end of the second week of the Queensland school holidays.  The mother says in her principal affidavit that the children will go back to the same school and she will then return to her work in Redcliffe.  Importantly, the mother says that she owns the home in which she and the children reside, which home is subject to a mortgage, and that her family live in and around Brisbane.  I am satisfied in those circumstances that if the application is granted the children are likely to be returned to Australia on or soon after 10 October 2004.

9. In general I refer also to the circumstances set out by the mother in the last paragraph of her principal affidavit and in her second affidavit filed also on 16 September 2004 as to the circumstances of urgency for the hearing of the application.

Decision and reasons

1. In all of the circumstances I am satisfied that I should abridge time to enable the application and orders to be made today and to make the orders sought.  In particular, I am satisfied that the mother’s application is related to her parental responsibilities, and that the children’s best interests and welfare would be met by making the orders sought by the mother.

Orders

(3)Time is abridged to the extent necessary to hear this application today.

(4)The children are permitted to leave the Commonwealth of Australia without the written consent or any consent of the father.

(5)The requirement of the father's signature on any application for the issue of a         passport for the children is dispensed with.