MURRAY & GIBB
[2011] FMCAfam 1485
•12 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MURRAY & GIBB | [2011] FMCAfam 1485 |
| FAMILY LAW – Children – passport – application for child to live with mother – best interests of the child – parental responsibility – sole parental responsibility – application for leave to apply for Australian passport without the consent of the child’s father – where respondent has had no contact with child since 2004 – “catch-22” situation – where child has dual Australian and Russian citizenship – where child cannot enter Australia on his Russian passport without a visa – where child is unable to obtain a visa to enter Australia because he is an Australian citizen – where child does not hold an Australian passport. PRACTICE & PROCEDURE – Personal service – dispensation with personal service – application for leave to proceed ex parte – where respondent’s whereabouts unknown. PRACTICE & PROCEDURE – Urgent application – where service on respondent not practicable – where urgency established. PRACTICE & PROCEDURE – Jurisdiction – where the child the subject of the application is not present in Australia – where child is an Australian citizen – where Applicant mother is an Australian citizen established – Federal Magistrates 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. |
| Australian Passports Act 2005 (Cth), s.11 Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 69E Federal Magistrates Court Rules 2001, Part 5 |
| Olivera & Magarelli [2011] FMCAfam 815 |
| Applicant: | MS MURRAY |
| Respondent: | MR GIBB |
| File Number: | SYC 5839 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 December 2011 |
| Date of Last Submission: | 12 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2011 |
REPRESENTATION
| Applicant: | The Applicant appeared in person |
| Respondent: | No appearance |
ORDERS
The Applicant is granted leave to proceed ex parte.
I dispense with the requirement for personal service on the Respondent.
The Applicant Mother is to have sole parental responsibility for the child [X] born [in] 1995.
The child is to live with the Mother.
The Mother is permitted to apply for an Australian passport for the child [X] born [in] 1995 without the need for the consent of the Father.
IT IS NOTED that publication of this judgment under the pseudonym Murray & Gibb is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5839 of 2011
| MS MURRAY |
Applicant
And
| MR GIBB |
Respondent
REASONS FOR JUDGMENT
Application
The Application before the Court is unusual in that the Applicant is not seeking to take her son [X] out of Australia but to bring him back into the country. On the Mother’s evidence, the child is currently in Russia, where he had been staying with his paternal grandfather since August. He wishes to return to Australia, but he only holds a Russian passport, although he has dual Australian and Russian citizenship.
The Mother deposes in her affidavit that her son is unable to enter Australia without either a visa or an Australian passport. There is a “catch-22” situation, in that, as the mother deposes in her affidavit:
18. The child is unable to return to Australia without a visa or an Australian passport. I am unable to obtain a visa for the child to enter Australia because he is an Australian citizen.
19.I have been advised by the Passport Office that they will not issue a passport for the child in the absence of the signature of the Father or a Court order allowing me to obtain the passport without the Father’s signature.[1]
[1] Affidavit of Ms Murray affirmed 29.9.2011
Background
The facts relied upon by the Mother are set out in her affidavit of 29th September 2011.
The Mother and Father were both born in [omitted], in Russia, then part of the Soviet Union. The Mother states that they were married in Russia [in] 1995[2] and emigrated to Australia in April of that year.
[2] Although the child’s birth certificate annexed to the mother’s affidavit states that they were married on [date omitted] 1995
The child [X] was born in Sydney [in] 1995.
The Father and Mother separated in 1997 and the Father returned permanently to Russia. The Mother deposes that she has not seen or had any communication with the Father since then.[3]
[3] Affidavit of Ms Murray 29.9.2011 at paragraphs [8] and [13]
The child [X] went to live in Russia with his paternal grandmother, Ms G in 1998, and remained there until 2004. He continued to have contact with his father during that time.
The Father and the Mother were divorced in [omitted] on 5th January 2000.[4] The Mother reverted to the use of her former surname of [omitted].
[4] Ibid Annexure “D”
On 16th April 2003 the Father executed an agreement in which he gave his consent to the child leaving Russia to reside permanently in Australia.[5]
[5] Ibid Annexure “F”
The grandmother brought the child back to Australia in 2004 and he remained in her care until 27th August 2011.
The Mother and the child became Australian citizens on 9th November 2005.[6]
[6] Affidavit of Ms Murray 29.9.2011 Annexures “A” and “C”
The grandmother died in Russia in August 2010.
On 27th August 2011 the child travelled to Russia to stay with his paternal grandfather. He travelled on his Russian passport.
In late September 2011 the child telephoned his mother and advised her that he wished to return to Australia but he needed an Australian passport.
The Mother deposes that she has had no communication with the child’s father since 1997 and his father has told her that he does not know where his son is.[7]
[7] Ibid at [16]
The Mother deposes that the Father has not seen or spoken with the child since 2004.[8]
[8] Ibid at [13]
Orders Sought
In her Application filed on 23rd September 2011[9] the Mother seeks interim or procedural orders that:
a)The requirement for a s.60I certificate be dispensed with;
b)The requirement for personal service on the Respondent be dispensed with;
c)The application be listed on short notice; and
d)That she be granted leave to proceed ex parte.
[9] Although the supporting affidavit filed at the same time is dated 29.9.2011
The Mother seeks final orders that:
a)She have sole parental responsibility for the child [X]; and
b)That she may apply for an Australian passport without the requirement for the Father to sign the application.
The Relevant Law
Where an Applicant seeks that an applicant should be heard urgently, the procedure to be followed is set out in Part 5 of the Rules, particularly Rules 5.01 and 5.03. I have previously referred to the requirements of the Rules in this regard in a decision known as Olivera & Magarelli[10], at [20]. Rule 5.03 provides that the Applicant must establish either by affidavit or, with the leave of the Court, orally:
a)whether there are previous proceedings between the parties and, if so, the nature of the proceedings; and
b)whether there are any current proceedings in any court in which the applicant and the respondent are parties; and
c)the particulars of any orders currently in force between the parties, including the courts in which they were made; and
d)the steps that have been taken to tell the respondent or the respondent’s legal representative of the applicant’s intention to make the application or the reasons why no steps were taken; and
e)the nature and immediacy of the damage or harm which may result if the order is not made; and
f)why the making of the order is a matter of urgency and why an abridgment of the time of service of the application and the fixing of an early hearing date would not be more appropriate; and
g)if the application is a financial matter, the capacity of the applicant to give an undertaking as to damages; and
h)the other facts, matters and circumstances relied on by the applicant in support of the application.
[10] [2011] FMCAfam 815
The application before the Court seeks a parenting order in relation to the child [X] who, at the time of hearing, is located in Russia. Section 69E of the Family Law Act sets out the requirements for instituting proceedings in relation to a child. Subsection 69E(1) 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; …
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.
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). 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.
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 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 (s.61DA(4)).
Where a child does not have an Australian passport, either each person who has parental responsibility for the child must consent or there must be a court order. Subsection 11(1) of the Australian Passports Act 2005 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.
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.
Evidence
The Applicant Mother relied on her affidavit filed with her Application. She also gave short oral evidence.
Conclusions
On the evidence before the Court, I am satisfied that the Applicant has established that the application is of sufficient urgency that the Court should dispense with the requirement for personal service on the Respondent father and grant leave to proceed ex parte.
The only previous proceedings between the parties are the divorce proceedings in the Court of the [omitted] District of the City of [omitted], which made a resolution on 24th December 1999 dissolving the parties’ marriage as from 5th January 2000.
There are no current proceedings apart from this Application.
There are no orders in force apart from the divorce order.
The Applicant has given evidence that:
a)She has had no communication with the Respondent since 1997;
b)The child has had no contact with the Respondent since 2004;
c)The Respondent’s father has told her that he does not know where the Respondent is; and
d)The Respondent’s mother is deceased.
The nature of the harm that would or may be suffered is that the child [X] will not be able to return to Australia without an Australian passport. He is currently stranded in Russia.
The Court has jurisdiction under s.69E(1) of the Act because the child is an Australian citizen, as is the Applicant Mother.
The Court must consider the best interests of the child as the paramount consideration. Whilst it is of benefit to the child to have a meaningful relationship with both parents, he apparently has had no communication with his father since 2004, even though he has been staying in Russia with his grandfather since late August 2011. There is no evidence of abuse, neglect or family violence.
The child has expressed his views very carefully. He is in Russia and he has told his mother he wants to return home to Australia and resume living with her. He is 16 years old and is of sufficient maturity that the Court should give weight to his views.
On the evidence the child has a good relationship with his mother and paternal grandfather but no relationship with his father. His continued separation from his mother, and his country of birth, will presumably be distressing to him.
The Father has had no communication with his son since 2004, which does not show his attitude to his child or the responsibility of parenthood in a good light. By contrast, the Mother has actively encouraged his relationship with his grandparents and now wants him home.
I am satisfied that it is in this child’s best interests to live with his mother in Australia.
In my view, the lack of contact between the child and his father since 2004, which apparently is due to the actions or inaction of the Father, does not make equal shared parental responsibility a viable proposition. I am satisfied that it is not in this child’s best interests for his parents to have equal shared parental responsibility.
I intend to make an order that the Mother is to have sole parental responsibility.
In view of the lack of contact between the Father and [X], and bearing in mind [X]’s age, I am not satisfied that anything useful will be served by making an order that the Father should spend time with him. If the Father should contact his son in the future, then the child can choose to communicate and spend time with him.
There is a need for this child to be issued with an Australian passport. His mother will have sole parental responsibility, so she may apply, without the need to obtain the Father’s consent.
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.
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.
The evidence shows that this child requires an Australian passport to return to Australia and his mother should be given the power by means of an order of this Court to obtain that passport for him.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 16 January 2012