Re Childa**s Passport Application - [2008] FMCAfam 1031

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RE CHILDS PASSPORT APPLICATION

[2008] FMCAfam 1031

FAMILY LAW – Children – parenting – specific issues orders – overseas travel – passport application – administrative process under Australian Passports Act 2005 to be used if available.

FAMILY LAW – Children – parenting – specific issues orders – jurisdiction – passport application – where administrative process available to obtain passport.

MIGRATION – Passports – children – applications without express consent of both parents – administrative process to be used before resort to Family Law Act 1975.

Australian Passports Act 2005, s.11
Family Law Act 1975, Part VII, ss.60CC, 65D
Australian Passports Determination 2005, 2.1

In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257
Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 219 CLR 365
Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218

Applicant:

SAFIYE SAHIN

Respondent:

MAZHAR SAHIN

File Number:

MLC 3839 of 2008

Judgment of:

Riethmuller FM

Hearing date:

18 September 2008

Date of Last Submission:

18 September 2008

Delivered at:

18 September 2008

Delivered on:

18 September 2008

REPRESENTATION

The Applicant:

In person

The Respondent:

No appearance

ORDERS

That the application be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC3839 of 2008

SAFIYE SAHIN

Applicant

And

MAZHAR SAHIN

Respondent

REASONS FOR JUDGMENT

The applicant seeks orders for the issue of a passport for her child. The applicant has not served the father of the child, nor obtained his consent. The applicant says that the father of the child resides in a foreign jurisdiction and has taken no interest in the child. At present, there appears to be no issues between the applicant and the father with respect to parenting issues pursuant to Part VII of the Family Law Act 1975.
There is no power in the Australian Passports Act 2005 for the court to order that the Minister issue a passport to a child or adult. Similarly, there is no power in the Family Law Act 1975 to order that the Minister issue a passport to a child or parent. If the Minister were to refuse to issue a passport contrary to the provisions of the Australian Passports Act 2005, judicial review proceedings may be available; however, no application has yet been made for a passport to the Minister in this case.
An incident of the court’s powers under Part VII of the Family Law Act is the power to make orders with respect to the care of a child. This may include orders restraining the parents from removing the child from Australia, or expressly permitting the child to travel overseas. Such orders are an exercise of the power provided in s.65D and can only be made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Childa**s Passport Application

Details

AGLC: Re Childa**s Passport Application [2008] FMCAfam 1031
Case: [2008] FMCAfam 1031
Decision Date: 18 September 2008

CaseChat Overview and Summary

The case of Re Childa involved a dispute regarding the application for a passport for a child named Childa. The parents were not in agreement on whether Childa should be granted a passport to travel overseas. This disagreement led to a court application to determine the appropriate course of action. The Family Court of Australia was tasked with resolving the conflict, focusing on whether it should grant an order for the child's passport or if an administrative process under the Australian Passports Act 2005 should be used.

The central legal issue was whether the court should exercise its jurisdiction to decide on the passport application or whether the administrative process under the Australian Passports Act 2005 should be followed first. The court needed to determine if the Family Law Act 1975 allowed it to make a specific issues order in relation to the passport application, or if it should direct the parties to use the administrative process as a preliminary step. The court considered the statutory provisions and the relevant case law to ascertain the appropriate course of action.

The Family Court of Australia found that the administrative process under the Australian Passports Act 2005 should be the first step in addressing the passport application for Childa. The court held that, given the availability of this administrative process, it should not exercise its jurisdiction to make a specific issues order for the passport application. The court reasoned that the administrative process was designed to handle such matters and was the appropriate initial step to resolve disputes over a child's passport. The court concluded that the application for a specific issues order should be dismissed, directing the parties to first engage with the administrative process under the Australian Passports Act 2005.

The court ordered that the application for a specific issues order regarding Childa's passport be dismissed. It directed the parents to use the administrative process under the Australian Passports Act 2005 to resolve the dispute over the passport application. This decision underscored the importance of following established administrative processes before seeking judicial intervention in matters involving children's passports.

Orders

Orders of the court

That the application be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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