Re Childa**s Passport Application
[2008] FMCAfam 1031
•18 September 2008
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 after consideration of the factors to that provision, of which the paramount consideration is the child’s best interests, as determined in accordance with s.60CC.
The relevance of a court order made under the Family Law Act, permitting overseas travel is apparent from the wording of s.11(1) of the Australian Passports Act 2005 which prevents the Minister from issuing a passport to a child unless there is parental consent or an order permitting travel. Importantly, the passports scheme does not rely upon the courts to make specific issues parenting orders before issuing children with passports, if there is no controversy between the parents. Section 11 provides a specific administrative process for dealing with cases where there is not consent by those with parental responsibility. Section 11 provides:
11 [Reasons relating to child without parental consent or court order for travel] (1) 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.
(2) Subsection (1) does not prevent the Minister from issuing an Australian passport to a child if:
(a) circumstances specified in a Minister’s determination as special circumstances exist; or
(b) the Minister is satisfied that the child’s welfare (physical or psychological) would be adversely affected if the child were not able to travel internationally; or
(c) the Minister is satisfied that:
(i) the child urgently needs to travel internationally because of a family crisis; and
(ii) if there is a person who has parental responsibility for the child and whose consent to the child travelling internationally has not been given–it is not possible to contact that person within a reasonable period; or
(d) in the case of a child who is outside Australia–the child departed Australia less than 12 months before the application for the passport was made and the Minister considers that a passport should be issued to enable the child’s return to Australia.
(3) If the Minister refuses to issue a passport to a child, the Minister may declare that he or she is refusing to exercise the discretion under subsection (2) because the matter should be dealt with by a court.
Note: For example, the Minister may make a declaration under this section if the persons who have parental responsibility for the child disagree about the child travelling internationally.
(4) 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.
(5) For the purposes of this section, a person has parental responsibility for a child if, and only if:
(a) the person:
(i) is the child’s parent (including a person who is presumed to be the child’s parent because of a presumption (other than in section 69Q) in Subdivision D of Division 12 of Part VII of the Family Law Act 1975); and
(ii) has not ceased to have parental responsibility for the child because of an order made under the Family Law Act 1975; or
Note: The presumptions in the Family Law Act 1975 include a presumption arising from a court finding that a person is the child’s parent, and a presumption arising from a man executing an instrument under law acknowledging that he is the father of the child.
(b) under a parenting order:
(i) the child is to live with the person; or
(ii) the child is to spend time with the person; or
(iii) the person is responsible for the child’s long term or day to day care, welfare and development; or
(d) the person is entitled to guardianship or custody of, or access to, the child under a law of the Commonwealth, a State or a Territory.
The way in which the Minister determines applications for passports for children is expanded upon in the Australian Passports Determination 2005 as follows:
Part 2 Children’s passports
2.1 Special circumstances
(1) For paragraph 11(2)(a) of the Australian Passports Act, subject to subsection (2), each of the circumstances mentioned in subsection (3) is a special circumstance in which the Minister may issue a passport to a child even though a person who has parental responsibility for the child (the non consenting parent) has not provided his or her consent to the child travelling internationally.
(2) Subsection (1) does not apply if the Minister has been provided with court documents demonstrating that there are proceedings before a Commonwealth, State or Territory court that may affect the rights of the child to travel internationally.
(3) The circumstances are as follows:
(a) where the application is made by or on behalf of the child, neither the applicant nor the Minister has been able to locate or contact the non consenting parent for a reasonable period;
(b) the non consenting parent is missing and presumed dead;
(c) the non consenting parent is medically incapable of providing consent;
(d) there has been no contact (including contact in person or by telephone, mail or e mail) between the child and the non consenting parent for a substantial period before the application is made;
(e) where the application is made by or on behalf of the child – the child:
(i) is at least 16 years old; and
(ii) has had no contact (including contact in person or by telephone, mail or e mail) with the non consenting parent for at least:
(A) if the child is self supporting and living independently of all persons with parental responsibility for the child – 1 year before the application is made; or
(B) otherwise – 2 years before the application is made;
(f) the non consenting parent:
(i) is not an Australian citizen; and
(ii) separated from the person whose consent has been obtained before that person arrived in Australia; and
(iii) has not had contact with the child since the child’s arrival in Australia;
(g) a family violence order has been issued against the non consenting parent;
(h) if the child is outside Australia – there is evidence of family violence;
(i) an order of a court in a country that, under the Family Law (Child Abduction Convention) Regulations 1986, is a convention country, permits the child to travel internationally;
(j) in the case of a child who is outside Australia – the Minister considers that there is a need for the child to travel internationally;
(k) an order of a State or Territory court, made under a child welfare law, grants parental responsibility or guardianship of the child to:
(i) a parent of the child other than the non consenting parent; or
(ii) a person other than a parent of the child.
(4) In this section, child welfare law, family violence and family violence order have the same meaning as in Part VII of the Family Law Act 1975.
(5) In paragraph (3)(i), the reference to an order of a court permitting a child to travel internationally includes an order of a court permitting the issue of a passport to the child.
On a practical level, however, an application for a passport without the consent of a parent can be made on a two page form available from the passport website (presently Form B9). The foot of the form makes clear that only an additional 3-4 weeks is required for processing such an application. Whilst the legislation and Determination appear complex, the space on the form for the description of ‘special circumstances’ is quite small indicating that a lengthy explanation is not normally required.
In cases where there is no controversy between the parents, or others with parental responsibility (or claiming an appropriate interest), and no existing orders restricting the child’s travel, it is difficult to see that there would be a ‘matter’ for determination under the Family Law Act in the sense discussed in In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257. A broad reading has been given to the term ‘matter’ in children’s cases (see, for example Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218, but note the comments in Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 219 CLR 365) to allow for orders that are sometimes loosely described as falling within the ‘welfare jurisdiction’ of the court. However, to the extent that the child’s carer can have resort to the provisions of s.11(2) it is difficult to see there is any controversy or issue that would amount to a ‘matter’ over which the court has jurisdiction in the ordinary run of cases.
There will be a very small number of cases where resort to s.11 will not provide a remedy sufficient to meet the child’s needs, such as where the urgency of travel is such that the normal processing time is insufficient, despite timely application under the Act.
Conclusions
Where a person with parental responsibility for a child (by court order, or through paternity or maternity) seeks to have a passport issued for a child the following points provide appropriate guidance:
a)Ordinarily application should be made to the Minister for a passport with the consent of the other parent (or person with parental responsibility).
b)Application for the issue of a passport without the consent of the other parent (or person with parental responsibility) should be made to the Minister unless:
i)The other person is objecting to the issue of a passport;
ii)There are court orders restraining the child’s travel, such as an airport watch-list order; or
iii)There is another good reason why the administrative process would not provide an appropriate remedy; or
iv)The administrative process has resulted in a refusal to issue a passport.
c)Where application is made to the court the supporting material ought to set out why the administrative process is unsuitable and provide appropriate evidence. Applications need to also address the relevant factors under Part VII of the Family Law Act.
d)Applications to the court must be served upon the other parent (or person with parental responsibility) unless orders are obtained for substituted service or, in the exceptional case, that service be dispensed with. Applications for substituted service, or to dispense with service, should be supported by clear and detailed material.
In this case no application has been made to the Minister under s.11 of the Act. It is not suggested that there are any existing court orders restricting travel, nor that the father has refused to, or is likely to refuse to, consent. It is argued that the Father is in Turkey and cannot be served; however, there is no evidence of proper enquiry to locate him, nor has an appropriate proposal for substituted service been suggested. There is no urgency demonstrated on the material.
I therefore dismiss the application.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: Robin Smith
Date: 22 September 2008
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