SINGH & ILHAN
[2012] FMCAfam 1271
•19 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH & ILHAN | [2012] FMCAfam 1271 |
| FAMILY LAW – Children – parenting orders – best interests of the children – parental responsibility – sole parental responsibility – where parents separated – where father has not seen children since December 2011 – where father has returned to live in Bangladesh. FAMILY LAW – Children – passport – overseas travel – travel outside Australia – where mother – wishes to renew child’s passport – where mother does not know father’s address – where mother subsequently obtained a telephone number for the father – where father has remarried. PRACTICE & PROCEDURE – Orders – Application for ex parte orders – where respondent has left Australia – where applicant does not know respondent’s address in Bangladesh. |
| Australian Passports Act 2005 (Cth) s.11 Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65AA, 65Y. Federal Magistrates Court Rules 2001 r.16.05 |
| Applicant: | MS SINGH |
| Respondent: | MR ILHAN |
| File Number: | SYC 6671 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 19 November 2012 |
| Date of Last Submission: | 19 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 19 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | No solicitor |
| Counsel for the Respondent: | No appearance |
| Solicitors for the Respondent: | No solicitor |
ORDERS
Leave is granted to the Applicant to proceed ex parte.
The Applicant mother is to have sole parental responsibility for the children [X] born [in] 2007 and [Y] born [in] 2008.
The children [X] born [in] 2007 and [Y] born [in] 2008 are to live with the Applicant.
The Applicant is permitted to take the children [X] born [in] 2007 and [Y] born [in] 2008 out of Australia at such times as she considers necessary.
The Applicant is permitted to apply to renew the Australian passports of the children [X] and [Y] as they fall due for renewal without the consent of the Respondent father.
The Applicant must forward a sealed copy of these Orders by ordinary prepaid post to the Respondent care of his father [name and address omitted], within FOURTEEN (14) days of the date of these Orders.
The Respondent is granted leave to apply to vary or set aside all or any of these orders within FORTY-TWO (42) days of the date of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Singh & Ilhan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6671 of 2012
| MS SINGH |
Applicant
And
| MR ILHAN |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Mother of two children for parenting Orders and for an order allowing her to renew the passport of her elder daughter. The Respondent has left Australia and the Applicant believes that he has returned to his native Bangladesh.
The Applicant wants to obtain a new Australian passport for her elder daughter so that she can take the children to Bangladesh to visit her father, who is very ill. She has deposed in her affidavit that she has been advised by the Australian Passports Office that they cannot issue a fresh passport for the child without the father’s consent or a Court order. The Applicant Mother deposes that she does not have an address to contact the Respondent Father.
Background
The parties were both born in Bangladesh. They met in Australia in July 1999 and commenced a relationship in November of that year.
The parties were married [in] 2002.
There are two children of the marriage, both girls.
[X] was born [in] 2007. [Y] was born [in] 2008. The children have lived with the Mother all their lives.
The parties separated on a final basis on 14th December 2009.
The Father has returned to Bangladesh.
The children are Australian citizens by birth and are entitled to Australian passports. The passport for [X] has expired but [Y]’s passport remains in force until August 2013.
The Mother wishes to obtain a new passport for [X] so that she may travel to Bangladesh with both girls to see her father, who is very ill.
There are no parenting orders in force, nor have any arrangements been made about child support or child maintenance.
Evidence and Submission
The Applicant relied on here affidavit affirmed on 6th November 2012. She also gave oral evidence in which she said there had been a recent development since the pleadings were filed. Although she knew the address of her father in law, she did not know any address for the Respondent. However, on 9th November her brother in law telephoned her and provided her with a telephone number in Bangladesh for the Respondent.
The Applicant said that she telephoned the number and spoke to the Respondent’s current wife. There is no evidence that the Respondent is divorced from the Applicant, at least under Australian law. She was able to speak to the Respondent who agreed to sign the necessary documents to allow a passport to be issued for the child [X]. The Applicant also said that the Respondent subsequently attended the Australian High Commission and signed the necessary consent.
The Relevant Law
The Applicant is applying for parenting orders.
Section 60CA of the Family Law Act 1975 requires the Court, in deciding whether to make a parenting order, to regard the best interests of the children as the paramount consideration (see also s.65AA). A court determines what is in a child’s best interests by considering the maters set out in subsections (2) and (3) of s.60CC of the Act.
Subsection 61DA(1) requires the Court, when making a parenting order, to apply a presumption that it is in a child’s best interests for his pr her parents to have equal shared parental responsibility for the child. The presumption does not apply in cases of abuse or family violence (see s.61DA(2)), and it may be rebutted by evidence that satisfies the Court that applying the presumption would not be in the child’s best interests.
If the presumption of equal shared parental responsibility, the Court is required by s.65DAA to consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent or, failing that, for the child to spend substantial and significant time with each parent (s.65DAA(2)).
The Court has power under s.11 of the Australian Passports Act 2005 to authorise the issue of a passport without the consent of one parent as an incident of an order permitting a child to travel internationally.
Under s.65Y of the Family Law Act, where there is a parenting order in force, it is an offence for a person to take a child out of Australia except as permitted by s.65Y(2). That subsection provides that a person may take a child out of Australia:
a)with the written consent of the person in whose favour the order was made; or
b)in accordance with a Court order.
Conclusions
This is a case where it appears clear that the Applicant should have sole parental responsibility for the children. They live with her in Australia and have always done so. The children’s father lives in Bangladesh and, whilst the mother may now telephone him because she has a telephone number, she still does not know where he lives.
An order will be made for the children to live with the Applicant. She should have the ability to take the children out of Australia, especially to Bangladesh where her extended family members live. The children’s father lives in Bangladesh and there is evidence that when the Mother last took the children to Bangladesh they were able to spend some time with their father.
The Father has apparently given his consent for [X] to obtain a fresh passport, but the Mother should have the right to apply to renew the children’s Australian passports when they fall due for renewal.
The Mother has an address for the Father’s parents in Bangladesh, so she should forward a copy of the orders to be made today to the Father’s parents for them to pass on to him. As these orders are being made in the Father’s absence, he has the right under Rule 16.05 to apply to vary or set aside all or any of these Orders, and he will be allowed forty-two days in which to bring such an application.
Otherwise, the Application can be removed from the list of cases awaiting finalisation.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 23 November 2012
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