Wiltcher and Wiltcher

[2010] FamCA 369

FAMILY COURT OF AUSTRALIA

WILTCHER & WILTCHER [2010] FamCA 369

FAMILY LAW – CHILDREN – BEST INTERESTS – Applications for passports for children – Dispensation of father’s signature on applications if he does not sign them  

Commonwealth of Australia Constitution Act ss 75, 76, 77
Family Law Act 1975 (Cth) s67ZC

GDPW & IDPW (2004) FLC 93‑206
Minister for Immigration and Multicultural and Indigenous Affairs v B No 3 (2004) 219 CLR 365

APPLICANT: Ms Wiltcher

RESPONDENT: Mr Wiltcher

FILE NUMBER: BRC 326 of 2010

DATE DELIVERED: 22 March 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 22 March 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Geldard, Geldard Sherrington Lawyers

THE RESPONDENT: In person

Orders

IT IS ORDERED

1. The father do all acts and things and sign all documents necessary to facilitate the issue of passports for the children S born … October 1998 and B born … March 2001.

2. The mother, by her solicitors, send to the father as soon as practicable completed passport applications for the children by Express Post addressed to him at ….

3. If the father should fail to return to the mother’s solicitors, within seven days after posting, the passport applications signed by him a Registrar of this Court may sign the applications instead of the father and his signature and consent otherwise be dispensed with. 

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 326 of 2010

MS WILTCHER

Applicant

And

MR WILTCHER

Respondent

REASONS FOR JUDGMENT

1. This is an application by Ms Wiltcher that passports issue for her daughters S born in October 1998 and B born in March 2001 without the father's consent and signature, or in the alternative that the father do all acts and things and sign all documents necessary to facilitate the mother obtaining a passport in the children's names and if the father fails to sign such documents within three days of the orders being made a Registrar be permitted to sign on the father's behalf.

2. The father Mr Wiltcher has been served with the mother's application and supporting material and earlier today appeared.  The children's father said that whilst he did not consent to the relief sought by the mother he did not oppose it and said further that if in the exercise of my discretion I make the order sought by the mother he would prefer that he have the opportunity to sign the documents rather than there be an order that his signature be dispensed with. 

3. The usual provision of the Family Law Act1975 (Cth) (the Act) under which these types of applications are considered is s 67ZC. However, as the High Court pointed out in Minister for Immigration and Multicultural and Indigenous Affairs and B (No 3) (2004) 219 CLR 365, that provision does not itself expressly give jurisdiction in respect of a matter for the purpose of s 75 to s 77 of the Constitution, and that the valid application of that provision therefore depends upon some other provision in Part VII of the Act creating a matter within the meaning of s 75 or s 76 of the Constitution to which the jurisdiction conferred by s 67ZC can attach or be inferentially linked.

4. In relation to that decision I refer to my own decision in GDPW v IDPW (2004) FLC 93-206 at pars 4-5 where, after referring to that High Court authority and the parts of it to which I have just referred, I said (par 5):

   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.

5. Since that decision there have been considerable amendments to the Act which commenced on 1 July 2006. However, s 61C in Part VII of the Act has remained. Although amended in 2006, nonetheless, it still provides that each of the parents of a child who is not 18 years has parental responsibility for the child. I would draw attention also to s 61C(3), which provides that subsection (1) has effect subject to any order of a Court for the time being in force whether or not made under the Act.

6. There is also now, in these types of applications, the potential operation of s 61DA of the Act which raises the rebuttable presumption of equal shared parental responsibility when making parenting orders on the basis that under s 64B(2) parenting orders may deal with “any other aspect” of the welfare of a child or parental responsibility for a child. I do not think it is necessary however to look for any source of jurisdictional power other than s 67ZC, as I have explained it, the matter inferentially linked being the ordinary incidence of parental responsibility under s 61C.

7. In relation to s 67ZC it is fundamental that I mention that although it provides jurisdiction to make orders relating to the welfare of a child, by s 67ZC(2), in deciding whether to make an order under subsection (1) in relation to a child the Court must regard the best interests of the child as the paramount consideration.  Thus, unlike in relation to s 68B, which has troubled the Court as a welfare provision with uncertainty as to whether the best interests of the child does not apply at all, is relevant but not paramount, or paramount, there is no such troubling in relation to s67ZC which spells out that in considering the welfare of a child for the purpose of that provision the best interests of the child is the paramount consideration.

8. This has the result that I am required, in determining the children's best interests in relation to the mother's application, to consider and apply each of the relevant provisions of s60CC because that is what the statute has provided I must do in order to determine what is in a child's best interests.  A cursory glance at those provisions shows that most of them are not relevant to this type of application, as opposed to living with and spending time with arrangements. However, the statutory mandate is one I must follow.  Before doing so, however, it is appropriate that I make observation upon some of the more traditional things that the judges have decided are relevant in these types of applications. 

9. To grant the mother's application will not interfere with any of the children's time with the father for the reason that, as deposed by the mother, and not challenged by the father, since they separated in early January 2009, that is a little over a year ago, the children have remained solely in the mother's care and have not spent any time with the father. 

10. The mother has deposed that she applied for and obtained a two year protection order made in her favour in the State Magistrates Court in January 2009 which plainly is still current.  Whilst such does not prevent the children spending time with the father, the mother deposes, and the father does not challenge, that there are currently no parenting orders or parenting plans in place.   It will be a matter for the father, at some future stage, if he wishes, to make application for an order that the children spend time with him.  There is presently, it would appear from the material, also no communication between the children and the father.  Indeed, it has emerged that the mother no longer lives in Queensland, but has moved interstate, and that the father presently does not have information as to her or the children’s location.

11. The mother has deposed that she wishes to take the children on a holiday overseas and has placed into evidence a copy of her proposed travel itinerary produced for her by Flight Centre dated 27 February 2010. 

12. She has deposed, and there is no reason presently to think that it is not genuine, that she undertakes to return to Australia with the children at the conclusion of the overseas holiday.  The Flight Centre schedule shows the mother's intention to leave Australia with the children on 28 July 2010, to travel with them to various parts of the United States and to return to Australia with them on 19 August 2010. 

13. Usually, in these types of applications, evidence is provided as to the applicant parent's links with Australia, for example, the ownership of real estate here, employment here or the residence of extended family here and the like.  The mother's supporting material does not include such information. 

14. If the father had not appeared today and had not stated clearly that he does not oppose the mother’s application then I would have refused it until and if she provided to the Court by further affidavit information of the kind just mentioned. 

15. The exercise of my discretion does not require such evidence although, as I have said, it is usually given. However, in the circumstances of the father appearing today, and not opposing the relief sought by the mother, there is no basis for me to adjourn the matter or stand it down until such evidence by the mother be provided.

16. The circumstance of the existence of a two year protection order has the effect that the presumption under s 61DA that it is in the children’s best interests that the children’s parents have equal shared parental responsibility for them does not apply, having regard to s61DA(2). I am however not required today to consider or make an order generally in relation to parental responsibility but rather only in relation to the subject matter of the mother’s specific application.

17. I would refer further, in relation to s61DA(2), to the mother's material concerning pending proceedings in the current sittings of the District Court of Queensland commencing 15 March 2010 in relation to a charge of rape against the husband, the mother deposing that the subject matter of the charge relates to her.

18. More pertinently, in relation to the children, the Act operates so that each of the children's parents has parental responsibility for them, subject to Court orders: s61C(1). The father has exercised his parental responsibility today by attending at court and stating that he does not oppose the mother’s application, save that he wishes to be involved to the extent of having opportunity to sign the applications for the issue of passports for the children rather than having his signature dispensed with.

19. In relation to the s 60CC matters it would be artificial, in the circumstances which I have outlined, to deal with the matter of the benefit to the children of having a meaningful relationship with both of the children's parents.  Whether there is a need to protect the children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence is not a matter presently raised for determination in this limited application.  The children's views have not been expressed in relation to the present application, and, indeed, as it relates to their welfare, are probably too young to express meaningful views in relation to it.  It appears the children have a relationship with the mother, though its quality is not the subject of her material, and presently do not have a relationship with the father.  There is no evidence as to the willingness or ability of each of the children's parents to facilitate and encourage a close and continuing relationship between the children and the other parent.  The remaining matters in s 60CC do not arise for consideration as relevant matters save in relation to family violence a matter with which I have dealt already. 

20. There is always a concern that a parent who is permitted to take children on overseas holidays may abscond with them and not return them to Australia.  However, in each case this has to be carefully assessed on the merits.  There does not appear to me to be any present indication that the mother may be unlikely to return the children to Australia at the conclusion of their planned holiday. 

21. Finally, I take into account that the United States, for the purpose of the presently planned holiday, is a Hague Convention country.  However, as is plain, the issue of passports for the children would enable the mother, if she so wished, to travel more extensively with the children.

22. I am satisfied, in all of the circumstances, that the proper exercise of my discretion is to allow the application as being one in the children's best interests to allow them to holiday with the mother in the United States, and will make orders accordingly. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate:    

Date:              13 May 2010