WOODWARD & JACQUES

[2015] FCCA 578

FEDERAL CIRCUIT COURT OF AUSTRALIA

WOODWARD & JACQUES [2015] FCCA 578

Catchwords:
FAMILY LAW – Parenting – application for passports to issue notwithstanding the consent of the father has not been obtained – consideration of ss.60CC and 117 of the Family Law Act 1975 (Cth) – costs order made.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 117, 117(2), 117(2A)

Applicant: MS WOODWARD

Respondent: MR JACQUES

File Number: MLC 320 of 2015

Judgment of: Judge Hartnett

Hearing date: 4 February 2015

Delivered at: Melbourne

Delivered on: 4 February 2015

REPRESENTATION

Counsel for the Applicant: Mr Bradshaw

Solicitors for the Applicant: Tolhurst Druce & Emmerson

The Respondent: In person

ORDERS MADE 4 FEBRUARY 2015

1. The need for the father, Mr Jacques, to sign a Department of Foreign Affairs and Trade Child Passport Application consenting to the issue of an Australia Passport be dispensed with to enable the children X born (omitted) 1997, Y born (omitted) 1999 and Z born (omitted) 2001 to obtain passports.

2. The father pay the costs of the Applicant in respect of this application in the sum of $2,521.90 and there be a stay on such payment until final Orders are made in the County Court of Victoria proceedings between the parties which are currently on foot.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 320 of 2015

MS WOODWARD

Applicant

And

MR JACQUES

Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. These proceedings commenced with the mother filing an Initiating Application on 19 January 2015.  The mother sought that times be abridged to enable the application to be heard at an early date.  It was listed for hearing this day at 9.45am.  The mother seeks an order such that the need for the father to sign a Department of Foreign Affairs and Trade Child Passport Application, consenting to the issue of an Australian passport, be dispensed with, to enable the parties’ children X born (omitted) 1997; Y born (omitted) 1999; and Z born (omitted) 2001, to obtain passports.  She sought further that the father pay the mother’s costs associated with the application and such further or other orders as the Court deems appropriate. The father, by oral submission, opposed the making of orders as sought by the mother.

2. I indicate at the outset of these Reasons that I will accede to the application of the mother and make orders as sought by her.

History

1. The parties, as alleged by the mother, lived in a de facto relationship between 1993 and July 2003.  In the witness box this day the father, who has failed to file any affidavit material in the proceedings, but was given leave to give oral evidence this day in response, claims that the parties were not in a de facto relationship.  He does, however, agree that the parties are the biological parents of three children of their relationship, whatever its nature.  Those children are X born (omitted) 1997 and whom I note will be 18 years old this (omitted) and able to have his own passport issue; Y born (omitted) 1999 who is now 15 years of age and will be 16 in (omitted); and Z born (omitted) 2001 who is now 13 years of age and will be 14 in a matter of months likewise, namely, in (omitted) this year.

2. The three boys attend (omitted) College.  They are supported by their mother who is an (occupation omitted) and gainfully employed.  Their father is a (occupation omitted), but he has not been registered, on his evidence, since 2007 or 2008.  He is not in employment. The mother’s evidence is that she receives no child support from the father.  He in the witness box did not agree with that, but it appears on the evidence that the children are financially supported by their mother.

3. The father agrees that he has had no contact with the children for at least three years, save indirect contact by his observing of them playing sport, and by his presence in the school tuckshop from time to time.  The mother wishes for passports to issue for the three children and, in particular, the child Y, who wishes to travel to the (country omitted) and (country omitted) on a school trip in April this year.  To do so will require him to obtain an Australian passport.

4. The father was put on notice some time ago that this was an issue that needed resolution between the parties. By correspondence of 1 December 2014, the solicitors for the mother wrote to the father requesting that he sign the necessary consent forms to enable the three children to obtain Australian passports.  That correspondence set out that Y was intending to travel to (country omitted) and (country omitted) for a school trip in April 2015.

5. No response by the father was received. At court this day the father appears as a litigant in person.  He sought an adjournment of the matter, and he sought that the child, Y, be medically examined for what he described as a condition suffered by the child, being steroid sulfatase deficiency. The mother opposes both orders as orally sought by the father.

6. The Court is satisfied on the evidence that the father has long known about the mother’s request for a passport to issue for the children and in particular since 1 December 2014. He has failed to respond or cooperate in any way.  The mother has needed to issue proceedings. The father filed no answering material despite having an opportunity to do so since 22 January this year.  The father does however attend at Court this day to oppose the application.

7. I am satisfied the father has been afforded procedural fairness.  I am satisfied that he has been on notice for some time as to the dispute between the parties. There is some urgency about proceeding with the matter so that proper arrangements can be made for a trip to occur, and successfully so, should the school trip be proceeded with. I declined in the circumstances to adjourn the proceeding, but afforded the father an opportunity to give oral evidence, and further to cross examine the mother as to her affidavit evidence, and subsequent oral evidence given in response to the allegations made by the father this day.

8. With respect to the child Y’s possible medical condition, the father gave evidence that to his knowledge the child had never been hospitalised in respect of that condition.  Both parties agree that the mother had testing prenatally which indicated that Y was at higher risk of suffering from such an illness. I find on the evidence that since his birth there have been no health issues suggestive of this particular illness, suffered by Y. Further that the parties do not know whether or not Y has the condition, and the risk factor as determined prenatally is the only evidence to date suggestive that Y could suffer such condition.  On the evidence of his mother which I accept, he has slightly scaly skin, depending on the time of year.  He plays rugby union; he rows; he weighs 80kg; and is fit and well.  He has never seen a doctor in respect of the condition.

9. The father’s evidence is that he would consider consenting to the application of the mother if she undertook not to thwart him going on the school trip, and thus accompanying his son.  Further, he required the mother to submit Y to a medical examination by an endocrinologist and to reasonable therapy.  The Court’s view of the demands by the father are that they are completely unrealistic and without foundation. Y lives with his mother, a (occupation omitted) who has his best interests at heart. He has lived with her for the entirety of his life. He has not seen his father for the last three years in any meaningful way. It is extraordinary that the father would propose as being in the best interests of Y that he attend with Y on a school trip. His further demands of subjecting Y to medical examination and possible therapy in circumstances where there is no issue with respect to Y’s current health, and where he resides with a loving and responsible mother who is also a (occupation omitted), are designed specifically to aggravate the mother with no regard for the promotion of the child’s best interests.  

10. The Court is required in an application of this type to consider the child’s best interests. In this case, the Court considers the three children. The Court considers the matters set out in s.60CC of the Family Law Act 1975 (Cth) (‘the Act’). The children are of an age where passports can reasonably issue for them without the consent of both parents. The mother expresses in her Affidavit sworn 16 January 2015 that it is the child Y’s desire to take this school trip. Undoubtable, it would promote his best interests to be able to travel with his school cohort and enjoy an overseas trip with them.

11. The children have clearly a very close relationship with their mother. For reasons unknown to the Court, their relationship with their father is currently non-existent in the sense that they do not spend any time together.  The mother has demonstrated that she has a proper approach to the responsibilities of parenthood and, as she indicated in her evidence, if she thought there was any difficulty or possible health difficulties with her son, Y, she would not allow him to travel on the trip.  That evidence is compelling.

12. It is difficult to see how the father’s maintained objection to the issue of passports for the children could be considered reasonable in any respect. On the basis of the evidence as contained in the mother’s Affidavit sworn 16 January 2015, her oral evidence this day, and the oral evidence of the father, the Court accedes to the application of the mother. 

13. The mother has also sought an order for costs in respect of this application. That requires a turning to s.117 of the Act and the considerations that are set out therein. Section 117(2) of the Act provides:-

    “If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.”

14. Section 117(2A) of the Act sets out matters the Court “shall” have regard to. I now do so. The father has been entirely unsuccessful in his unmeritorious opposition to this application. He is in receipt of a welfare payment. The mother is in receipt of considerable income via her employment as an (occupation omitted). There may be some difficulty in the father meeting any costs order the Court may impose out of income. However, the father has an interest in a real property which is the subject of litigation between the parties in the County Court of Victoria. Throughout this proceeding the father’s questioning of the mother was in large part irrelevant. It also contained elements of harassment. The mother set out in writing on 1 December 2014 what it was that was required of the mother and the father, and the father declined to take any action in respect of the proposal of the mother. These proceedings could easily have been avoided, and indeed should have been avoided. Taking these matters into account in the exercise of my discretion, I propose to make a costs order in favour of the mother. I will stay the payment of same until the receipt of any funds by the father, or the transfer of property to him as a consequence of the property proceedings being presently litigated between the parties in the County Court of Victoria.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  17 March 2015