FCMX and Minister for Foreign Affairs [2017] AATA 740 | Case summary

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 nonconsenting 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:

(a) the rights of the child to travel internationally; or

(b) who has parental responsibility for the child.

Note: For the purposes of section 11 of the Australian Passports Act, parental responsibility has the meaning given by subsection 11(5) of the Australian Passports Act.

(3) The circumstances are as follows:

...

(d) there has been no contact (including contact in person or by telephone, mail or email) between the child and the nonconsenting parent for a substantial period before the application is made;

...

(g) a family violence order has been issued against the nonconsenting parent

...

The mother wrote to the Department of Foreign Affairs and Trade on 3 April 2015 seeking an internal review of the decision to refuse to issue a passport to the child. The mother said that the child has resided with her since birth. She stated that the father has had no physical or other contact with the child since June 2012 and has made no attempts to initiate contact. She described her former relationship with the father as one of physical and psychological abuse on his part, and in 2012 she applied for an intervention order against him. She said that the matter was resolved on 12 August 2012 by the father making an undertaking to the court for 12 months. The mother claimed that it was the father who ceased all contact with the child. She added that refusal of the passport application has prevented her parents from taking the child to see his relatives in the United Kingdom, and that the child feels left out. She said that she was concerned that this would affect him and his future life endeavours.
At the hearing the mother told the Tribunal that she has had the same mobile telephone number for six years and that the father has not contacted her during this period. She said that he would have had her Facebook and email addresses as well. She acknowledged that she has not provided any information to the father or his family about the child's schooling, progress or welfare, and explained that she told the father before the court proceedings in 2012 that she was changing her address, although she did not provide any contact details to him at the time. The mother agreed that she has not contacted the father since then, although she had a recollection of possibly sending him a text message about four years ago to provide contact details, but had no memory of the contents of the text and had not kept a copy. She maintained that the line of communication has been open but that the father has chosen not to make contact, indicating to her that he does not care about the child.
The mother gave evidence that that the proposed trip to the United Kingdom did not proceed because the child's grandparents wanted to take a number of their grandchildren to the United Kingdom to visit relatives and preferred not to undertake the trip without the child. She maintained she was concerned that the father had indicated that he would seek to remove the child from her care if contact is permitted, and she did not see any reason to initiate or promote contact. The mother told the Tribunal that a mobile telephone number claimed by the father to be hers was incorrect, and she could not recollect whether it was a number that she had used some years previously. She also said that an email address claimed by the father to be hers was in fact incorrect by one digit.
In a statutory declaration dated 21 April 2016 the father stated that he has made numerous unsuccessful attempts to contact the mother and her relatives through telephone, email, social media and the mother's friends. He said that the mother and her parents moved residence at the same time and left him and his family with no forwarding address or other contact details. He explained that the mother and her family have made no attempt to contact him since 2012, despite his telephone number and email address remaining unchanged for seven years, and his contact details being available to the mother. The father stated that after family mediation there was a verbal agreement regarding his contact with the child but that the mother had not complied.
The father told the Tribunal that the mother has hindered every attempt he has made to have contact with the child, and he feared that she may attempt to flee with the child if a passport is issued. At the hearing he gave details of the mother's mobile telephone number that he and his brother had obtained, but said that this had been disconnected. He also referred to an email address which he said had been the mother's, but this had proved to be incorrect. At the hearing he said that the mother was aware of his telephone number and email address.
In a statutory declaration dated 12 October 2015 the mother's sister said that the father had not tried to make any form of contact with the mother for nearly three years. She said that everyone in the mother's family has had the same mobile telephone number and email address, and that the mother has never prevented the father from seeing the child. She asserted that the lack of contact had been caused by the father's inaction. In a statutory declaration dated 14 October 2015 a friend of the mother said that the father has not tried to contact the mother's family for three years.
The child's maternal grandmother told the Tribunal that the father has made no efforts to contact the mother or the child since 2012. She said that her own contact details and those of her family have not changed for a number of years. She stated that the father has not contacted her or any of her relatives since 2012. She explained that the purpose of the holiday was to take the grandchildren on a cruise to New Zealand and there was never any proposal to visit the United Kingdom.
In a statutory declaration dated 20 April 2016 the father's partner stated that the father has made numerous unsuccessful attempts to contact the child and that the mother has been unwilling to provide any contact details or to cooperate in any way. She told the Tribunal that she and the father recently married, and had attempted unsuccessfully to contact the mother to seek the child's attendance at the wedding.
The Tribunal takes into account that the mother agreed that she and her parents changed address without informing the father. If the father did not have current contact details of the mother, the allegations that contact has been unsuccessful because of the father's inaction, cannot be substantiated.
The father gave evidence that he unknowingly used an incorrect mobile telephone number and email address provided to him by the mother when he was seeking to make contact. By the mother's own admission this email address was similar to her correct address but differed by one digit. However, that email address is markedly different from the email address listed by the mother for herself or the child in the application to the Tribunal for review, casting significant doubt on her claim that her contact details have not changed in six years.
In addition, the Tribunal does not accept that the mother gave the father her contact details at any time since 2012. The mother gave evidence at the hearing that she sent the father a text message providing contact information some four years earlier. This evidence was vague and was inconsistent with her overall position that it was the father's inaction that caused the lack of contact, and sending the text message would have divulged her telephone number to him, which she has actively prevented. The mother's evidence about the purpose of the proposed short overseas trip to visit relatives in the United Kingdom was contradicted by the maternal grandmother, whose evidence about intending to take the grandchildren on a cruise to New Zealand was more plausible.
For these reasons the Tribunal prefers the evidence from the father and his partner that he has made constant efforts since 2012 to contact the mother in an attempt to resume a relationship with the child. The Tribunal finds that contact between the father and the child has not occurred during that time because the mother has refused to provide contact details and has actively prevented the father from making contact. In respect of whether section 2.1(3)(d) of the Determination applies because of the length of time since contact between the father and the child, the totality of the evidence before the Tribunal indicates that the last contact was sometime in 2012. The Tribunal finds that the period of time between the last contact and the date of application for the passport (9 January 2015) is very close to 3 years, if not 3 years. Notwithstanding the lack of a concrete date on the evidence of the 'last contact' between the father and the child, the Tribunal finds that there has been no contact between the child and the father for a substantial period of time before the application for the passport was made. However, for the reasons outlined below, it is not appropriate for the Tribunal to exercise its discretion to issue the passport.
As noted above at paragraph [7], the power to issue a passport in special circumstances is discretionary. This is evident from the wording of s 11(2) of the Act, which states that the existence of special circumstances does not prevent the Minister from issuing a passport. Similarly, although the Determination cannot be used to alter the nature of the power contained within s 11(2) of the Act, section 2.1(1) of the Determination states that the special circumstances outlined in the Determination are special circumstances in which the Minister may issue a passport to a child.
The Tribunal further notes that paragraph 24 of the Explanatory Memorandum to the Australian Passports Bill 2004 states that "the objects of the provisions relating to issuing passports to children are to protect a child from abduction and to protect the rights of parents". Similarly, the Explanatory Statement to the Determination indicates at paragraph 8 that "Even if an applicant satisfies one or more of the special circumstances, the Minister may refuse to issue a passport to meet the objectives of protecting a child from abduction or protecting the rights of a parent".
Noting that the power to issue a passport in special circumstances is discretionary and that it is clear on the evidence that the mother has made active efforts to exclude the father from the child's life (in the absence of a court order allowing her to do so), it would be contrary to the objective of protecting the rights of parents contained within both the Act and the Determination for the Tribunal to exercise its discretion on the basis of the existence of this special circumstance. Therefore, although finding that there has been a substantial period of no contact between the child and the father, the Tribunal decides to not exercise its discretion under s 11(2) of the Act on that basis of that special circumstance.
In respect of section 2.1(3)(g) of the Determination (whether a family violence order has been issued), on 19 October 2015 the mother provided the respondent with a copy of an Application for an Intervention Order under the Family Violence Protection Act 2008 (Vic) and an Undertaking given by the father. The Tribunal is satisfied that no family violence order has been issued against the father, so this does not constitute a special circumstance. Therefore, s 11(2)(a) of the Act does not enliven the discretion to grant a passport to the child on the basis of section 2.1(3)(g) of the Determination.
In respect of s 11(2)(b) of the Act (the child's welfare), the mother claimed that the child would be adversely affected if prevented from travelling internationally. The Tribunal considers that the child may indeed feel left out or disappointed not to be included in the proposed short holiday, but there is no evidence to suggest that the child would suffer any physical or psychological harm or long-term damage to his life endeavours. There would be ample opportunity for the grandparents to take the child and other grandchildren on holidays within Australia, and contact with relatives living overseas could be maintained by other methods. As such, s 11(2)(b) of the Act does not apply to the child's application for a passport.

FCMX and Minister for Foreign Affairs [2017] AATA 740 (23 May 2017)

At a glance

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Judgment (25 paragraphs)

Legislation Cited (2)