The teenager has been living in New
Zealand with her mother for several years. In 2017, an interim parenting order was issued after an ongoing custody battle between her mother and her father, who still lives in Germany.
In April 2024, the Family Court granted her mother the right to be the sole signatory for their daughter’s passport application after her ex refused to co-sign an application.
Now, the father has tried to challenge that decision in the High Court, where he claimed that, according to the law of the Federal Republic of Germany, he had sole custody.
As a result, he believed he was solely entitled to decide on the issue of the passport.
He also claimed his daughter had been “kidnapped to New Zealand” in 2015, and accused the lower court of acting unlawfully in its decision.
The teen’s father sought a review of a Family Court decision granting his former partner the right to be the sole signatory for their daughter’s passport application, after he refused to co-sign an application. Photo / 123rf
The Family Court’s decision was focused on the teen’s welfare and best interests, including her wish to have her own passport.
Judge Christina Cook said in that decision the girl was of an age where she needed a form of identification for opening a bank account, for immigration purposes, for medical and administrative reasons, and for travel.
“She is resident in New Zealand and there is no alternative identification document she can apply for,” she said.
“Without such a document, it is not clear that the young person can obtain an IRD [Inland Revenue Department] number, she is not able to obtain a driver’s licence and she is not able to work because she has no IRD number. She is not able to travel.”
Judge Cook said the teen’s sister had travelled to Germany and she was “very sad” that she had not been able to accompany family on that trip.
“She is currently studying German and there are opportunities for international travel which she cannot take up.”
The father challenged the decision on three grounds, including that his right to be heard was “violated by the Family Court”, that he did not receive any information about the hearing and that by the time he became aware of it, he was not available.
In a recently released High Court decision, Justice Michele Wilkinson-Smith rejected this and found that on the balance of probabilities, the man was served the relevant paperwork and did have an opportunity to be heard, but did not make himself available.
He also claimed the decision was unlawful and unreasonable because the court “did not have the authority to make a decision to issue a German passport”.
He wanted the court’s order withdrawn and costs awarded in his favour.
Justice Wilkinson-Smith dismissed his application for a judicial review, after finding the Family Court decision was neither unreasonable nor unlawful under the Care of Children Act.
She said that the Family Court order simply allowed the mother to apply for a passport without the consent of the teen’s other guardian.
It was not about whether the German authorities would grant the mother’s application and issue a passport.
Whether it was enforceable by the German embassy was irrelevant.
“I agree that the order was within the jurisdiction of the Family Court to make,” she said.
The father claimed her mother had acted for her own reasons and not those of their daughter and alleged that the lower court was “not aware of relevant facts” in making its decision.
That included his claim that if his daughter travelled to Europe now, she would be detained on arrival at the border.
Justice Wilkinson-Smith said the man’s claims that she would be detained upon arrival in Europe, pursuant to a German alert, was an ingredient, but whether it was in the interests of the young person to travel to Europe was not the only question.
She said the teen needed a passport for reasons other than travel.
In dismissing his application, she said the Family Court had the jurisdiction to make the decision, which she ruled was reasonable and lawful.
Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.