Bima And Anor

[2014] FamCA 1170

FAMILY COURT OF AUSTRALIA

BIMA AND ANOR [2014] FamCA 1170

FAMILY LAW – PRACTICE AND PROCEDURE – Application for declaration of parentage dismissed – Held the application was not related to an issue of parentage for the purposes of the Family Law Act but for an immigration matter.

Family Law Act 1975 (Cth) s 69V, 69VA

Jago v District Court of New South Wales (1989) 168 CLR 23
McK v O (2001) FLC 93-089
Re Majory [1955] Ch 600

APPLICANT: Mr Bima and Ms Wibowo

FILE NUMBER: ADC 3576 of 2014

DATE DELIVERED: 12 December 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Berman J

HEARING DATE: 12 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Finlayson

SOLICITOR FOR THE APPLICANT: Greg Finlayson Solicitor

Orders

1. That the Initiating Application filed 3 October 2014 is dismissed.

2. That the proceedings are removed from the pending list of cases.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bima and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: ADC 3576 of 2014

Mr Bima and Ms Wibowo

Applicant

EXTEMPORE REASONS FOR JUDGMENT

1. By Initiating Application filed 3 October 2014, the applicant father, Mr Bima, seeks final orders that the court declare that the applicants are the parents of R (“the child”).  It should be noted that the second applicant to the proceedings is Ms Wibowo.  There is no doubt on the affidavit material filed that Mr Bima is the father of the child.   He acknowledges, however, that his wife, Ms Wibowo, is not the biological parent of the child, the child R being a child of a former relationship involving Mr Bima and the child’s mother. 

2. The application has a curious history in that it appears to have been first filed in the Adelaide registry of this court and it is noted that the file number is an Adelaide reference.  It was subsequently refiled in the Melbourne registry of this court and that is where it has been heard.  The application came before Cronin J in his Honour’s duty list on 27 November 2014.  At that time the respondent to the proceedings was the Minister for Immigration and Border Protection. 

3. An application was made by the Minister that he be disjoined and removed as a party to the proceedings. That application was opposed by the applicants. His Honour heard argument and judgment was delivered on 9 December 2014 in respect of disjoinder and whether proceedings under s 69VA of the Family Law Act 1975 (Cth) (“the Act”) could or should proceed without a contradictor.

4. Ultimately, the application of the Minister was successful and his Honour’s orders reflect that the respondent be removed as a party to the proceedings.  Putting aside costs issues, his Honour then adjourned the proceedings to 12 December 2014 for a final hearing.  As matters have transpired, the solicitor for the applicants appear by video link from Adelaide and I hear the matter sitting in Melbourne. 

5. I do not propose to repeat the matters raised in his Honour’s detailed reasons for judgment.  His Honour sets out the history appropriately. The husband said that he and his wife were married in a customary ceremony of marriage in Indonesia in March 2013 and that marriage was registered at a civil office in April 2013.  Following a customary adoption process and the marriage, a new birth certificate was issued on his application that showed the child to be a child of that marriage.  He annexes a copy of the certificate that describes as the birth certificate for the child arising out of this adoption process in 2013.

6. His Honour then found that the evidence was questionably inadmissible in that the husband asserted that because he spoke and read the Indonesian language, he was able to interpret the certificate.  It is noted that he gave no indication of expertise as to his qualification to give that opinion, but it is reasonable to opine that the position adopted by the applicant is that whilst the child was born in January 2008, being the child of the applicant father and the child’s mother, the reference to “Child Number 1” refers to the marriage of he and Ms Wibowo.  It is noted by his Honour that no evidence was put forward as to what this adoption process meant in law and no expert evidence was otherwise provided.

7. It would seem clear from the submissions made by the solicitor appearing as counsel for the applicants that the primary focus of the application, namely a declaration under s 69VA was to secure the entry of and the provision or granting of a visa to Ms Wibowo to enter the Commonwealth of Australia. There is correspondence and communication, as his Honour notes, between the delegate of the Minister and the solicitor for the applicant.

8. I do not necessarily consider that I need to look at the correspondence, but it seems from the submissions that there is a dispute between the Minister and the applicants as to the appropriateness of the immigration application and a concern that the Minister has as to certain underlying information as to the interrelationship between the applicants, the child and the circumstances surrounding the wording and the implication in the birth certificate.  They are not matters that I consider are relevant to the determination of this application. 

9. It is clear from the submissions made this morning that the focus of the declaration in respect of s 69VA is not for the purpose of any other application under the Act, but rather it being able to be used in the application relating to the immigration dispute between the Minister and Ms Wibowo. It is put to me today that the purpose is to secure a declaration that is conclusive evidence of parentage for the purpose of all laws of the Commonwealth.

10. Demonstrably, his Honour was critical of the manner in which the application was brought before him, in particular relating to the underlying evidence.  His Honour was concerned that the applicant was not properly qualified to provide an accurate translation of the birth certificate, which is critical, it seems, to the proceedings as brought by the applicants.  His Honour was of the clear view that there is an easy and proper remedy in respect of matters of translation, and that is to employ the services of an accredited translator rather than allow one of the parties to conduct the translation exercise.

11. Even if, however, it is accepted that the translation by Mr Bima is accurate, it is not suggested that the applicants in general or Mr Bima in particular is able to provide any opinion as to Indonesian law and the relationships between the parties and the child, matters of adoption and what proper implication or conclusion can be drawn from the birth certificate.  It may be that that is the only document available.  It may be that there is a raft of collateral information which was prepared in support of an application for a formal adoption process.  In any event, his Honour commented on the vacuum of information relating to the contention put forward by the applicants that a formal adoption process has been undertaken with a successful outcome in that the child is considered, under Indonesian law, to be the adopted child of Ms Wibowo.

12. Presumably, the deficiencies in the manner in which the matter went forward before his Honour resonated with the applicants and upon the matter being called on this morning, an application for an adjournment was made for the express purpose of exploring what other information might be available but, in any event, to supplement the evidence currently before the Court.

13. I have considered that application but do not propose to grant it. The question was posed to counsel as to why the matter was proceeding at all before me if the focus did not involve any other application under the Act but rather to secure a declaration which would have a subsequent and separate purpose, namely in relation to dealings with the relevant department relating to immigration issues affecting Ms Wibowo. It is put to me that because the Minister apparently holds an adverse view, that in some way that avenue is closed and this court should then hear and determine the matter.

14. I disagree with that proposition.  It could not be that the Minister has reached a concluded position because by the very nature of the submissions made today, there is further evidence that the applicants would wish to put before this court, namely matters relating to a proper translation of the birth certificate, presumably some further evidence from the applicants themselves but, more importantly, some evidence upon which the applicants would rely relating to the process by which they say there has been a formal and approved adoption of the child by Ms Wibowo under Indonesian law. 

15. I am assuming, and I think it reasonable to do so, that the information is not yet available, otherwise it would be put before me.  If it was, it could be placed before the Minister.  It may be that the Minister’s view may be altered by that information.  Obviously that process has not been undertaken. Demonstrably though, it would be the same consideration that I would be asked to give in the sense that I would need to look at that information and hear and determine the matter upon the provision of what further matters the applicants would wish to put before the court.   

16. The considerations by the Minister and by me under the Act are two different issues and have two different foci, but to the extent that it appears there may be a coincidence of evidence in terms of adoption, it could not be said that the Minister’s position will not or could not change upon the Minister being satisfied of the further information relating to the purported adoption of the child by Ms Wibowo. It is said to me that if the question of adoption is resolved favourably to the applicants, that is they are able to establish a valid and proper adoption process under Indonesian law has taken place with the successful outcome as purported, this then enables consideration under s 69VA of the Act.

17. I do not consider that s 69VA can stand alone. Rather, I consider that it is by way of ancillary relief following an application in this court directed to the issue of parentage. Section 69V of the Act provides as follows:

    If the parentage of a child is a question in issue in proceedings under this Act, the court may make an order requiring any person to give such evidence as is material to that question.

18. This section is important because it relates to a question in issue in proceedings under the Act. Section 69W sets out the provisions necessary for the carrying out of parentage testing procedures. When consideration is given to s 69VA, it provides that:

    As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of the proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.

19. Section 69VA did not always form a part of this section of the Act. It was included specifically to give effect to proceedings that related to a parentage dispute. That is, once evidence has been presented to the court that determined the parentage of a child or children, the issue thereafter was how that would be recognised. Prior to the inclusion of s 69VA in the proceedings, there was no mechanism for that process.

20. In the decision of McK v O (2001) FLC 93-089, Mullane J had to consider the very question of whether a paternity declaration should be made where there were no other current proceedings. In that case, the alleged father was dead. His Honour found that the inclusion of s 69VA by its necessary terms implied that parliament did not concede it to be capable of reliance upon as a separate head of power. That is, there is no separate section or power in the Act to make a declaration of parentage. There is no other express power in the Family Law Act to do so. Section 69VA is the only power.

21. His Honour was of the view therefore, that in the absence of any other proceedings relating to parentage, upon the clear terms and reading of s 69VA there is no scope for the application of the section. In relation to the current proceedings, there is no issue as to matters of parentage. There is no application or indeed, a dispute between the Court in relation to matters of parentage. Whilst it was suggested at the commencement of the proceedings that what would be put before the Court was evidence that the applicant father was, in fact, the biological parent of the child, that seems to me to be an unnecessary step.

22. Even if I accept that what the father says is correct, and I have no reason to think otherwise, there is no dispute before the Court in respect of matters relating to the father’s parentage. The issue relates clearly to Ms Wibowo. The applicants, by the very nature of the application and the history that they provide, show and demonstrate that Ms Wibowo is not the biological parent. There is no parentage dispute. It may be that Ms Wibowo can be shown to have lawfully adopted the child. That is a matter as yet uncertain. Nothing is presented to the Court in that regard, but even if that were to be the case, in my opinion, that is not sufficient for s 69VA to be invoked.

23. There is no dispute between the parties. There is no respondent to the proceedings and it must be assumed that the focus has nothing to do with an issue of parentage for the purposes of the Family Law Act, but rather for some other purpose, that is, not relating to parentage, but relating to matters of Ms Wibowo’s ability to gain immigration status within the Commonwealth of Australia. That process demonstratively has not been exhausted if, for no other reason, than the information that the applicants would wish to put to this Court is not yet available and presumably, has not yet been put to the Minister or the Minister’s department for his or their consideration and determination.

24. Indeed, I have had regard to whether the process may indeed amount to an abuse of process in respect of the purpose for which the application is brought.  The general principle where an applicant seeks to obtain a result outside of the scope of the remedy was stated by Lord Evershed in Re Majory [1955] Ch 600 at page 623 and 624:

    …[T]he court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court and therefore disqualified from invoking the powers of the court by proceedings he has abused.

25. It is a consideration but not a determination that this application falls into that category.  I also note the remarks of Brennan J in Jago v District Court of New South Wales (1989) 168 CLR 23 at page 47 and 48:

    …An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve…Although it is not possible to state exhaustively all the categories of abuse of process, it will generally be found in the use of criminal process inconsistently with some aspect of its true purpose, whether relating to the hearing and determination, its finality, the reason for examining the accused’s conduct or the exoneration of the accused from liability to punishment for the conduct alleged against him…

    I do not think that I need to consider further whether the application is an abuse of process. I am able to find that on the information and evidence currently presented, noting that the matter was listed for a final hearing this day, that there is no parentage dispute and as such, the submissions are dependent upon this Court, in effect, making what I describe as a stand alone declaration of parentage.  I do not consider the authorities support such a contention and I do not propose to make the declaration as sought by the applicants. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 12 December 2014.

Associate: 

Date:  22 December 2014