Donnelly and Mulholland & Anor

[2018] FamCA 416

FAMILY COURT OF AUSTRALIA

DONNELLY & MULHOLLAND AND ANOR [2018] FamCA 416

FAMILY LAW – CHILDREN – Family Dispute Resolution – Parentage – Where the applicant sought interim orders compelling the respondents to participate in a dispute resolution conference and to participate in parentage testing – Where the Court is not satisfied that there is a basis for making such an order to compel the respondents to participate in dispute resolution counselling, even though the practical opportunity for that has already passed – Where the applicant’s application for interim orders is dismissed.

FAMILY LAW – DECLARATION – Legitimacy – Where the applicant seeks an order under s 92(1) of the Marriage Act 1961 (Cth) declaring that he is the legitimate child of the respondents – Where the Court is not satisfied on the evidence that the applicant has proven to the standard necessary that he is the biological child of the respondents – Where the applicant’s application for final orders is dismissed.

British Legitimacy Act 1976
Family Law Act 1975 (Cth)
Marriage Act 1961(Cth)

Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365

APPLICANT: Mr Donnelly

FIRST RESPONDENT: Mr Mulholland

SECOND RESPONDENT: Ms Mulholland

FILE NUMBER: BRC 2827 of 2018

DATE DELIVERED: 8 June 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 29 March 2018

REPRESENTATION

THE APPLICANT:	In Person
THE RESPONDENTS:	No Appearances

Orders

1. That the Initiating Application filed 9 March 2018 seeking interim and final orders, is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2827 of 2018

Mr Donnelly

Applicant

And

Mr Mulholland

First Respondent

And

Ms Mulholland

Second Respondent

REASONS FOR JUDGMENT

1. By Initiating Application filed on 9 March 2018, the applicant seeks, by way of final relief, an order under s 92(1) of the Marriage Act 1961 (Cth) (“the Marriage Act”), declaring that he is the legitimate child of Mr and Ms Mulholland.

2. The applicant also sought certain interim orders. He asked for an order under s 60I(10) and s 69V of the Family Law Act 1975 (Cth) (“the Family Law Act”) compelling the named respondents (“the Mulhollands”) to participate in a dispute resolution conference with him whilst they were in Brisbane for the recently staged Commonwealth Games. He also asked for an order that they participate in parentage testing under s 69W of the Family Law Act, as well as orders restricting publication of certain documents.

3. On 15 March, after reading the material sought to be filed, I made certain Orders in chambers. I allowed the material to be filed and listed the matter to hear submissions on 29 March 2018 as to the “appropriate disposition of the matter”. I caused notice of the application and the listing of it to be given to the Attorneys-General of the Commonwealth of Australia and the State of Queensland as s 92(4)(a) of the Marriage Act provided for. I also made an order that the applicant take no steps to serve or cause service of the application on the respondents without further order of the Court. I also made a notation that I expected to hear submissions in respect of certain matters that I considered were raised on my first reading of the applicant’s application and supporting affidavit.

4. The Court was informed by each of the Attorneys-General prior to 29 March that neither intended to enter an appearance. Accordingly, on 29 March 2018, only the applicant appeared, without legal representation. I heard oral submissions from him that day.

The Final Relief Sought

1. Section 92 of the Marriage Act permits a person to apply to this Court for an order declaring that the person is the legitimate child of his or her parents and the section empowers the Court, “in its discretion”, to make the order. Where the Court makes an order upon the application, it may include in the order such particulars in relation to the legitimacy or legitimation of the person to whom it relates as the Court finds to be established. An order made under the section binds the Crown in right of the Commonwealth or of a State, whether or not notice was given to the Attorney-General of the Commonwealth or the State.

2. Relevantly, pursuant to s 90 of the Marriage Act, headed “Legitimacy of children of certain foreign marriages”, provides that where the parents of a child born illegitimate have married each other and the marriage took place outside Australia and neither parent of the child was domiciled in Australia at the time of the marriage and the law of the place where a parent of the child was then domiciled recognised the status of illegitimacy but, by that place’s law the child was legitimated by virtue of the marriage, the child is for all purposes the legitimate child of his or her parents as from the time of the marriage. All of those things being established, would, in my view, prima facie, be good grounds to support the making of a declaration pursuant to s 92.

3. Section 2 of the British Legitimacy Act 1976 headed “Legitimation by subsequent marriage of mother and father” provides that where the mother and father of an illegitimate person marry one another, the marriage, shall, if the father of the illegitimate person is at the date of marriage domiciled in England and Wales, render that person, if living, legitimate from the date of the marriage.

4. Mr and Ms Mulholland married in, 2005. Accordingly, if they are the biological parents of the applicant who says he “was allegedly born [in] 1966 in [B Town]”, in the United Kingdom, then by UK law he might be their legitimate child from the date of their marriage and also by Australian law. Of course, that does not have regard to the potential impact upon the circumstances that a lawful adoption order made in favour of the applicant’s adopting parents might have made. I heard no submissions in respect of this point and can make no finding on it in this judgment. In the end, it makes no difference to my determination in any event.

5. If I was ultimately satisfied that the applicant is the child of the Mulhollands, and there was no other legal impediment, it is possible that I could make an order declaring the applicant to be their legitimate son. However, having read the affidavit of the applicant, even without having had any evidence adduced by or on behalf of the respondents, I am respectfully not convinced that the applicant is their child.

6. Clearly, the applicant appreciates that he confronts difficulties in this regard, hence his application for interim orders that the respondents participate in a dispute resolution conference with him and parentage testing, those orders being sought under the Family Law Act.

7. It was in respect of that issue, that I gave the applicant advance warning that I would expect to hear submissions as to the following questions:

   (i)Is, by this Initiating Application, the parentage of a child raised as an issue in proceedings under the Family Law Act sufficient to give rise to the discretion to make orders conferred by s 69V and s 69W of the Family Law Act?; and

   (ii)What power, if any, arises out of s 67ZC of the Family Law Act, in the context of this application?

8. Section 69V of the Family Law Act provides:

   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 the question. (my emphasis added)

9. Section 69W of the Family Law Act also provides:

   (1)  If the parentage of a child is a question in issue in proceedings under this Act, the court may make an order (a parentage testing order) requiring a parentage testing procedure to be carried out on a person mentioned in subsection (3) for the purpose of obtaining information to assist in determining the parentage of the child. (my emphasis added)

10. Section 31 of the Family Law Act, relevantly confers jurisdiction on this Court with respect to “matters arising under this Act” as well as “matters arising under the Marriage Act 1961 in respect of which proceedings (other than proceedings under Part VII of that Act) are instituted or continued under that Act”. Section 92 of the Marriage Act is not within Part VII of that Act.

11. In my judgment, jurisdiction is thereby clearly conferred on this Court in respect of matters arising under the Family Law Act and, quite distinctly, in respect of matters arising under the Marriage Act.

12. The applicant’s substantive application invokes the jurisdiction of this Court conferred by s 31 of the Family Law Act on this Court in respect of a matter arising under the Marriage Act. He is not, in terms of the substantive relief he seeks, invoking this Court’s jurisdiction to deal with a matter arising under the Family Law Act. He makes no application for any substantive, final relief that this Court has power to give pursuant to a provision of the Family Law Act.

13. So, where the applicant does not seek any substantive, final orders in what might, in traditional terms at least, be called “a cause of action” arising under the Family Law Act, such as, for example, a parenting order or a child maintenance order, I do not consider that it can be said that “the parentage of a child is a question in issue in proceedings under this Act” such as is required as a pre-condition to the use of the power to make orders conferred by s 69V and s 69W. Whilst the parentage of a person, namely the applicant, may be a question in issue in the proceedings commenced under the Marriage Act, his parentage is not a question in issue in any proceedings for substantive relief under the Family Law Act.

14. Accordingly, I do not consider the discretion, conferred in s 69V and s 69W of the Family Law Act, to make an order for the respondents to participate in a parentage testing procedure or requiring them to give such evidence as is material to the question of parentage of the applicant is lawfully enlivened in the circumstances of this case.

15. Before I go on though, I turn to consider the applicant’s submissions in respect of s 67ZC of the Family Law Act. That section provides:

    In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.

16. The applicant argued that the substantive proceedings pursuant to the Marriage Act have a bearing on the welfare of him and his six children with his partner, four of whom are still under 18 years of age. Essentially, his argument was, as I understood it, that because the substantive proceedings, though under a different statute than the Family Law Act, have a bearing on his welfare and his children’s welfare that the interim orders he seeks pursuant to powers conferred on the Court in the Family Law Act are nevertheless supported separately by s 67ZC because they are “orders relating to the welfare of children”.

17. With all due respect to the applicant, I reject the argument. The High Court determined in Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 that the valid application of s 67ZC is dependent upon some other provision in Part VII of the Family Law Act creating a “matter” to which the jurisdiction conferred by s 67ZC can attach, such as, for example, an application for a specific issue parental responsibility order brought by a parent in respect of his or her child. Section 67ZC does not independently of any of the other provisions in Part VII give rise to a right in any person to seek any order that can in some way be linked to the welfare of a child. It was held that nothing in s 67ZC, or in Part VII generally, imposes, either expressly or inferentially, any duty or liability on third parties to act in the best interests of or to advance the welfare of a child. Part VII is concerned with the relationship between parents and children and parents’ duties in respect of their children. It follows that a person seeking a declaration of legitimacy under the Marriage Act cannot seek to compel a named third party to participate in parentage testing or to give evidence in relation to parentage issues relying on s 67ZC as a stand-alone source of the invocation of jurisdiction under the Family Law Act simply because that person asserts that named third party is their putative parent.

18. Part VII of the Family Law Act was not intended, it was said in Minister for Immigration and Multicultural and Indigenous Affairs v B, to give this Court a general jurisdiction over children with the power to make an order against individuals whenever the best interests of a child require such an order to be made.

19. Accordingly, I am not satisfied that I can make the orders the applicant seeks compelling the respondents to give evidence material to the question of his parentage or to participate in a parentage testing procedure. Satisfied of that, I am therefore also satisfied that there is no basis for making the order the applicant seeks under s 60I(10) of the Family Law Act compelling the respondents to participate in dispute resolution counselling, even though the practical opportunity for that has already passed. There are no valid Part VII proceedings on foot to which they are respondents, so no dispute resolution counselling is actually required.

20. Finally, as I have already observed that on the evidence adduced by the applicant, I would not exercise the discretion to make the declaration of legitimacy he seeks because I am just not satisfied at all on that evidence that he has proven to the standard necessary that he is the biological child of the respondents, I will dismiss his application. I do not consider it necessary to set out any further in these reasons the obvious deficiencies in the evidence that caused me to take this view, but I did discuss them with the applicant at the hearing on 29 March 2018 at which time he appeared to readily acknowledge the reasonableness of my observations. The transcript would reveal those matters to which I refer.

21. I dismiss the applicant’s application filed 9 March 2018 in respect of both the interim relief and final relief sought in it.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 8 June 2018.

Associate

Date:  8 June 2018