FMR18 v Minister for Home Affairs
[2018] FCA 1632
•1 November 2018
FEDERAL COURT OF AUSTRALIA
FMR18 v Minister for Home Affairs [2018] FCA 1632
File number: NSD 710 of 2018 Judge: MARKOVIC J Date of judgment: 1 November 2018 Catchwords: MIGRATION – entitlement to citizenship – where the applicant was born in China – where the applicant’s claimed father is an Australian citizen – where no DNA testing was done to confirm whether the applicant’s claimed father was in fact the biological father of the applicant – whether the applicant is an Australian citizen by descent under s 10B of the Australian Citizenship Act 1948 (Cth) and now an Australian citizen under s 4(b) of the Australian Citizenship Act 2007 (Cth) – whether non-publication orders should be made pursuant to s 37AF(1)(a) of the Federal Court of Australia Act 1976 (Cth) prohibiting the publication of information tending to reveal the applicant’s identity and the identities of her litigation guardian and father – application allowed. Legislation: Australian Citizenship (Transitionals and Consequentials) Act2007 (Cth) Sch 1, Pt 2, Item 42
Australian Citizenship Act 1948 (Cth) ss 10B, 52A
Australian Citizenship Act 2007 (Cth) ss 4(b), 16(2)
Family Law Act 1975 (Cth) s 121
Federal Court of Australia Act 1976 (Cth) ss 37AI, 37AE, 37AF(1)(a), 37AG(1)(a)
Judiciary Act 1903 (Cth) s 39B(1A)(c)
Cases cited: CFB18 v Reader Lawyers & Mediators [2018] FCA 611
Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649
H v Minister for Immigration and Citizenship (2010) 188 FCR 393
Kim v Minister for Immigration and Border Protection (2016) 248 FCR 263
Lee v Minister for Immigration and Citizenship (2011) 199 FCR 336
Date of hearing: 18 October 2018 Date of last submissions: 22 October 2018 (Applicant)
The Respondent did not provide further submissionsRegistry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 56 Counsel for the Applicant: Mr N Poynder Counsel for the Respondent: Mr G Johnson Solicitor for the Respondent: Australian Government Solicitor ORDERS
NSD 710 of 2018 BETWEEN: FMR18 BY HER LITIGATION GUARDIAN FSH18
Applicant
AND: MINISTER FOR HOME AFFAIRS
Respondent
JUDGE:
MARKOVIC J
DATE OF ORDER:
1 November 2018
THE COURT DECLARES THAT:
1.When the applicant was born on 11 July 2006 she was an Australian citizen by descent under s 10B of the Australian Citizenship Act 1948 (Cth) and the applicant is now an Australian citizen under s 4(1)(b) of the Australian Citizenship Act 2007 (Cth).
THE COURT ORDERS THAT:
2.Until further order, pursuant to s 37AF(1)(a) of the Federal Court of Australia Act 1976 (Cth) and on the ground that the order is necessary to prevent prejudice to the proper administration of justice:
(a)information tending to reveal the identity of the applicant, the applicant’s litigation guardian and the former husband of the applicant’s litigation guardian not be published;
(b)the name of the applicant currently appearing on the application and later documents continue to be substituted by a pseudonym; and
(c)the name of the applicant’s litigation guardian currently appearing on the application and later documents be substituted by a pseudonym.
3.The respondent pay the applicant’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MARKOVIC J:
The applicant, a minor who appears by her litigation guardian, seeks a declaration that when she was born on 11 July 2006, she was an Australian citizen by descent under s 10B of the Australian Citizenship Act 1948 (Cth) (1948 Act) and that she is now an Australian citizen under s 4(b) of the Australian Citizenship Act 2007 (Cth) (2007 Act).
Determination of the applicant’s entitlement to the relief claimed raises a single issue for consideration namely, whether the applicant’s claimed father (Father) is a “parent” of the applicant for the purposes of a grant to her of Australian citizenship by descent. The respondent (Minister) contends that the applicant has not established that there is a parent relationship between her and the Father for the purposes of the 1948 Act.
FACTS
The applicant’s biological mother (Mother) was born in China and is a citizen of China.
The Father was also born in China. He moved to Australia on a student visa and in 1993 married an Australian permanent resident who later became an Australian citizen. The Father had two children with his first wife. In 1996 the Father became an Australian citizen. In 2003 the Father separated from his first wife and in 2004 they divorced. The Father left the marital home to live with his mother. One of his daughters, Rose, came to live with him while the other remained with her mother.
On 6 December 2004 the Mother and Father married in Foshan, China. They had met some years before in China. After their marriage, the Father returned to Australia.
On 5 November 2005 the Mother came to Australia on a tourist visa to visit the Father. She stayed with him and his mother and father for about five to six weeks. They had what the Mother described as a “normal relationship as husband and wife, including sexual relations”.
After the Mother’s return to China, the Father and the Mother remained in regular contact. They spoke to each other once or twice a week by telephone and the “QQ” app. The Father regularly sent money to the Mother through friends and acquaintances with the amounts sent varying from $800 to $2,000. The Father also contributed RMB 30,000 (approximately AUD $6,000) towards the deposit on an apartment purchased in the Mother’s name in China.
In February 2006 the Mother discovered that she was pregnant. She immediately informed the Father. The Mother and the Father were both very happy although, at the time, the Father was going through a difficult period because his father, who eventually passed away on 26 February 2006, was very ill.
On 27 March 2006 the Mother lodged an application for a partner visa sponsored by the Father.
In mid-2006 the Father, Rose and the Father’s mother moved to a rental home in Dundas Valley (Dundas Valley Home).
The applicant was born on 11 July 2006 in Foshan, China. While the Mother was unable to call the Father to inform him about the birth on that day as she was recovering from the birth, she did so the following day.
The Father was unable to travel to China immediately to see the applicant because of his obligations in Australia where he was looking after his elderly mother, who was then 70 years old, and Rose, who was then 13 years old. According to the Father, at the time, he was the only person able to look after them. On the other hand, the Mother, who was a nurse, was able to look after herself and the applicant, particularly as she had a number of family members able to assist her. Notwithstanding that, the Father’s uncontroverted evidence was that from the time the applicant was born he considered her to be his child and treated her in that way.
Following the applicant’s birth, the Father and the Mother remained in frequent contact by telephone and QQ. The Father was able to make video calls to see the applicant via QQ using his computer webcam. He also arranged for friends to take gifts to China for the applicant, such as formula, baby food, nappies and vitamins. The Mother sent the Father and his mother photos of the applicant either by post or electronically through QQ.
On 6 September 2006 an application was made for the applicant to be registered as an Australian citizenship by descent. The Father was included in Part C of the applicable form titled “Details of the person’s natural father”. A copy of the applicant’s birth certificate was annexed to the form. That document which was issued by the Ministry of Health of the People’s Republic of China and dated 25 July 2006, although substantially in Chinese, recorded the Father’s name in English as being the applicant’s father.
On 29 September 2006 the applicant acquired registration of Australian citizenship by descent pursuant to s 10B of the 1948 Act. Following her registration, the Father helped to organise documents for the applicant’s passport.
In January 2007 the Mother’s application for a partner visa was refused.
From birth the applicant had problems with her lungs and eventually developed asthma. The Mother and Father decided that the applicant should move to Australia where the Mother and Father believed the environment would be cleaner and she would receive better medical care.
In mid-2007 the Father travelled to China and spent a few weeks with the applicant to ascertain if she would be able to live with him as her father. After the Father had been in China with the applicant for approximately one month, it was decided that she could return to Australia with him. Accordingly, on 27 June 2007 the Father returned to Australia with the applicant where the applicant lived with the Father and his mother at the Dundas Valley Home.
According to the Father, from the time that he brought the applicant to Australia, his relationship with her was a “normal father-daughter relationship”.
The Mother travelled to Australia to see the applicant and the Father. However, the relationship between the Mother and the Father became strained and, while the Mother continued to visit Australia and stay at the Dundas Valley home, she slept apart from the Father.
On 19 June 2012 the Mother and the Father were divorced. The joint application for divorce verified by affidavits affirmed by the Father and the Mother on 20 February 2012 and filed in the Federal Magistrates Court of Australia (FMC), as it then was, on 24 February 2012 (Divorce Application) relevantly included the following in Part F titled “Children”:
(1)at the time the applicant was a child under 18 who was treated as a member of their family when they separated;
(2)the Father is the applicant’s father and the Mother is the applicant’s mother;
(3)at the time the applicant lived with the Father at the Dundas Valley Home; and
(4)under the heading “Current details for the child”:
Annexed to the Divorce Application was a single page which, in response to question 29 in Part F, set out information about planned changes to the current arrangements for the applicant and which provided:
The Father explained that, notwithstanding the plan included in the Divorce Application for her future care, the applicant remained in Australia as she did not wish to leave her family, her school and her friends in Australia.
On 19 February 2014 the Mother came to Australia. She initially lived with the Father, his mother and the applicant at the Dundas Valley Home. In June 2014 she and the applicant moved to a different residence in Carlingford.
Despite her move, the Father said that he continued to be the applicant’s father and visit the applicant at her home in Carlingford during the week and every Saturday, work permitting. According to the Mother, the Father visits four or five times per week to see the applicant and has a “normal and very good father-daughter relationship” with the applicant.
Correspondence in relation to, and amendment of, the applicant’s citizenship records
Commencing in September 2017 the then Department of Immigration and Border Protection (Department) sent correspondence to the Mother in relation to the applicant’s registration of Australian citizenship by descent pursuant to s 10B of the 1948 Act. It is not necessary to set out all of the correspondence in full. However, in summary:
(1)on 14 September 2017 the Department sent the Mother a notice of intent to annotate departmental records to show that the applicant is not an Australian citizen by descent. In that letter, among other things, the Department:
(a)informed the Mother that it had come to its attention that the applicant did not meet the requirements to be registered as an Australian citizen by descent under s 10B of the 1948 Act. This was said to be because information obtained by the Department indicated that the Father is not the applicant’s biological father and because false information was provided to the Department to obtain citizenship by descent for the applicant;
(b)invited the Mother to comment on the information or to provide documentary evidence that the applicant had an Australian citizen parent at the time of her birth;
(c)informed the Mother that if she and the Father wished to undertake DNA testing they should contact the Department; and
(d)requested a response within 35 days of the date of the letter;
(2)on 18 October 2017 the applicant’s previous agent wrote to the Department indicating that she wished to undertake DNA testing and sought further instructions on how to do so;
(3)on 1 November 2017 the Department sent a letter to the Mother indicating that the “claimed Australian citizen parent” has the option of undertaking DNA testing to confirm their relationship and set out the required procedure for such testing. That letter also included the following:
If you choose not to:
Ÿundertake DNA testing, advise me of this in writing; or
Ÿprovide any other information that can demonstrate the claimed parent-child relationship at the time of their birth; or
Ÿrespond to this letter,
by 5 December 2017, I will make a decision on the application based on the information I have before me at that time.
(4)on 4 December 2017 the applicant’s agent, Mr Shi, sought an extension of time to provide DNA evidence which was declined by the Department on 5 December 2017. However, in its letter of that date, the Department granted an extension until 8 December 2017 to “provide further information in support of the claim that [the Father] was [the applicant’s] parent at the time of her birth”;
(5)on 8 December 2017 Mr Shi wrote to the Department seeking further time to undertake DNA testing and in doing so, set out a number of factors in relation to the applicant including:
(a)why the Mother and Father required more time to undertake DNA testing, referring to the applicant as “psychologically fragile”;
(b)details of the applicant’s “living environment” since birth and its impact on her and the attitude of the applicant’s parents. In relation to the latter, the letter included:
Even if it turns out that [the applicant] is not the natural daughter of her father. The father will not let her leave Australia. People adopt other people’s children to foster. [The applicant] has been fostered by her father as natural daughter for 11 years. What amount of emotion has been involved in this! [The Father] will never let her go. There are visa categories such as adoption or orphaned relative available for them and there are public interest criteria under the Minister’s intervention system. So the father is not worried about that he would lose her in the future.
(6)Mr Shi’s letter dated 8 December 2017 also enclosed a letter dated 4 December 2017 from the Father to the Department which included, among other things:
I would like to hereby advise that [the applicant] is forever my daughter no matter whether she is my biological daughter or not by DNA test. I have brought her up ever since she was born and it is already 11 years since we have been living in this father/daughter relationship. Nothing can change it.
(7)on 12 December 2017 the Department granted an extension until 31 January 2018 for the Mother and Father to undertake supervised DNA collection with the applicant and informed Mr Shi that, should the Mother and Father not proceed with the DNA testing, they have until 31 January 2018 to provide further information in support of their claim that the Father was the applicant’s parent at the time of her birth;
(8)on 30 January 2018 in response, it seems, to a further request for an extension of time, the Department informed Mr Shi that no further extension would be given and that any further information in support of the claim that the Father was the applicant’s parent at the time of her birth was to be provided by 31 January 2018;
(9)on 13 February 2018 the Department informed the Mother that, based on the information before it, a determination had been made that the applicant did not meet the requirements to be approved as an Australian citizen by descent under s 16 of the 2007 Act, that the applicant was incorrectly registered as an Australian citizen by descent and that accordingly, the applicant’s records had been annotated to show that she is not an Australian citizen; and
(10)by letter dated 29 March 2018 the Department clarified that the reference in the letter dated 13 February 2018 to the 2007 Act was an error and that the applicant had failed to meet the requirements to be registered as an Australian citizen by descent under s 10B of the 1948 Act.
LEGISLATIVE FRAMEWORK
The meaning of “Australian citizen” is set out in s 4 of the 2007 Act and provides:
(1)For the purposes of this Act, Australian citizen means a person who:
(a) is an Australian citizen under Division 1 or 2 of Part 2; or
(b) satisfies both of the following:
(i)the person was an Australian citizen under the Australian Citizenship Act 1948 immediately before the commencement day;
(ii)the person has not ceased to be an Australian citizen under this Act.
Citizenship under the old Act
(2)If, under this Act, it is necessary to work out if a person was an Australian citizen at a time before the commencement day, work that out under the Australian Citizenship Act 1948 as in force at that time.
Because the applicant was born before the commencement day of the 2007 Act, it is necessary to have regard to the 1948 Act. Relevantly, s 10B of the 1948 Act, entitled “Citizenship by descent”, relevantly provided:
(1)A person born outside Australia (in this subsection referred to as the relevant person) is an Australian citizen if:
(a)the name of the relevant person is registered for the purposes of this section at an Australian consulate, and the registration is the result of an application made within 25 years of the person’s birth to register the person’s name for those purposes; and
(b)a person, being a parent of the relevant person at the time of the birth of the relevant person:
(i)was at that time an Australian citizen who had acquired Australian citizenship otherwise than by descent; or
…
Section 52A of the 1948 Act set out those decisions in relation to which application for review could be made to the Administrative Appeals Tribunal. Decisions under s 10B(1) were not included.
By Item 42 of Pt 2 of Sch 1 to the Australian Citizenship (Transitionals and Consequentials) Act 2007 (Transition Act) the 1948 Act was repealed as from 1 July 2007. Schedule 3 to the Transition Act is entitled “Application and transitional provisions”. Item 10 of Pt 1 of Sch 3 provides that, despite the repeal of the 1948 Act, s 52A of the 1948 Act continues to apply in relation to a decision made under that Act, as if that repeal had not been made.
Accordingly, the applicant has invoked, and the matter is within, the original jurisdiction of this Court by reason of s 39B(1A)(c) of the Judiciary Act 1903 (Cth).
LEGAL PRINCIPLES
As identified at [2] above, the applicant’s entitlement to the relief claimed turns on whether, at the time of her birth, the Father was a “parent” of the applicant. The meaning of the word “parent” for the purposes of s 16(2) of the 2007 Act was considered in H v Minister for Immigration and Citizenship (2010) 188 FCR 393 (H v Minister). There the single issue before a Full Court of this Court (Moore, Kenny and Tracey JJ) was whether the term “a parent of the person” in s 16(2) of the 2007 Act means only a biological parent. Section 16(2) of the 2007 Act relevantly provides that:
(2)A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:
(a)a parent of the person was an Australian citizen at the time of the birth; and
…
At [127] the Full Court held that there was nothing in the legislative object, text or structure of the 2007 Act that required the Court to conclude that, in the context of s 16(2), the word “parent” could only mean biological parent but rather those considerations indicated that the better view was that the word “parent” in s 16(2) had the meaning it bears in ordinary contemporary English usage. At [128]-[130] the Full Court relevantly continued:
128The word “parent” is an everyday word in the English language, expressive both of status and relationship to another. Today, as the [2007 Act] itself recognizes, not all parents become parents in the same way: see, eg, s 8 of the [2007 Act]; H v J (2006) 205 FLR 464 at 466, citing Re Patrick (2002) 168 FLR 6 at [323], [325] (Guest J). This is not to say that parents do not share common characteristics; everyday use of the word indicates that they do.
129Being a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological. Once, in the case of an illegitimate child, biological connection was not enough; today, biological connection in specific instances may not be enough: Citizenship Act, s 8 referring to ss 60H and 60HB of the Family Law Act, in turn picking up prescribed Sate and Territory laws such as the Status of Children Act 1974 (Vic). Perhaps in the typical case, almost all the relevant considerations, whether biological, legal, or social, will point to the same persons as being the “parents” of a person. Typically, parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person as one’s own and treating him or her as one’s own.
130The ordinary meaning of the word “parent” is, however, clearly a question of fact, as is the question whether a particular person qualifies as a parent within that ordinary meaning. Applying s 16(2)(a), the Tribunal is bound to determine whether or not, at the time of the applicant’s birth, he or she had a citizen parent. In deciding whether a person can be properly described as the applicant’s parent, the Tribunal is obliged to consider the evidence before it, including evidence as to the supposed parent’s conduct before and at the time of birth and evidence as to the conduct of any other person who may be supposed to have had some relevant knowledge. Evidence as to conduct after the birth may be relevant as confirming that parentage at the time of birth. For example, evidence that a person acknowledged the applicant as his own before and at the time of birth and, thereafter, treated the applicant as his own, may justify a finding that that person was a parent of the applicant within the ordinary meaning of the word “parent” at the time of the birth. …
The applicant and the Minister agreed that the principles set out in H v Minister are equally applicable to s 10B of the 1948 Act.
MINISTER’S SUBMISSIONS
The Minister submitted that the applicant now seeks to put additional evidence before the Court in support of the fact that the Father was, at the time of the applicant’s birth, her “parent”. He contended that the Department could not be criticised for making a decision on the basis of a dearth of evidence supporting the Father being a parent of the applicant. However, the Minister accepted that the question of whether the Father was at the time of her birth the applicant’s parent is a jurisdictional fact that the Court can determine on the evidence: see Lee v Minister for Immigration and Citizenship (2011) 199 FCR 336; Kim v Minister for Immigration and Border Protection (2016) 248 FCR 263.
In relation to the evidence relied on by the applicant, the Minister submitted that it did not indicate that the Father was a parent of the applicant at the time of her birth. The Minister further submitted that the Father’s evidence indicated that whilst he considered the applicant to be his child when she was born, he does not address the question of whether he may not be the biological father of the applicant. The Minister further submitted that, while this is not a determinative question relating to parenthood under the 1948 Act, it is a relevant factor that the Father has not addressed. The Minister contended that on the evidence the Court cannot be satisfied that the Father is the biological father of the applicant, although as the Full Court held in H v Minister at [129], a “biological connection in specific instances may not be enough”.
The Minister, after highlighting aspects of the Father’s evidence, submitted that, insofar as the Father says that he and the applicant had a normal father-daughter relationship, he provides no detail about what this means. The Minister further submitted that the applicant has not established “on the evidence” the Father’s “intense commitment”, a matter required to be demonstrated to prove a parent relationship for the purposes of the 1948 Act.
CONSIDERATION
It was common ground between the parties that the Father was an Australian citizen at the time of the applicant’s birth and the only question for the Court’s determination is whether, at the time of the applicant’s birth, the Father was a “parent” of the applicant.
Before turning to consider whether that is so, it is worth noting two matters relevant to the Court’s determination which arise on the Minister’s submissions. First, the exchange of correspondence between the Mother and/or the applicant’s representative and the Department, the matters taken into account by the Department and the decision reached by it have no bearing on the determination of the issue. Secondly, the applicant does not rely on evidence that the Father is her biological father, such that the matter cannot be resolved on that basis. Rather the applicant contends, and I accept, that it is not necessary for her to establish a biological connection with the Father in order for her to succeed in establishing that he is a parent for the purposes of s 10B of the 1948 Act.
Contrary to the Minister’s submissions, in my opinion, the applicant has established that the Father is a parent for the purposes of s 10B of the 1948 Act. My reasons for reaching this conclusion follow.
First, as the Full Court said in H v Minister at [130] the question of whether a particular person qualifies as a parent within the ordinary meaning of the word “parent” is a question of fact. In deciding whether a person can be properly described as the applicant’s parent, the Court must consider the evidence before it, including evidence as to the claimed parent’s conduct before and at the time of birth and evidence about the conduct of any other person who may be supposed to have had some relevant knowledge. The Full Court also said that evidence as to conduct after the birth may be relevant to confirm parentage at the time of birth.
The evidence before me established that:
(1)during the period leading up to and at the time of the applicant’s birth:
(a)after their marriage, in November 2005 the Mother and the Father spent time together in Australia, living as husband and wife;
(b)the Mother discovered she was pregnant in February 2006 and informed the Father who was pleased by the news;
(c)the applicant was born on 11 July 2006 and the Mother informed the Father of the birth the following day on 12 July 2006;
(d)from that time the Father considered the applicant to be his child and he treated her as his child although he was unable to travel to China immediately to see the applicant because of his family responsibilities in Australia;
(2)after the applicant’s birth:
(a)her birth certificate dated 25 July 2006 issued by the Ministry of Health of the People’s Republic of China named the Father as the father;
(b)the Father was in regular contact with the Mother by telephone and QQ and the Mother sent photos of the applicant to the Father via QQ;
(c)the Father arranged for nappies, baby formula and other items such as vitamins to be taken to the applicant in China from Australia;
(d)in mid-2007, after the Father spent a month with the applicant in China, the applicant returned to Australia with him as the Mother and the Father believed that this would be better for her health. For the next seven years until 2014, the applicant lived with the Father in the Dundas Valley Home. From that time, the Father’s relationship with the applicant was a “normal father-daughter relationship”;
(e)the Divorce Application, which was completed in 2012, recorded that the applicant was a child of the marriage and provided details of the applicant’s care up to that time – information which is consistent with the evidence given by the Mother and Father in this proceeding; and
(f)after the Mother came to Australia in 2014 and the applicant moved out to live with her, the Father continued to visit the applicant on a regular basis.
Secondly, and critically, the evidence given on behalf of the applicant was unchallenged – the Minister led no evidence to respond to or contradict the applicant and did not cross-examine the Mother or the Father.
Thirdly, the Full Court in H v Minister at [129] described parenting not just as a matter of biology but of “intense commitment”. The Minister submitted that the evidence did not establish the Father’s intense commitment as a parent of the applicant. I do not accept that submission. Every case must turn on its own facts. While the evidence was general in nature and did not descend to particularisation of how the Father interacted with the applicant on a regular basis, it was sufficient to establish the commitment required to prove parentage. In particular, not only did the Father express his own commitment to the applicant as a parent but the fact that the applicant lived with the Father for approximately seven years is strong evidence of a commitment of the nature required.
The evidence establishes that the Father acknowledged the applicant as his own at the time of birth and, thereafter, treated her as his own. The evidence given by the Father and the Mother of how the Father interacted with and treated the applicant after her birth justifies a finding that the Father was a parent of the applicant within the ordinary meaning of the word “parent” at the time of the birth.
NON-PUBLICATION ORDER
At the hearing, on the application of the applicant, I made an order pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth) (FCA Act) that, subject to further order and pending determination of an application for a suppression order by the applicant, the applicant’s identity not be published and her name appearing on the application and on later documents be substituted by a pseudonym.
The applicant has now made an application for an order pursuant to s 37AF(1) of the FCA Act prohibiting the publication of information tending to reveal her identity and the identities of her litigation guardian and the former husband of her litigation guardian. The applicant seeks that order on the ground set out in s 37AG(1)(a) of the FCA Act. The Minister did not oppose the making of the interim order pursuant to s 37AI of the FCA Act and, as I understand his position from comments made by counsel appearing for him at the hearing, he does not oppose the order now sought.
Sections 37AE, 37AF(1)(a) and 37AG(1)(a) of the FCA Act relevantly provide:
37AE Safeguarding public interest in open justice
In deciding whether to make a suppression order or non‑publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
37AF Power to make orders
(1)The Court may, by making a suppression order or non‑publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:
(a)information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or
…
(2)The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).
37AG Grounds for making an order
(1)The Court may make a suppression order or non‑publication order on one or more of the following grounds:
(a)the order is necessary to prevent prejudice to the proper administration of justice;
…
The applicant submitted that the non-publication order is necessary because the judgment is likely to contain an account of matters that occurred in a proceeding under the Family Law Act 1975 (Cth) (Family Law Act) and that, pursuant to s 121 of the Family Law Act, it is an offence to publish any account of any proceeding, or any part thereof, under the Family Law Act that identifies a party to the proceeding or a person who is related to, or associated with, a party to the proceeding or a witness. The applicant submitted that the Court is entitled to have regard to this factor when considering whether to make a non-publication order under s 37AF(1) of the FCA Act.
In CFB18 v Reader Lawyers & Mediators [2018] FCA 611 (CFB18) Colvin J made an order that the applicant be identified by a pseudonym. In doing so his Honour referred to the fact that the proceeding was consequent upon the failure to pay costs orders in a Family Court proceeding, that it was necessary to give an account of certain matters that occurred in the course of the Family Court proceeding in his reasons and the effect of s 121 of the Family Law Act. At [2] his Honour observed that, in deciding whether to make a non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice and that the threshold for making such an order is high. However, his Honour made the order because the persons who might be affected by the account of matters to be given in his Honour’s reasons were not party to the proceeding and had not been heard on the question of publication of the material in the reasons, in addition to ensuring that the reasons could be published in accordance with the principles of open justice.
In Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649 at [10] Griffiths J recognised that the circumstances in which a suppression or non-publication order is requested can vary enormously. At [11] his Honour said:
11It is well established that the threshold which a suppression order applicant must satisfy is high and that mere embarrassment, inconvenience, annoyance or unreasonable or groundless fears will not suffice (see, for example, Cascade Coal at [30] per Foster J).
In my opinion, the applicant has satisfied the required threshold to make the order she seeks.
A key aspect of the evidence relied on by the applicant is the Divorce Application filed in the FMC. Those who may be affected by an account of the matters in that proceeding in these reasons namely, the applicant and the Mother and Father, are either a party to this proceeding or gave evidence in it. The applicant seeks the order and I would infer, given that she is a minor and that evidence was given in support of the substantive application by the Mother and Father, they support the application too.
Here, as in CFB18, to enable these reasons to be published in accordance with the principles of open justice and so as not to contravene s 121 of the Family Law Act, it is appropriate to make the order sought by the applicant.
CONCLUSION
For those reasons I will make the declaration and the orders pursuant to s 37AF(1) of the FCA Act as sought by the applicant.
In light of the conclusion I have reached on the central issue, the Minister should pay the applicant’s costs.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic. Associate:
Dated: 1 November 2018
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