Gengxin & Zedong
[2022] FedCFamC2F 1083
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gengxin & Zedong [2022] FedCFamC2F 1083
File number(s): MLC 5129 of 2019 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 18 August 2022 Catchwords: FAMILY LAW – application for final parenting orders –parentage declaration under section 69VA of the Family Law Act 1975 (Cth) made by consent – dispute as to terms of parentage declaration – where the mother seeks orders permitting her to apply for Australian citizenship for the child and requiring the father to take all necessary steps to facilitate that application – consideration of best interests of the child – where the parties consent to the mother having sole parental responsibility for the child – final parenting orders made. Legislation: Australian Citizenship Act 2007 (Cth)
Family Law Act 1975 (Cth), ss 60CC, 61B, 69A, 69V, 69VA
Division: Division 2 Family Law Number of paragraphs: 37 Date of last submission/s: 28 July 2022 Date of hearing: 28 July 2022 Place: Melbourne Counsel for the Applicant: Mr A Scriva Solicitor for the Applicant: Tao Jiang Lawyers Counsel for the Respondent: Mr M Cenacchi Solicitor for the Respondent: WIIN Lawyers ORDERS
MLC 5129 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GENGXIN
Applicant
AND: MR ZEDONG
Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
18 August 2022
THE COURT DECLARES BY CONSENT THAT:
1.Pursuant to section 69VA of the Family Law Act 1975 (Cth), the respondent father, MR ZEDONG born in 1985, is the biological father of the child.
THE COURT FURTHER ORDERS THAT:
2.All previous parenting orders be discharged.
BY CONSENT:
3.The applicant mother have sole parental responsibility for the child, X born in 2018 (‘the child’).
BY ORDER OF THE COURT:
4.The child live with the mother.
5.The mother be at liberty to apply for Australian citizenship for the child.
6.The respondent father do all things and sign all documents necessary to assist the mother in her application for Australian citizenship for the child.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
B.Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
The parties have filed a joint statement of agreed facts.[1] This summary is derived from that joint statement:
(a)the applicant mother is a Country B citizen and the respondent father is an Australian citizen;
(b)the parties have one child, X born in 2018, who was born in the United States of America; and
(c)the respondent does and has acknowledged that he is the biological father of the child and that he was an Australian citizen at the time of the child’s birth.
[1] Joint statement of agreed facts and facts in dispute filed on 26 July 2022.
The parties agree to orders being made by consent which provides for the mother to have sole parental responsibility and for the court to make a declaration pursuant to section 69VA of the Family Law Act 1975 (Cth) (‘the Act’) as to the child’s parentage.[2]
[2] Joint summary of final orders by consent and orders not consented to filed on 26 July 2022.
In addition to those consent orders, the applicant mother also seeks the following further orders:
(a)that the declaration under section 69VA of the Act not only state that the father is the child’s biological father, but also that he was an Australian citizen at the time of the child’s birth;
(b)that the mother have liberty to apply for an Australian passport for the child; and
(c)that the father sign all necessary documents required to facilitate the child’s application for an Australian passport.
Both parties concede that the court has jurisdiction to make parenting orders in relation to the child. It is common ground that the father has made the decision not to have any contact with the child.
EVIDENCE
Both parties filed a case outline in this matter.
The applicant mother relies upon:[3]
(a)her amended application filed on 14 July 2022; and
(b)her affidavits filed on 13 May 2019 and 22 March 2022.
[3] Applicant’s Outline of Case filed on 25 July 2022.
The respondent father relies upon his affidavit filed on 15 July 2019 and his affidavit of 20 April 2022.[4]
[4] Respondent’s Outline of Case filed on 26 July 2022.
ISSUES FOR CONSIDERATION
The issues that arise for consideration are:
(a)the nature of the declaration that the court should make under section 69VA; and
(b)whether it is in the child’s best interests to make orders permitting the mother to seek Australian citizenship for the child and requiring the father to take all necessary steps to facilitate that application.
CONSIDERATION
Section 69VA declaration
As stated, the mother seeks a declaration under section 69VA of the Act in the following terms:
Pursuant to section 69VA of the Act, the Court declares that the Respondent Father, [Mr Zedong], born [in] 1958, being an Australian citizen at all relevant time and is the biological father of the child, [X], born [in] 2018.
The father does not take issue with the making of a declaration that he is the biological father of the child. However, the father does not consent to the further provision that the father was an Australian citizen at the time of the birth of the child.
It was submitted for the applicant mother that the parties agree that the father was an Australian citizen at the time of the child’s birth. Indeed, so much is clear from the joint statement of facts filed by them.
It was further submitted for the mother that in order to obtain Australian citizenship under the Australian Citizenship Act 2007 (Cth), the child needs to establish that a parent was an Australian citizen at the time of the child’s birth. It is submitted that the court has the power to make a declaration in the terms sought by the mother, both as to the child’s parentage and as to the father’s citizenship under section 69VA of the Act.
With respect, I do not agree with this submission. But in any event, such a declaration is not necessary if I were to make an order in the terms sought by the mother requiring the father to do all things and sign all documents necessary to assist the mother in her application for Australian citizenship for the child.
Section 69VA appears in Subdivision E of Part VII Division 12 of the Family Law Act 1975 (Cth). Relevantly, Division 12 deals with Proceedings and Jurisdiction. Section 69A relevantly provides:
69A What this Division does
This division deals with:
(a) the institution of proceedings and procedure (Subdivision B); and
(b) jurisdiction of courts (Subdivision C); and
(c) presumption of parentage; (Subdivision D) and
(d) parentage evidence (Subdivision E); and
(e)the places and people to which this Part extends and applies (Subdivision F).
It is in this context that Subdivision E deals with parentage evidence.
Section 69V provides that where parentage is 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.
Section 69VA then goes on to say:
69VA Declarations of parentage
As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of 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.
Section 69VA is not a general stand-alone provision. It is clear that section 69VA must be read in the context of section 69V, namely that where in proceedings under the Family Law Act1975 (Cth) parentage is in issue, the court may obtain evidence about that matter. Where it has done so, it is open to the court to make a declaration about parentage. Where such a declaration is made, it then is conclusive on that issue, for the purposes of all Commonwealth laws.
In this instance, the parties have conceded that the father is the biological father of the child. The parties have also agreed that it is appropriate for a declaration as to parentage to be made.
I am satisfied in circumstances where other parenting orders have been made, namely orders regarding parental responsibility and orders for the child’s living arrangements, that is appropriate for a parentage declaration to be made.
I do not accept, however, that I have the power to make a declaration under section 69VA of the Act regarding the father’s citizenship status at the time of the child’s birth.
I accept that the parties concede that the father was an Australian citizen at the time of the child’s birth. However, this is a legal issue, not a factual issue, to be determined by reference to matters not before this court, and in respect of which no evidence was led before me. The parties’ agreed position on this point may or may not be legally accurate.
Moreover, as stated, the issue in this case is that the father has not been prepared to assist the mother in her application for citizenship for the child. Relevantly, he has refused to provide a copy of his passport in a form required by the relevant government department. That issue can be dealt with by requiring the father to do all things and sign all documents necessary to assist the mother in her request for citizenship for the child.
For these reasons, I do not propose making the declaration in the terms sought by the mother, but will make a declaration in the terms agreed to by the father.
Application for Australian citizenship for the child
The two remaining issues in dispute then relate to the orders sought by the mother that:
(a)she be at liberty to apply for Australian citizenship for the child; and
(b)the father be required to do all things and sign all documents necessary to assist with that application.
It is submitted for the father that there is no evidence that such orders are in the child’s best interests. In particular, the father submits that the mother has not put any evidence before the court as to the impact on the child and his Country B citizenship, if he were to be granted Australian citizenship.
In considering whether the orders sought by the mother are in the child’s best interests, the court must have regard to the fact that the father has agreed to orders that the mother have sole parental responsibility for the child and that the child live with the mother and spend no time with him.
Section 61B of the Act relevantly states:
In this part, parental responsibility in relation to a child, means all the duties, powers, responsibilities and authority which by law, parents have in relation to children.
The decisions that the mother can make in exercising that parental responsibility include which country the child might reside in, and ultimately, what citizenship the child might apply for. In circumstances where the father has made it explicit that he wishes not to be involved in the child’s life or any decisions relating to the child, it is difficult to understand why he would argue against the mother’s application. There is no evidence before the court about any detrimental impact on the child of him obtaining Australian citizenship.
The mother has given evidence, which is unchallenged in circumstances where neither party sought to cross-examine the other, that once the father acknowledged that he was the child’s biological father, she made a decision to apply for Australian citizenship for the child. She says that she made that decision on the basis that if they move to Australia, the child will have the opportunity to meet his father and hopefully develop a meaningful relationship with him. She also says that she believes that Australia will offer a better education and better environment for the child to grow up in.[5] She further states that she hopes to bring the child to Australia to live and study as soon as it is possible to do so.[6]
[5] Mother’s affidavit affirmed and filed on 22 March 2022 at paragraphs [5] and [6].
[6] Mother’s affidavit affirmed and filed on 22 March 2022 at paragraph [7].
In addition, the mother also gives evidence about the steps that she has taken to obtain the necessary documents from the father which would allow her to apply for Australian citizenship for her son. Her evidence is that the father has refused to assist in this regard to date.
The father has not led any evidence to explain his opposition to the mother applying for Australian citizenship for her child. Nor has he provided any evidence which suggests that it would not be in the child’s best interests to seek Australian citizenship.
In making parenting orders, the court must have regard to the considerations set out in section 60CC of the Act. In this case, whilst the circumstances are somewhat unusual in that the father is resident in Australia and the mother and child are resident in Country B, the same principles must guide the court. The two primary considerations are the benefit to the child of having a meaningful relationship with both parents balanced against the need to protect the child from a risk of harm. The mother has led evidence that citizenship will facilitate the child’s relationship with his father in the future. No risk factors have been identified by either party.
Turning to the additional considerations, the mother is the child’s primary carer and appears to have the day to day responsibility for the child. The mother is seeking the ability to apply for Australian citizenship for her child. Whether such citizenship is granted is a matter for others to determine, but if it is, it would provide the child with the ability to live in closer proximity to his biological father and may provide an opportunity for that relationship to develop in the future. Whilst citizenship is not a pre-requisite for that relationship and indeed, if the father’s position remains as it is at the moment, there is no guarantee that that relationship will develop even if the child were living in Australia, it certainly would provide another possible bond between the father and the child.
Having regard to the totality of the circumstances in this case, I am satisfied that it is in the child’s best interests to make orders that permit the mother applying for Australian citizenship for her child and further orders that the father assist in that if required.
The father has agreed the mother should have sole parental responsibility. In exercising that parental responsibility, she seeks to apply for citizenship for her child. It is not for this court, and certainly in the absence of any evidence to suggest that it is necessary to protect the child from harm, to go behind that decision.
CONCLUSION
In all of the circumstances, it is in the child’s best interests for the orders as set out at the commencement of these reasons to be made.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 18 August 2022
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