Ilyushin & Kublanova
[2022] FedCFamC1F 286
•4 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ilyushin & Kublanova [2022] FedCFamC1F 286
File number(s): SYC 2389 of 2021 Judgment of: CHRISTIE J Date of judgment: 4 May 2022 Catchwords: FAMILY LAW – INTERIM ORDERS – Where the parties consented to a declaration of parentage – Where the child is not in Australia – Where the mother has not appealed – Where the mother now alleges that the father is not the biological father of the child –– Where the parties consented to stay the operation of the declaration – Validity of stay absent appeal Legislation: Family Law Act 1975 (Cth), ss 45, 69E(1)(c), 69VA Federal Circuit and Family Court of Australia Act 2021 (Cth), s 38
Federal Circuit and Family Court of Australia (Family Law) Rules 2021, r 3.02
Division: Division 1 First Instance Number of paragraphs: 37 Date of hearing: 13 April 2022 Place: Sydney Solicitor for the Applicant: Ms Swan, Swan Lawyers Solicitor for the Respondent: Ms Morgan-Brett, Shore Lawyers ORDERS
SYC 2389 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KUBLANOVA
Applicant
AND: MR ILYUSHIN
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
4 MAY 2022
THE COURT ORDERS THAT:
1.The application filed 7 October 2021 by Ms Kublanova be dismissed.
2.Order 4 of the orders of 14 October 2021 is discharged.
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 the pseudonym Ilyushin & Kublanova has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
INTRODUCTION
These proceedings relate to an interim application filed by Ms Kublanova (“the mother”) on 7 October 2021.
Mr Ilyushin (“the father”) filed a response to that application on 27 October 2021.
The proceedings concern a child X (born in 2019) (“the child”).
BACKGROUND
The father arrived in Australia on or around 8 July 2015 on a temporary working visa. Around March 2016, he moved to Sydney from Town C, Queensland.
On or around 1 February 2017, the mother and father (“the parents”) commenced co-habitation. The father says they registered their relationship on 24 November 2018.
On 4 December 2017, the mother applied for permanent residency in Australia, which was granted on 2 October 2018. The parents planned to lodge an application for a Partner visa but such application was never submitted.
In or around the end of 2018, the mother fell pregnant.
The child was born in 2019.
On 28 November 2019, the mother and the child travelled to Country B with the maternal grandmother.
The mother returned to Australia without the child on 23 November 2020.
On 5 April 2021, the father filed an Initiating Application seeking final and interim parenting orders.
On 14 July 2021 the following orders were made by consent:
1. A declaration pursuant to section 69T of the Family Law Act 1975 that the Applicant [MR ILYUSHIN], born […] 1987 is the father of the child [X], born […] 2019.
2. The Respondent Mother do all things necessary and sign all documents to register the Applicant Father on the birth certificate of the child.
3. That should the Respondent not sign the said documents referred to in order 2, then after twelve weeks of the date of these Orders, despite relevant compliance (or readiness to comply) on the part of the non-complying party, then pursuant to Section 106A of the Family Law Act, 1975 a Registrar have the power to do such act or thing or sign such document on behalf of the defaulting party.
On 14 October 2021 Orders 1, 2 and 3 of the orders made 14 July 2021 were stayed by consent when the matter was before Judge B Smith (as his Honour then was).
The issues for the Federal Circuit and Family Court of Australia (Division 1) (“the Court”) are:
(a)Jurisdiction – does the Court have jurisdiction and if so, should it exercise that jurisdiction;
(b)Stay – was the order staying the operation of the orders dealing with paternity validly made;
(c)Parenting – should an order be made in respect of the child and if so what order is in the best interests of the child?
CONSIDERATION
Jurisdiction
The mother’s lawyer raised a question about jurisdiction in oral submissions before me.
These proceedings were commenced by the father filing an Initiating Application on 5 April 2021. In that document the father identified that he was present and ordinarily resident in Australia.
The child was not present in Australia at the time the father filed his Initiating Application. However, the Court had jurisdiction on the basis that both the mother and the father were present in Australia at the time the application was filed: s 69E(1)(c) of the Family Law Act 1975 (Cth) (“The Act”).
No party raised as an issue that r 3.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“The Rules”) requires as a necessary party to applications for parenting orders concerning children “any …person with whom the child lives and who is responsible for the care, welfare and development of the child”. In this case that would be the maternal grandmother with whom the child has lived since the mother left her in Country B in November 2020. I was not told that the maternal grandmother had been served.
If the child is not returned to Australia and remains in the care of the maternal grandmother, she will have to be given formal notice of the proceedings by way of service and it will be a requirement that service on her be proven in the usual manner before any further orders can be contemplated.
The mother’s Amended Response filed 14 October 2021 does not raise any issue of jurisdiction. Indeed, the Response seeks orders from the Court and hence may be regarded as an acceptance on the part of the mother that the Court has jurisdiction and it is appropriate to exercise that jurisdiction.
If the mother had, at the first opportunity raised a jurisdictional issue then the Court would have been required to consider whether, given the length of time the child has been in Country B and the child’s age, it was proper for this Court to make orders in respect of her. However, the mother’s acceptance of jurisdiction coupled with her evidence on oath that she intends for the child to return to Australia satisfy me that it is appropriate to assume jurisdiction on the basis that, according to both parents, the child is only temporarily outside Australia.
The validity of the stay
By her application dated 7 October 2021, the mother seeks to depart from the orders made 14 July 2021. The mother did not file an appeal against those orders.
The mother applied to stay the operation of Orders 1, 2 and 3 of the orders dated 14 July 2021. On 14 October 2021 the father consented to the stay.
The Court has the power to stay proceedings: s 45 of the Act. Neither party (appropriately) sought a stay of proceedings as that power exists to address a case where there are proceedings in two different places.
The Court has the power to issue a stay of its orders where an appeal to the Full Court of the Federal Circuit and Family Court of Australia (Division 1) (“the appellate court”) has been instituted: s 38 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). As, stated above, no party appealed against the orders of 14 July 2021.
Neither party raised with me the question of the validity of the stay. However, given the way in which the competing interim applications were framed, I am required to consider the continued operation of the stay. The power to grant a stay must exist independent of the parties’ consent to such order.
The orders the father sought before me were contained in his Response to an Application in a Case filed 27 October 2021 as follows:
3. That Order 4 made by Judge B Smith on 14 October 2021 be discharged.
4. That without further notice to the Applicant Mother and pursuant to Section 106A of the Family Law Act, 1975 a Registrar of this Court do all such acts or things or sign such documents on behalf of the Mother to register the Respondent Father on the birth certificate of [X], born […] 2019 (“the child”).
To the extent that the father also sought an order (in his case outline) seeking a declaration as to the existence of a de facto relationship, I declined to allow him to proceed with that application as the mother had not been given proper notice.
Absent an appeal the orders were stayed, absent power.
I propose to discharge the stay. That will have the effect of removing from doubt the fact that Orders 1, 2 and 3 of the orders dated 14 July 2021 are valid and enforceable.
Parenting: parentage testing
The mother sought orders contained in her Application in a Proceeding filed 7 October 2021:
1. That Orders 1, 2 and 3 of the Orders made by Judge B Smith on 14 July 2021 be stayed until parentage of the child, [X], born on […] 2019, is ascertained as set out below.
2. That a parentage testing procedure be carried out on the Respondent, [Mr Ilyushin], born […] 1987 and the child, [X], born on […] 2019, under Section 69W(3) of the Family Law Act 1975 (“the Act”).
3. That the parentage testing procedure be carried out:
3.1 in accordance with Division 2 of Part IIA of the Family Law Regulations 1984;
3.2 at a laboratory that is accredited by the National Association of Testing Laboratories, Australia for the parties;
3.3 at a laboratory in [Country B] that is accredited by the National Association of Testing Laboratories, Australia, for the child; and
3.4 in accordance with standards of practice that entitle the laboratory to be so accredited.
4. That within 14 days after the date of this order the Respondent, [Mr Ilyushin], born […] 1987, be and is hereby required under Section 69X(3) of the Act to provide a bodily sample for the purposes of the parentage testing procedure.
5. That the procedure be supplemented by a report under Regulation 21M.
In effect what the mother sought to do was to run the interim application concerning parentage of the child again (absent appeal), in circumstances where a (then) judge of the (then) Federal Circuit Court of Australia had made a declaration as to parentage by consent.
There is in existence a declaration of parentage. The mother seeks parentage testing notwithstanding the existence of this declaration.
The mother has filed material (after the declaration was made) which she contends means that the question of parentage is in issue in the proceedings.
The declaration of parentage however is conclusive evidence of parentage: s 69VA of the Act.
CONCLUSION
A declaration of parentage is not regarded as a “parenting order” and hence it could not be concluded that the order of 14 July 2021 is an interim parenting order capable of variation on the basis of changed circumstances.
In the above circumstances it is not open to me to revisit the existing orders and declarations in the way contemplated by the mother’s application and I decline to do so.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Chrisite. Associate:
Dated: 4 May 2022
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