Robinson & Bale (No. 2)

[2021] FamCA 66

FAMILY COURT OF AUSTRALIA

Robinson & Bale (No. 2) [2021] FamCA 66

File number(s):

CAC 2817 of 2020

Judgment of:

MACMILLAN J

Date of judgment:

19 February 2021

Catchwords:

FAMILY LAW – DECLARATION – where a declaration is made pursuant to s 69VA of the Family Law Act 1975 (Cth) – where the court is satisfied that the mother has been served – where the matter proceeded undefended – where the unchallenged evidence of the father is accepted – where it is declared that the applicant is the father of the child – where it is ordered that the mother and the child return to the Commonwealth of Australia.

Legislation:

Family Law Act 1975 (Cth) s 60CA, 69VA

Cases cited:

Bima and Anor [2014] FamCA 1170

McK and K v O (2001) FLC 93-089

Sheldon & Meriton [2020] FamCA 231

Number of paragraphs:

31

Date of hearing:

16 February 2021  

Place:

Melbourne

Solicitor for the Applicant:

Farrar Gesini Dunn

Respondent:

No Appearance

ORDERS

CAC 2817 of 2020

BETWEEN:

MR ROBINSON

Applicant

AND:

MS BALE

Respondent

ORDER MADE BY:	MACMILLAN J
DATE OF ORDER:	19 FEBRUARY 2021

THE COURT ORDERS THAT:

1.Pursuant to Section 69VA of the Family Law Act 1975 (Cth) it be declared the Applicant, Mr Robinson, is a parent, namely the father of the child, X, born in 2013.

2.The mother forthwith do all acts and things and sign all documents required by the NSW Registry of Births Deaths and Marriages to record the Applicant as the child’s parent on the child’s birth certificate within 14 days of being provided with documentation by the Applicant.

3.The respondent mother do all acts and things to return the child to the Commonwealth of Australia at the earliest possible date subject to any government restrictions and thereafter return the child to the applicant father within a further 48 hours of her return to Australia subject to any government restrictions as to quarantine.

4.In the event that the mother has not complied with paragraph 2 of these orders within 14 days of being provided with documentation by the Applicant, pursuant to s 106A of the Family Law Act 1975 (Cth), a Registrar of the Family Court of Australia sign all documents on behalf of the mother required by the NSW Registry of Births Deaths and Marriages to ensure that the Applicant be included as the child’s parent on the child’s birth certificate.

5.All extant applications be adjourned for mention in the Registrar Directions List at 15.00 pm on 13 May 2021, with liberty to re-list the matter to the Senior Registrars duty list or to further adjourn the matter.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

MACMILLAN J

1. This matter was listed before me in the Judicial Duty List on 16 February 2021. The father filed an Initiating Application on 10 December 2020 seeking parenting orders with respect to the child X (“the child”) born in 2013 who is currently aged 7. The biological mother of the child is the respondent. The applicant instituted the proceedings after it came to his attention that the mother had left the Commonwealth of Australia with the child and travelled to Ireland.

   BACKGROUND

2. The applicant was born in 1977 and is currently aged 43. The respondent mother was born in 1980 and is currently 40 years of age.

3. The applicant deposes that the parties commenced their relationship in 1999 before separating in 2013 whilst the respondent was pregnant with the child. It is the applicants evidence that although there were a few breaks he was in a relationship with the mother for approximately 10 years.

4. The mother commenced a relationship with Mr B in 2013 and the child has lived with the mother and Mr B since birth.  Mr B and the mother have two children together.  

5. The applicant has a child from another relationship.

6. When the child was born the mother listed Mr B on the birth certificate as the father. The applicant’s evidence is that he only realised he was not listed as the child’s father when the child was two years old. The applicant says that the mother repeatedly acknowledged that he was the child’s father notwithstanding he was not named on the birth certificate.  The applicant further deposes that although the mother refused his offers to pay child support he has been putting $125 a week into a bank account for the child.

7. The applicant deposes to a positive relationship with the child and they have spent significant time together since his birth. The applicant’s evidence is that the child has his own bedroom at his house and calls him ‘Mr Robinson.’ However he also deposes that he suspects that the child does not know that he is his biological father. The father deposes to the following conversation occurring in the Affidavit:

   I said to Ms Bale, “I want to make sure X knows I’m his Dad,” or words like that, and she has consistently responded, “Wait until he is 7.”

8. The applicant’s evidence is that he wishes to inform the child that he is his biological father in an appropriate manner.

9. It is the applicant’s evidence that he has spent time with the child approximately once per fortnight and sometimes more frequently since shortly after his birth. This time has steadily increased such that since January 2020 the child had been spending every second weekend with him, sometimes staying one night and sometimes two.

10. In March 2020 the applicant asserts he was told by the mother’s brother that the mother and Mr B were trying to return to Ireland. The applicant states that he contacted the mother and asked her whether she was thinking of leaving the country and her response was no. The applicant asserts that he told the mother that if she was thinking of leaving the country he did not want the child to go with her.

11. The applicant says that in August 2020 the mother told him the child did not want to see him. He says that the child contacted him on approximately six occasions and told him that that he didn’t want to spend time with him but that the child’s behaviour was out of character. Thereafter the applicant engaged solicitors and on 27 August 2020 his solicitors wrote to the mother raising his concerns that she was not allowing the child to spend time with him and with respect to her possible relocation.  

12. Between 27 August and 24 October the child spent time with the applicant on four occasions however he never stayed overnight. He did stay overnight with the applicant on 24 October 2020 which was the last time the applicant saw the child.

13. Although the applicant says he was due to spend time with the child on two occasions in November it is his evidence that when he contacted the mother to confirm arrangements she informed him that the child would not be spending time with him.  

14. On 22 November 2020 the father says he was again contacted by the mother’s brother who told him that he had seen the mother and child the previous day for what he had thought was a family catch-up.  The father says that he now understands that the mother left for Ireland with the child shortly thereafter. It is now clear based upon the information provided pursuant to the orders that the mother and the child left the Commonwealth of Australia on 21 November 2020.  

15. On 22 November 2020, having been told by the mother’s brother that she had travelled to Ireland, the father attempted to contact the mother. The father deposes that he sent the mother the following message on Facebook Messenger; “Can’t believe you have done this, I will spend every dollar I have to get him back, Trust me it will happen, You have made a decision you will regret.” The mother’s response to the applicant’s message was “DO NOT EVER MESSAGE ME AGAIN.” 

    Procedural History and History of Service.

16. The applicant’s Initiating Application filed 10 December 2020 was listed for hearing in the Judicial Duty List on 15 December 2020. On that date Bennett J made the following orders:

    1.The applicant do all acts and things within his power to bring his Initiating Application filed 10 December 2020 to the attention of the respondent mother including, but not necessarily limited to, the following:-

    a)By emailing a copy of the Initiating Application and the father’s affidavit and Notice of Risk to the following email address of the respondent mother - … .

    b)By sending a message to the mother by Facebook messenger telling the mother about the proceedings and that the relevant documents have been emailed to the email address contained in this Order.

    2.The applicant be in a position to prove compliance by him or on his behalf with the provision of paragraph 1 hereof.

    3.Upon compliance by the applicant or on his behalf with the provisions of paragraph 1 hereof, I deem that the documents mentioned have been duly served on the respondent mother.

    4.For the avoidance of doubt, the procedures for substituted service provided in the paragraphs (1) and (2) of this Order are in addition to any request or application that the applicant may be entitled to take pursuant to the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

    5.Upon the child X born in 2013 being returned to Australia he be and is hereby restrained from leaving the Commonwealth of Australia until further order.

    6.Each of the applicant (Mr Robinson, born in 1977) and the mother (Ms Bale born in 1980) and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of the child X, MALE, born in 2013 from the Commonwealth of Australia.

    7.IT IS REQUESTED that the Australian Federal Police give effect to the preceding paragraphs of this Order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until further order.

    8.A copy of this order be emailed immediately to the AFP Operations Coordination Centre by the Melbourne Registry of the Family Court of Australia.

    9.This matter be otherwise adjourned to the Judicial Duty List on 16 February 2021 for determination of the applicant’s Application for the return of the child X born in 2013 to the Commonwealth of Australia and into the applicant’s care (paragraph 6 of the orders sought.

    10.That pursuant to S67N of the Family Law Act 1975, the Secretary of the Department of Home Affairs provide to the Registry Manager of the Family Court at Canberra any information about the child’s location contained in the records of the Department, including outgoing passenger records for the child and the mother for the period 1 July 2020 to date.

    11.That the Registry Manager of the Family Court at Canberra is requested to provide a copy of any such information to the solicitors for the applicant.

    12.That a Registrar of this Court arrange for a copy of these Orders to be forwarded to the Secretary of the Department of Home Affairs.

    13.My reasons for decision this day be transcribed and when settled placed on the Court file.

    AND IT IS NOTED

    A.That the applicant and his practitioners have been informed that they can contact Reunite International to enquire about parenting testing procedures across international borders.

    B.That the applicant proffers an undertaking not to discuss X’s parentage with X until such time there is some expert evidence about how best to do that.

17. The applicant relies upon the Affidavit of Service filed on 11 February 2021. According to that Affidavit of Service on 21 December 2020 the applicant’s solicitor served the Initiating Application filed 10 December 2020, the Affidavit of Mr Robinson filed 10 December 2020, the Marriages, Families and Separation brochure, the Notice of Child Abuse Family Violence or Risk filed 10 December 2020, Orders dated 15 December 2020, blank Notice of Address for Service form and a letter enclosing the documents upon the respondent mother by email at .... The applicant’s solicitor deposes that she requested a delivery receipt to this email and at 3.59pm on 21 December 2020 the solicitor received a confirmation that the documents had been delivered to the email address of the mother. The father’s evidence is that as far as he is aware this is the mother’s only email address.  

18. The applicant relied upon his further Affidavit filed 15 February 2021. He deposed therein that on 22 December 2020 he accessed his Facebook Messenger App and searched for the mother however was unable to find her profile. The father states he then sent the following message to the mother via WhatsApp, a message platform that they had previously used to communicate :

    “Ms Bale

    My lawyers have sent you a letter and court documents via your email ... . I have initiated court proceedings in the Family Court of Australia with respect to X. It’s important that you read the letter and the documents with it. Can you please check your emails and confirm that you’ve received the email? If there is any other way that my lawyers can send the documents to you can you please either let me know or contact them directly.

    Thanks”

19. The father states that when he accessed WhatsApp later that day he saw that there were two blue ticks next to the message to the respondent which he understands to mean that the message had been read.  

20. Although the father has made an Application for Return of a Child under the Hague Convention there are issues with this application due to the fact that he is not named on the child’s birth certificate.

21. Given those issues the at the hearing before me the  applicant sought orders in terms of paragraphs 6, 16 and 17 of his Initiating Application as follows:

    6. That in the event the child is not within the Commonwealth of Australia, the Respondent mother return the child to the Commonwealth of Australia within 1 week of making these orders and thereafter return the child to the Applicant Father within a further 48 hours of her return to Australia.

    …

    16.That pursuant to Section 69VA of the Family Law Act 1975 (Cth) it be declared the Applicant, Mr Robinson, is a parent, namely the father of the child, X, born in 2013.

    17.That the mother do all acts and things and sign all documents required by the NSW Registry of Births Deaths and Marriages to be included as the child’s parent on the child’s birth certificate within 14 days of being provided with documentation by the Applicant.

22. I am satisfied that the mother has been served with the applicants Initiating Application and Affidavit in support of that application in accordance with the orders made by Bennett J on 15 December 2020 and accordingly the mother not having filed any responding material the matter could proceed on an undefended basis.

    LEGAL PRINCIPLES

23. The objects, principles and the matters the Court must consider when making parenting orders are set out in Part VII of the Family Law Act 1975 (Cth) (‘the Act”). When the Court is asked to make parenting orders the paramount consideration is the best interests of child the subject of the proceedings (s 60CA of the Act).

24. Section 69VA of the Act states as follows:

    FAMILY LAW ACT 1975 - SECT 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.

25. In McK and K v O (2001) FLC 93-089 Mullane J stated (at [30]):

    …The insertion of section 69VA implies that the parliament considered there was no separate power in the Act at that time to make a declaration of parentage. Section 69VA is the only express power to make a parentage declaration. There is no express power to make such a declaration except in proceedings in which the parentage of the child is already in issue.

26. This was confirmed by Berman J in Bima and Anor [2014] FamCA 1170 (“Bima”) when His Honour stated (at [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.” Although the applicant has reserved his right to particularise the relief he seeks until the child’s return to the Commonwealth of Australia he seeks both final and interim parenting orders and the child’s return to Australia. The parentage declaration is ancillary to those parenting orders.

27. In Bima Berman J continued as follows:

    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.

28. When determining whether to make a parentage declaration pursuant to s 69VA of the Act the court must have regard to the evidence which includes the evidence of the parties and in many cases will include a parentage test [Sheldon & Meriton [2020] FamCA 231].

    IS THE APPLICANT THE FATHER?

    Paternity Test

29. For obvious reasons in this case it is not possible for the Court to make orders for parentage testing pursuant to the Act. However there is both the applicant’s unchallenged evidence as to parentage and the history of his relationship with the child and the mother’s acknowledgement of paternity and his evidence with respect to the paternity test he obtained in March 2015. The applicant deposes with respect to that paternity test as follows:

    In March 2015 I obtained a paternity test via an organisation called C Labs. I obtained this test by sending hair samples of both my own and X's hair to C Labs. The results of that paternity test indicate that I am X's father. I acknowledge that the samples used for the test were not obtained under strict chain of custody methods. Annexed hereto and marked "C" (pages 10 to 11) is a copy of the paternity test results.

30. The Paternity Testing attached to the applicant's Affidavit filed 15 February 2020 states as follows:

    Statement of Results:  Alleged relationship is not excluded.

    Based on the DNA analysis, the alleged Father, Mr Robinson, cannot be excluded as the biological Father of the Child, X Robinson, because they share genetic markers. Of the genetic identity systems tested, 22 of 22 match. (99.9999957327483% of the Caucasian-Australian male population is excluded from the possibility of being the biological Father). The probability of the stated relationship is indicated below, as compared with an untested, unrelated Caucasian-Australian male. Analyses, with the exception of sample collection, were conducted in accordance with the Standards for PCR DNA analysis set forth by the AABB.

31. The Court being satisfied that the mother has been served with the applicant’s Initiating Application and Affidavit and the orders of 15 December 2020 which include the date of the hearing before me in the Judicial Duty List and the mother not having filed any answering material and not appearing or being represented at the hearing, I am satisfied on the basis of the unchallenged evidence of the applicant that he is the child’s father I propose to make the orders he seeks, including the order requiring the mother to return the child to the Commonwealth of Australia albeit the orders need to reflect the possibility that the mother may not be in a position to immediately return to Australia because of quarantine requirements. I propose to otherwise adjourn the matter to the Registrars Directions List. The mother having removed the child from the Commonwealth of Australia and having not participated in the proceedings I have little confidence that the mother will sign the documents provided by the Applicant in order to ensure his name is recorded on the child’s birth certificate. Accordingly in order to avoid the need for the Applicant to make a further application I have included an order that should the mother fail to do so a Registrar of the Family Court of Australia sign the required documents on behalf of the mother pursuant to s 106A of the Act.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Macmillan.

Associate: 

Dated:       19 February 2021