Vatua and Vatua

[2011] FamCA 607

FAMILY COURT OF AUSTRALIA

VATUA & VATUA [2011] FamCA 607

FAMILY LAW – parental responsibility

Family Law Act 1975 (Cth)

APPLICANTS: Mr S VATUA & Ms T VATUA

RESPONDENT: Mr V VATUA & Ms F VATUA

FILE NUMBER: DGC 1761 of 2011

DATE DELIVERED: 26 July 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 26 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Boymal

SOLICITOR FOR THE APPLICANT: Goddard Elliott

THE RESPONDENTS: No Appearance

Orders

1. That Mr S Vatua and Ms T Vatua have parental responsibility for the child B (“the child”) born in 2007.

2. That the child live with the applicants.

3. That pursuant to s.65DA(2) and s.62B, 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 parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

4. That all outstanding proceedings are dismissed.

5. That the reasons relating to these orders be published in due course.

IT IS NOTED that publication of this judgment under the pseudonym Vatua & Vatua is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 1761  of 2011

Mr S Vatua & Ms T Vatua

Applicant

And

Mr V Vatua & Ms F Vatua

Respondent

REASONS FOR JUDGMENT

1. B was born in 2007 in Country C.  She has been the subject of a variety of proceedings despite her very tender years.

2. The proceedings before me were brought by Mr S Vatua and Ms T Vatua.  They are the uncle and aunt of B.

3. Mr V Vatua and Mr F Vatua are the biological parents of B.  They live in Country C with their four children.

4. In an application to the Dandenong Registry of the Court filed 9 June 2011, the applicants Mr S Vatua and Ms T Vatua sought orders that they have parental responsibility for the child and that she live with them.  Mr V Vatua and Ms F Vatua agreed with those proposed orders.

5. On 5 July 2011, Registrar Sikiotis transferred the application for consent orders into open court before me in Melbourne having refused to make the orders in chambers.

6. The background of this case is most unusual.  The child was born in Country C and according to cultural practice, the applicants were asked by the respondents to name her.  According to Country C practice, such an event is a great honour.

7. When the child was ten months old, the respondents came to Australia with her on a travel visa.  The applicants themselves were married in Country C in 1996 and shortly thereafter moved to Australia.  They are Australian citizens.

8. During the visit of the child, the applicants became very attached to her and their child then aged 11 treated the child as a sibling.  Discussion took place about the applicants adopting the child and agreement was reached.  Whilst that may sound callous and surprising to some, in Country C culture such an agreement was all that was required for the adoption to take place.  The respondents returned to Country C and the child remained.

9. The applicants then applied to the Supreme Court of Country C for a guardianship order and the Honourable Justice Andrew granted the application under the Guardianship Act 2004 (Country C) on 2 June 2010 noting that it was in the best interests of the child for the order to be made.  That order provided that the applicants were appointed the child’s legal guardians and had parental responsibility for her.

10. Upon returning to Australia, the applicants engaged immigration lawyers to seek to have the child’s status clarified.  An application for a protection visa was made and the Department of Immigration and Citizenship refused to grant it.  An application was made to review that decision in the Refugee Review Tribunal.  That tribunal refused the application and on 30 June 2011, the tribunal member gave reasons.  It was found that the child entered Australia on a valid Country C passport and was a Country C national.  According to the tribunal reasons, Ms T Vatua accepted that the child could not be classified as a refugee.  Without that status, the child could not be eligible for a protection visa.

11. The tribunal member noted that the applicants intended to apply to the Minister to exercise his personal discretion to grant the child permanent residence under s 47 of the Migration Act 1958 (Cth). In her concluding reasons, the tribunal member noted that it was appropriate and in the public interest for the tribunal to refer the matter for consideration for ministerial intervention and a number of relevant guidelines were then considered.

12. To add to the complexity, the applicants had considered an adoption under New South Wales law but there was no possibility of the Country Cn guardianship order being recognised because of international adoption restrictions.

13. The dilemma is that upon this Court making orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”), the applicants would have sole parental responsibility for the child regardless of where she may live and regardless of the order made in 2010 by the Country C court. Having removed the guardianship and parental responsibility obligations of the child’s biological parents, a return by the child to Country C could create a problem because there would be no person to whom she could be given with legal responsibility for her.

14. As I made clear in discussion with Ms Boymal as counsel for the applicants, I do not intend nor should I be able to, fetter or affect the discretion of the Minister in respect of the application made to him but for the reasons I have just mentioned, orders under Part VII of the Act create a dilemma not easily overcome.

15. Section 65C of the Act provides that a parenting order may be applied for by any person concerned with the care, welfare or development of a child. I am satisfied in this case that the applicants fit within that category not only because of the interest they have shown in the child and their bloodline connection but also because of the order of the Supreme Court of Country C.

16. Section 65D(1) provides that in an application for parenting orders, the Court may make such parenting order as it considers proper.  Presumptions in this case as to responsibility, do not apply because the orders proposed by the applicants are supported by the respondents.  No order for equal shared parental responsibility is sought.

17. For the applicants to seek an order, there must be jurisdiction for the Court to entertain the application. Section 69E(1) provides that proceedings may be instituted under the Act only, insofar as it is relevant, the child is present in Australia on the day upon which the application is filed. On the basis of the evidence of the applicants, I am satisfied that that jurisdictional requirement has been met. Accordingly, notwithstanding the child is neither an Australian citizen or the biological child of the applicants, there is power for the Court to make the orders sought.

18. The first of the orders sought is that the applicants have parental responsibility for the child.  Pursuant to s 64B(2), the allocation of parental responsibility for a child is a matter which may be dealt with in a parenting order.  Section 61B provides that parental responsibility in relation to a child means all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children.  It will therefore be obvious that the Supreme Court of Country C has removed those matters from the province of the biological parents and handed them to the applicants.  Leaving aside any issue associated with the rights of the Australian Government to determine whether the child should remain in Australia, there is no reason that I can see why an order ought not be made replicating what was ordered in Country C giving the applicants all of the necessary responsibilities and duties that they have already fulfilled since the child arrived in Australia in 2008.

19. Section 64B(2) also provides that a parenting order may deal with the person or persons with whom a child is to live.

20. When deciding whether to make a parenting order of a nature of either of the two to which I have earlier referred, the Court must regard the best interests of the child as the paramount consideration. That particular issue is determined by reference to a variety of matters set out in s 60CC of the Act. Interestingly, s 60CC(5) provides that if a court is considering whether to make an order even with the consent of all the parties, it may but is not required to have regard to all of the matters set out in sub-ss 60CC(2) and (3).

21. Section 60CC(2) requires a court to consider the child having a meaningful relationship with both of her parents. All of the evidence points to the fact that the child will have a relationship with her biological parents but not necessarily one of the nature contemplated by the Act.

22. Other considerations include the nature of the relationship of the child with her parents as well as other persons and again the dichotomy is clear.  The applicants will be primarily caring for the child and the relationship by the respondents as parents will be marginal.

23. There are clearly difficulties associated with the biological parents having any relationship of substance with the child but I am very conscious that her background as well as that of all of the parties points to the fact that while such an arrangement might be unusual and even unacceptable in some cultures, this is one in which all parties see enormous benefits for the child.

24. There can be little doubt in this case that the capacity of the applicants to care for the child in Australia in a material sense, may provide for her to have a much better lifestyle than that to which she might otherwise have been accustomed in Country C.  That includes the obvious difficulties of being away from cultural events in Country C but all of the indications of the applicants are that they will continue many of their cultural traditions here in Australia.

25. There are siblings of the child in Country C with whom she will have a distance relationship.  Those are but balancing matters requiring a court to consider, as an overall picture, what proposal best suits the child’s future.

26. Having read all of the affidavit material from both the applicants and the respondents, I am satisfied that it is in her best interests that she lives with the applicants and that they have parental responsibility for her. 

27. I am satisfied in the circumstances that the orders should be made but they should also be drawn to the attention of the relevant Minister and to the extent necessary, an order should be made that the Minister have these reasons if he considers it appropriate.

I certify that the preceding Twenty Seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 26 July 2011.

Associate:

Date:  26 July 2011