Wang and Lo
[2014] FCCA 1624
•3 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WANG & LO | [2014] FCCA 1624 |
| Catchwords: FAMILY LAW – Parenting – parental responsibility – application for issue of an Australian passport by virtue of mother’s Australian citizenship – paternity and maternity of subject child in issue – presumption of parentage applied. |
| Legislation: Family Law Act 1975 (Cth), ss.55A, 60B, 60CA, 60CC, 61B, 61DA, 65C, 65DAA(5), 65DAC, 69E, 69P, 69Q, 69R, 69S, 69T, 69U, 69V |
| Nelson & Nelson [1995] HCA 25 Elias & Elias (1977) FLC 90-267 |
| Applicant: | MS WANG |
| Respondent: | MR LO |
| File Number: | PAC 868 of 2014 |
| Judgment of: | Judge Harman |
| Hearing date: | 3 March 2014 |
| Date of Last Submission: | 3 March 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 3 March 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Goodwyn Legal |
| Solicitors for the Respondent: | Self-represented |
ORDERS
Grant leave to the Respondent to file in Court an Affidavit.
Pending further Order, the Applicant Ms Wang, also known as Ms Wang shall have sole parental responsibility for the child X born (omitted) 2003.
Pending further Order, X shall live with Ms Wang.
IT IS NOTED that no Order has been made allocating parental responsibility to the Mr Lo nor making any provision for time or communication in his favour and with respect to same:
(a)Mr Lo denies paternity of the child and thus Orders are made as follows to seek to forensically investigate that allegation; and
(b)Ms Wang should thus be taken, for the purposes of the both the Family Law Act and section 11 of the Australian Passports Act as the person with sole parental responsibility for the child and thus the sole person entitled or required to execute any document seeking the issue of an Australian passport or other travel document for the child X.
Pursuant to section 69W of the Family Law Act1975:
(a)Each of the parties, Ms Wang and Mr Lo, shall forthwith provide a genetic sample in accordance with the Family Law Act1975 and regulations for the purpose of that sample being provided to and submitted to (omitted) Pty Ltd for testing;
(b)The Applicant shall ensure that a sample is also collected from the child, X born (omitted) 2003, and within the same time period;
(c)Each of the parties shall do all acts and things and sign all documents and provide all material including any photograph as may be required by the Act or Regulation or the laboratory and shall follow all reasonable regulations of the laboratory or collecting agent;
(d)The Applicant and Respondent shall, at first instance and within 14 days or such other period as (omitted) Pty Ltd may advise as acceptable to them, pay half of all costs and fees with respect to collection of samples and subject to reservation as to the issue of costs and/or contribution of same to be determined upon release of any testing report;
(e)Upon provision of the testing report the parties and each of them shall ensure a copy is filed with the Court.
(f)The parties are to ensure that all samples for testing are to be collected within the Commonwealth of Australia.
Each of the parties shall do all acts and things necessary to obtain a full record of their exit from and entry into the Commonwealth of Australia for the period from 1 January 2000 to date.
Invite the Minister or appropriate officer of the Department of Foreign Affairs and Trade to intervene in these proceedings and noting:
(a)Issue is raised by the Mr Lo as to both the paternity and maternity of the child X, the subject of these Orders; and
(b)Upon completion of parentage testing (or in the event that one or other party should fail to participate in such testing upon such evidence as is available to the Court) the issue of the child’s parentage will be addressed and subject to such findings as are made and particularly in the event that the evidence establishes that Ms Wang is not the mother of the subject child and Mr Lo is not the father of the subject child then a significant fraud would then arise as against both the Commonwealth of Australia and the government of the People’s Republic of China and such that the child X would not be entitled to Australian citizenship or the issue of an Australian Passport.
Direct that a copy of these reasons together with the documents filed in these proceedings and considered for today’s determination, namely:
(a)The Initiating Application filed 27 February 2014;
(b)The Affidavit of Ms Wang sworn or affirmed 24 February 2014; and
(c)The Affidavit of Mr Lo filed in Court today are to be forward to the Office of the Minister for the Department of Foreign Affairs and Trade for their consideration.
The matter is adjourned for further mention and directions to 7 July 2014 at 11:30am.
Grant leave to the parties and should a decision to intervene in the proceedings be affirmatively made the Office of the Minister for the Department of Foreign Affairs and Trade to relist the proceedings before me on 7 days’ notice in accordance with Federal Circuit Court protocols.
IT IS NOTED that publication of this judgment under the pseudonym Wang & Lo is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 868 of 2014
| MS WANG |
Applicant
And
| MR LO |
Respondent
REASONS FOR JUDGMENT
The proceedings
These are proceedings commenced by an Application initiating proceedings filed 27 February 2014.
The parties to the proceedings are Ms Wang, who is the Applicant and putative mother, and Mr Lo, who is the Respondent and putative father.
I have used the above terms deliberately as issue is raised in these proceedings as to both the paternity and maternity of the subject child, namely X born (omitted) 2003.
X was born in the People’s Republic of China, although he is entitled to Australian citizenship through the citizenship of the putative parents. The child is entitled to the issue of an Australian passport and other travel documents by virtue of his putative mother’s Australian citizenship.
Parental Responsibility
A passport has clearly been issued for this child previously. Indeed, a copy of that passport is annexed to the mother’s material. That passport is expressed to expire today.
It is in those circumstances that the mother has made her Application supported by Affidavit evidence, seeking Orders on both a final and interim basis sufficient to invest her with parental responsibility and divest the Respondent of parental responsibility and to allow her to make an Application for the issue of an Australian passport for this child.
Whilst there is power and authority under the Family Law Act 1975 (Cth) to make an order for parental responsibility, the meaning of “parental responsibility” under the Family Law Act and the meaning of that term under section 11 of the Australian Passports Act 2005 (Cth) are not identical.
Under the provisions of the Australian Family Law Act and at section 61B parental responsibility is defined in the following terms:
Parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Under section 11 of the Australian Passports Act parental responsibility is defined in section 11, subsection (5) in the following terms:
(5) For the purposes of this section, a person has parental responsibility for a child if, and only if:
(a) the person:
(i) is the child’s parent (including a person who is presumed to be the child’s parent because of a presumption (other than in section 69Q) in Subdivision D of Division 12 of Part VII of the Family Law Act 1975); and
(ii) has not ceased to have parental responsibility for the child because of an order made under the Family Law Act 1975; or
(b) under a parenting order:
(i) the child is to live with the person; or
(ii) the child is to spend time with the person; or
(iii) the person is responsible for the child’s long‑term or day‑to‑day care, welfare and development; or
(d) the person is entitled to guardianship or custody of, or access to, the child under a law of the Commonwealth, a State or a Territory.
Accordingly, parental responsibility for the purpose of section 11(5) of the Australian Passports Act is far broader than that contained within the Family Law Act.
It is also of some relevance to consider the presumptions in subdivision D of division 12 of part VII of the Family Law Act and the evidence of the parties with respect to paternity and maternity.
Subdivision D sets out a number of presumptions with respect to parentage. They commence at section 69P and continue through to section 69U (whilst the Australian Passports Act makes clear that the presumption which arises from section 69Q is not relevant for the purposes of the Australian Passports Act).
Section 69P provides a presumption of parentage arising from marriage of putative parents. It is in the following terms:
If a child is born to a woman while she is married, the child is presumed to be a child of the woman and her husband.
This presumption, on its face, applied to these parties. Difficulty, however, arises from the evidence of the Respondent. The evidence of the Respondent is in clear terms.
At paragraphs 1, 2 and 3 of an Affidavit of the Respondent filed in Court today, and as to the filing of which no criticism can be raised as the proceedings only came into existence two working days ago, the following is deposed:
Ms Wang is not X’s biological mother. X’s bio-parents are Ms Wang’s younger brother and his wife’ [sic] second son.
Ms Wang signed X’s birth certificate was [sic] helping her younger brother to avoid fine from “one child policy” in China.
X was born on (omitted) 2003.
The birth certificate for the child, which is annexed to the mother’s material, is at best, difficult to read as to the date of birth. The date would appear to be 12 November 2003. This is consistent with the Application for Divorce and is consistent with evidence by the Respondent.
The Respondent also asserts that the birth certificate suggests a gestation period prior to birth of 37 weeks. That is certainly stated on the document. The Respondent extrapolates that this would mean that the Applicant would have fallen pregnant on or about 26 February 2003.
The Application for Divorce of the parties annexed to the Applicant’s material, would appear to have been filed with the Federal Magistrates Court (as it was), Parramatta, in or about February 2006. That Application alleges that the parties married on (omitted) 1996 and separated on 12 December 2004. Thus the child’s birth as registered occurred during the period that the parties were married and the presumption contained in section 69P would appear to apply.
Presumptions of paternity
Section 69Q, the presumption of paternity arising from cohabitation, is not relevant for the purpose of the Australian PassportsAct. However, it has some relevance in the context of this issue, unusual as it is.
It is suggested by the Respondent that the Applicant was absent from Australia with an elder child of the relationship or, possibly, on the Respondent’s allegation, the only biological child of the relationship, being the child Y, for a period from (omitted) 2002 until the end of 2004.
The Respondent annexes certain travel documents, including photos of an Australian passport for Y, now cancelled, suggested to be covering that period. From a cursory examination of those documents it is difficult to substantiate that it is so. However, a more comprehensive document can be obtained by the parties and an Order will be made for it to be obtained to corroborate when both Y and the Applicant had travelled to and from Australia.
The presumption of parentage arising from section 69P might apply (as the parties were married at the time of the child’s conception and birth and separated thereafter). The presumption would not definitely establish either paternity or maternity with respect to this child.
The Respondent’s evidence is that:
a)For the entire period, 20 December 2002 until 2004 the Applicant was absent from Australia and did not return to Australia. This period commenced 3 months prior to the child’s conception and concluded some months following the child’s birth;
b)The Respondent was present in Australia for the entire period; and
c)The parties were not engaged in a sexual relationship during this period and thus the Respondent could not be the child’s father.
Section 69R provides a presumption of parentage arising from registration of birth. That presumption is in the following terms:
If a person’s name is entered as a parent of a child in a register of birth or parentage information kept under a law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction [and for present purposes I accept that the People’s Republic of China is or may be such a prescribed overseas jurisdiction] the person is presumed to be a parent of the child.
The birth certificate for this child nominates each of the Applicant and the Respondent as mother and father respectively of the child X. However, there is nothing to suggest whether the birth certificate as issued required the consent or execution of either party and certainly the Respondent alleges he provided no such consent. In any event, that is not what the presumption addresses. That presumption would assuredly favour a finding, absent any other evidence, that the child is a child of the parties.
Section 69S provides for presumptions of parentage arising from findings of courts. There is no evidence to suggest that this has arisen.
Section 69T provides a presumption of paternity arising from acknowledgements. Again, there is no suggestion from the material available that the application for registration of the child’s birth affected in China, assuming again, that it is a prescribed overseas jurisdiction for the purpose of the section, was subject to the consent and acknowledgement or execution of any document by either of the parties. Accordingly, it is difficult to ascertain whether that presumption would arise.
Section 69U provides the basis for rebuttal of the various presumptions. It provides at subsection (1) that:
(1) A presumption arising under this Subdivision is rebuttable by proof on a balance of probabilities.
And at subsection (2):
(2) Where:
(a) 2 or more presumptions arising under this Subdivision are relevant in any proceedings; and
(b) those presumptions, or some of those presumptions, conflict with each other and are not rebutted in the proceedings;
the presumption that appears to the court to be the more or most likely to be correct prevails.
Clearly there is a presumption that would support a finding, as alleged by the Applicant, that she and the Respondent are the parents of the child. Similarly, there is a presumption that would support a finding to the contrary, thus two presumptions are in operation. I am not in a position, on the evidence available, to determine which is more likely to be correct.
Envisaging such circumstances, parliament has included subdivision E providing for the production or commissioning of parentage evidence.
Section 69V provides:
If the parentage of a child is in question [and again, it is to be noted that in this case it is not just paternity but maternity that is in question] the court may make an order requiring any person to give such evidence as is material to the question.
The Court is then authorised to make a series of orders with respect to parentage testing. That would appear to be an appropriate path forward to obtain the best possible evidence. Whilst parentage testing is exclusive, thus it cannot confirm beyond all reasonable doubt that one or other of the parties is a parent of the child, using parent in its narrow biological sense, it certainly can exclude one or other of the parties from parentage.
The Respondent suggests that the child has some biological connection to the Applicant, being a child of the Applicant’s brother and his wife. There is no evidence to suggest that there is any biological relationship or connection between the Respondent and those persons. Thus, one would think exclusive testing such as paternity testing would have some real importance in producing and providing the best available evidence to deal with and address the factual controversy.
I propose in due course to make Orders to that effect. It is an important issue to determine, both jurisdictionally and as regards the Court’s role as the third branch of executive government in ensuring the efficacy of process. In this case, a passport has been issued to young X. Indeed, he has been granted, as a matter of right and entitlement, and appropriately so, citizenship to the Commonwealth of Australia.
If the allegations of the Respondent are correct, the child X, is not entitled to Australian citizenship. He is not entitled to the issue of an Australian passport.
Parenting jurisdiction
It may well be that the Applicant is still a person entitled to make application under part VII of the Family Law Act for parenting orders with respect to the child. Indeed, so much would appear to be clear from section 65C of the Family Law Act which provides:
A parenting order in relation to a child may be applied for by:
(a) either or both of the child’s parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.
If the Respondent’s allegation is not correct and the maternity of the child lies with the Applicant then clearly, the Applicant is a person entitled to apply for orders under the Family Law Act, as well as to seek a passport for the child, and to seek citizenship on behalf of the child. However, that is not the allegation that is raised by the Respondent. He puts into question both paternity and maternity.
On the basis of the allegation that is raised there has been, potentially, and if the Respondent’s case is ultimately found proven, a serious fraud upon the Commonwealth of Australia and upon the government of the People’s Republic of China.
However, I accept for present purposes and pending the production of parentage testing evidence that the Court is seized of jurisdiction to deal with these proceedings as:
(a)Section 65C gives to the Applicant, whether she is biologically the parent of the child, or emotionally the parent of the child, the right to apply for a parenting order.
(b)Section 69E would establish that the Court has jurisdiction to deal with the proceedings. That section provides:
(1) Proceedings may be instituted under this Act in relation to a child only if:
(a) the child is present in Australia –
Which clearly, young X is not –
(b) the child is an Australian citizen –
Which clearly, X is, or –
(c) a parent of the child is an Australian citizen –
Which clearly the Applicant is.
I am satisfied that I can and should, for the purpose of the interim application before me today, proceed on the basis of the presumptions, evidential and otherwise, and thus accept on its face, by reference to the child’s birth certificate, and the presumptions which operate in favour of the Applicant, that the Applicant is a parent of the child until proven otherwise. The Respondent has had the child’s whole life to raise the issue and has not. On that basis, I am satisfied the Court is appropriately seized of jurisdiction and can proceed to dispose of, at least the interim parenting application.
The Application that is made to the Court seeks Orders which would invest the Applicant with sole parental responsibility for the child, for the child to live with the Applicant, to travel internationally without the consent of the father, whom I will refer to as “the Respondent” in light of his denial of paternity, and an Order authorising the child to travel internationally without any other person’s consent.
The efficacy of the Application would be concerning by and of itself. The evidence suggests that this child was born in China, has lived in China all of his life, is habitually resident in China, and has no connection with Australia, other than the grant of Australian citizenship as of right as a consequence of the Applicant’s Australian citizenship.
As to appropriate forum, whilst some argument may be raised with respect to same, that cannot be determined until the issue of paternity is determined. In those circumstances, I propose to assume jurisdiction and deal with the interim application.
The evidence is somewhat uncontroversial as regards X’s history in this world. This young man, now 10 years of age, lives with the Applicant in China. X has had little, if any, time or communication with the Respondent. Indeed, the Application for Divorce filed by the parties makes clear that the child will live with the mother and her parents in China “as he done so since birth”. It is suggested in the Application for Divorce that, whilst the mother is working away or otherwise engaged, the child would be cared for by maternal grandparents and that the child is seen, or would be seen, by the Respondent once a year whilst he was visiting China.
The elder child Y also detailed in the Application for Divorce and as to whom there is no issue of paternity is described as living with the Respondent and continues to do so. Y is described as spending time with and seeing the Applicant when she visits Australia or when that child has visited China.
The Application for Divorce is suggested to be another basis upon which the Court would reject the allegations now raised by the Respondent as to the paternity of the child. That is on the basis, one would presume, that the divorce was a joint Application for Divorce and thus, each of the parties swore an oath or made an affirmation to the effect that all facts within the Application were within their personal knowledge and true. On that basis, it may represent a prior inconsistent statement or representation, (as to which one might have regard to authorities such as the High Court’s decision in Nelson & Nelson [1995] HCA 25), as well as representing a finding of the Court and, thus, attracting the presumption in section 69S of the Family Law Act that which arises from prior findings of courts as to paternity.
However, the Application for Divorce does not at any point make an assertion or seeks to maintain, biological paternity of the child, X or for that matter, Y. The Application nominates each of those children as children for the purpose of divorce, which are specified clearly in question 24 of that Application to include “children treated as members of your family when you last separated.”
For the purpose of divorce, section 55A of the Family Law Act applies. The Court is required to declare its satisfaction that appropriate arrangements have been made for “children of the marriage” being that broad category of children who are considered as members of the household, or who have lived as part of the household at any time.
I am not satisfied that I could, by and of itself, without recourse to authorities such as Nelson & Nelson or decisions referred to in single instance and Full Court decisions of the Family Court, such as Elias & Elias (1977) FLC 90-267, (which would appear to be inconsistent with the High Court’s decision in Nelson & Nelson), find that the Respondent is estopped or in any way precluded from now leading the evidence which he seeks to lead. There is, put shortly and bluntly, no evidence that Mr Lo has previously asserted either his paternity or Ms Wang’s maternity of the child.
In dealing with those matters I propose, as indicated, to make Orders for parentage testing, and so as to seek to elicit the best and most reliable forensic scientific evidence available to address that issue as authoritively as can occur.
I propose also, as I raised with the parties prior to their submissions, to extend an invitation to the Minister or appropriate officer of the Department of Foreign Affairs and Trade to intervene in these proceedings should they wish, and require that the Court serve upon that office a copy of these Reasons, together with a copy of the documents that the parties, and each of them, have filed in these proceedings.
Awaiting determination of that request and the completion of testing, I am satisfied that the issue raised as to this child’s passport and general living arrangements has a degree of urgency sufficient to warrant the matter proceeding today. I am satisfied that section 60CA would compel such an approach providing as it does, that the child’s best interests are the paramount consideration in addressing any parenting application.
The mother’s evidence is that the child’s passport will expire today. The mother is clear in her evidence that the child’s right to reside and to be at liberty within the People’s Republic of China is based upon the child holding a valid Australian passport. If the child does not have a passport, the mother’s evidence is clear (see paragraph 20 of her Affidavit), that the child:
...could be deemed an illegal alien in China and I am afraid that he could be detained in a detention centre or deported back to Australia. An expired passport would also mean that X would not be able to travel back to Australia. Accordingly, it is extremely important that I renew his passport due to the above-mentioned circumstances.
In that regard, I note that section 7 of the Australian Passports Act creates a right in Australian citizens, and unless and until action is taken by the appropriate authority through the Office of the Minister for the Department of Foreign Affairs and Trade to revoke citizenship, to be issued with an Australian passport. That right is impacted by section 8 of the Australian Passports Act. However, I am not satisfied that the preconditions for that interference are presently in play.
Following the completion of paternity testing and such other evidence as may be available being placed before the Court and considered and relevant findings of fact made, section 8 may well then significantly affect that right, in that section 8 provides, under the heading “Minister to be satisfied of a person’s citizenship and identity”, that prior to issuing a passport the Minister must be satisfied:
(a) that the person is an Australian citizen; and
(b) of the identity of the person asserted.
Both of those matters, the child’s right to citizenship and the child’s identity are challenged in the Respondent’s evidence. They are, however, matters to await determination on another day.
It is also to be noted that the young person has a right to the issue of a passport under the provisions of the International Convention on the Rights of the Child, which Convention is incorporated in its entirety as part of the objects and principles of the Family Law Act.
Under the Convention, the child has certain rights regarding nationality, identity and travel. Article 8 of the Convention provides that it is the right of a child to preserve his or her identity including nationality, name and family relationships without unlawful interference from the State or other persons.
A child has a right, consistent with the rights set out in the Universal Declaration of Human Rights, to travel and to achieve that purpose the child would require a passport.
In all of those circumstances, I am satisfied that I can and should deal with the interim issue today and delay determination of the final issue on appropriate evidence.
Parenting Orders
In dealing with the application for the issue of a passport and appropriate parenting Orders that would seize the Applicant with sole responsibility for such application I must commence with the objects and principles, set out in section 60B.
It is explicable that one would have little or no regard to the Respondent for the purpose of addressing the child’s rights by reference to section 60B. The Respondent decries any parentage of the child and to his credit, he has frankly and fully made clear that he does not consider X his child, does not have any relationship with him and does not intend to pursue one.
In those circumstances, there is also potentially a jurisdictional issue that would arise once forensic testing has been undertaken and parentage can be more fully addressed. If the Respondent is excluded from paternity, the Applicant will need to address whether the proceedings can be properly maintained before the Court, absent the child’s father and a contra-agitator. That will be a very real problem in the event that the Respondent is excluded from paternity. In the event the Applicant is also excluded, the proceedings clearly could not be maintained.
These are matters that can and will be addressed in due course and with appropriate evidence. However, on the basis that the disavowal of any right, role, involvement or relationship with the child, clearly, the Respondent would not seek to have the benefit of the objects and principles apply as regards any consideration of the child’s relationship with him or his allocation of or exercise of parental responsibility.
Section 60CA is then considered.
I must then consider section 61DA and determine whether the presumption of equal shared parental responsibility applies between the putative parents. I propose to proceed to consider that issue and to consider each party as a “parent”. The Family Law Act presumptions of paternity would support that occurring.
I have the fact that the parties were married at the time of conception and the birth of the child. Although, it is suggested but cannot be clearly ascertained from the documents available, that the parties did not come into physical contact or engage in sexual congress with each other during the entirety of that period, the child’s birth occurred during marriage and is registered as reflecting both parties as parents.
Whilst the Respondent asserts that he is not X’s father and tenders a copy of the elder child Y’s passport as corroborative of his proposition, it is not possible, from the entry and exit visas on that passport, to ascertain whether the child was present in Australia or in China for the periods that the Respondent asserts. However, accepting that it is so, that is as high as it takes the matter.
The child Y may have been present in China for the entirety of that period, but it does not give me insight let alone probative evidence as to whether the Applicant and/or Respondent were present with him in China at any particular time. As I have indicated, the parties will be directed to issue a subpoena or obtain, by freedom of information application or otherwise, material from the Department of Foreign Affairs and Trade, which clearly enumerates their entries and departures.
The Applicant is at least entitled to the benefit of a presumption that she is the child’s mother. Before the Court is what purports to be and, on its face, would appear to be a copy of the original birth certificate for the child issued by a People’s Republic of China Government Agency together with a translation of that birth certificate which would appear to have been endorsed by a notary public. Those documents are admissible by reference to sections 48 and 69 of the Evidence Act 1995 (Cth).
On the basis of those documents there is sufficient material, pending evidence that will be obtained and addressed at final hearing, to substantiate and found jurisdiction at this point.
On the basis of the disavowal of paternity by the Respondent, I am satisfied that the presumption of equal shared parental responsibility could not apply as between the Applicant and the Respondent. Lest I am wrong in that which has been found above, I am satisfied that the presumption of equal shared parental responsibility is rebutted.
Clearly, there has been abandonment, a rejection one might say, of any parental responsibility on the part of Mr Lo. That has been so for some years, in fact, since the child’s birth.
In those circumstances, I am satisfied that it would not be in the child’s best interests for the presumption to apply.
That being so I am not mandated to consider equal or substantial and significant time before considering any other time arrangement. In any event, I will consider all arrangements at large and by reference to section 60CC of the Family Law Act.
In turning to section 60CC I must commence with the primary considerations being:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In this case there is no suggestion that either parent poses, has ever posed or would in the future pose a risk of physical or psychological harm to the child.
It is also equally clear that the child has a relationship with the Applicant, although the Respondent seeks to put in issue the living arrangements for the child. The child has no relationship with the Respondent. It is pointless to even seek to engage in a discussion as to meaningfulness, the relationship being non-existent as it is and on the Respondent’s own evidence as corroborated by the Applicant.
The primary considerations are of little assistance.
I am satisfied that there is a potential risk to the child in the event that I accept, as I do for present purposes, the Applicant’s evidence that the child may, if the passport for the child has expired, be subject to detention and/or deportation from the People’s Republic of China. That is in no way a slight upon the government of that country or its immigration policies or those relating to residence within the country. They are entirely a matter for the government of the People’s Republic of China.
However, accepting the mother’s evidence for present purposes on its face as accurate or, more likely to be accurate, there is a risk to the child of separation from significant carers which would cause some concern for the child’s wellbeing unless relief were granted.
Additional considerations
Views
It is suggested on the mother’s evidence that the child lives with her and other maternal relatives, desires to continue to do so and knows that as the only arrangement that has ever subsisted for his care. The child has a close, primary and meaningful relationship with the mother and maternal family.
The child’s views and past care arrangements would support the relief proposed by the mother. This includes that the child live with her, that she have sole parental responsibility and that I make no order in favour of the Respondent as to time or communication. Indeed, none is sought in the circumstances described.
Nature of the child’s relationship with each parent and other persons
Clearly, the child’s primary relationship is with the Applicant and/or maternal family members. The child has no relationship with the Respondent.
The extent to which the child’s parents have taken or failed to take the opportunity to participate in decision making, spend time or communicate with the child
The Respondent is clear that he has taken no step to participate in decision making, spend time with or communicate with the child and for the explicable reasons he offers i.e. that he is not the father of the child and Ms Wang is not the mother of the child.
The extent to which each child’s parent has fulfilled or failed to fulfil their obligation to maintain the child
Mr Lo does not and has never provided financial assistance for X but, again, that is entirely explicable. He makes clear that both he and Ms Wang are fully aware of the fact that he is not the child’s father. Thus, it has not been sought, nor paid nor offered.
Likely effect of change including separation from either parent or any other child or person
Irrespective of the living arrangements that apply for this child in the People’s Republic of China, they are the arrangements that this child has lived in since birth.
The mother asserts, including within the joint Application for Divorce which both parties affirmed as accurate and truthful, that the child lives with her and extended maternal family members.
In those circumstances, I am satisfied there would be a wholly detrimental effect of any separation of this child from the Applicant or maternal family members and present carers. That may well arise in the event that Orders are not made as sought by the Applicant.
That would not of itself be a basis to accede to the Application. However, as the Applicant is entitled to the benefit of the presumptions which arise from the registration of the child’s birth, the issue of a government agency document, (which purports to corroborate both maternity and paternity of the child) and her own evidence on oath, I am satisfied that the section is satisfied on the basis of available, admissible and certainly for the purpose of this interim determination, probative evidence.
Practical difficulty and expense
Clearly, these parties do not communicate and have never made joint decisions, as section 65DAC would require if an order for equal shared parental responsibility was in place. The parties have no capacity to do so. They live in different countries some 12 to 14 hours apart by air.
Mr Lo has never sought to pursue a relationship or involvement in decision making and thus, the parents have no capacity to resolve difficulties or make consensual decisions. That would all weigh in favour of the relief sought by the Applicant.
Capacity of the parents and others to meet the child’s needs
I am satisfied that the child’s needs are presently met and on even a cursory acceptance of the Applicant’s evidence met by the Applicant and members of her extended family. The Respondent’s capacity to provide for the child is untested. He has not sought to pursue it at any time nor will he in the future.
Maturity, sex, lifestyle and background of the child (including culture and traditions)
Young X has lived his whole life in China with persons whom he believes to be his mother and extended maternal family. That may well be challenged and tested by the further Orders that will be made. But they must be addressed as they are matters of great significance. To allow the matters to remain untested when such an allegation is raised and when the allegation can be so readily addressed would be inappropriate.
The court has an obligation and a responsibility to ensure that such a suggested fraud does not go without investigation and appropriate determination. However, for this child, they are matters of little importance. His perception and his reality, on the Applicant’s evidence, is that the Applicant is his mother. He may not know the Respondent, the person asserted as his father, but that is a circumstance he has been familiar with all of his life.
This child lives in China, always has and should, on an interim basis and to the extent that Orders of this Court influence the matter, be allowed to continue the benefit of residing in China with the Applicant.
Until evidence is produced which allows conclusive determination of the controversy, the child should be allowed to continue with his rights, under both domestic and international law, of citizenship and travel documents.
Aboriginality
The child is clearly not from an Aboriginal or Torres Strait Islander background.
The attitude to the child and responsibilities of parenthood
This is not raised as a significant issue.
Family violence
No such allegations are raised.
Family violence orders
There are none that the Court is aware of.
Whether it is preferable to make orders that will least likely lead to the institution of future proceedings
I am satisfied that the matter cannot and should not conclude on a final basis today. Irrespective of the controversy which has arisen in the matter as to the child’s maternity and paternity, I could not be satisfied on the scant evidence available that final orders could or should be made of the nature sought by the Applicant.
The Respondent has had one working day’s notice of the proceedings. It is to his credit that he has attended today and provided affidavit evidence. The Respondent is entitled to an opportunity to address the matter in a slightly more dignified and responsible fashion.
I am satisfied that the proceedings must be adjourned to enable inquiry, through issue of subpoena or freedom of information applications, and particularly through genetic testing, as would address the controversy as to the child’s paternity and maternity. Future proceedings can be avoided by addressing those matters now.
Should it transpire that the child is neither the child of the Applicant or the Respondent, there will be no further proceedings before this Court. All that would arise would be a referral of the papers, or in the event that the invitation for intervention was taken up by the Office of the Minister for the Department of Foreign Affairs and Trade, action by that office to cancel the child’s passport and citizenship and the matter would be addressed in other fashion.
Other facts and circumstances
I make clear that the consideration of reasonable practicality above has also been intended to address the factors in section 65DAA(5). I am satisfied that those factors have been so addressed.
In all of those circumstances, I am satisfied that the relief sought by the Applicant on an interim basis is appropriate and in the child’s best interests, together with the additional Orders I have identified.
Referral
Prior to submissions I invited submissions as to why a referral of the papers to the appropriate government department should not occur together with an invitation to intervene should they so desire.
No submissions have been made notwithstanding that notice and invitation and I propose to refer the papers.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Harman.
Associate:
Date: 24 July 2014
Key Legal Topics
Areas of Law
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Family Law
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