ZANG & ZHAO

[2016] FCCA 307

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZANG & ZHAO [2016] FCCA 307

Catchwords:
FAMILY LAW – Children – parenting – application by stepmother – one child aged 17 years 8 months – whether applicant is a person concerned with the care, welfare or development of the child under Family Law Act 1975 (Cth), s.65C.

FAMILY LAW – Children – parental responsibility – application for order dealing with allocation of parental responsibility where no parent, grandparent or other relative would be allocated parental responsibility for the child under Family Law Act 1975 (Cth), s.65G

MIGRATION – Visa – Bridging visa – application for bridging visa – application incompetent – no jurisdiction.

MIGRATION – Injunction – application for injunction to restrain child from being removed from Australia – where no evidence that any party is seeking to remove child from Australia.

PRACTICE AND PROCEDURE – Summary dismissal – where application for interim orders incompetent

PRACTICE AND PROCEDURE – Short notice – application for orders on short notice – no evidence of urgency.

PRACTICE AND PROCEDURE – Application to amend – where applicant seeks to amend application to add the Minister for Immigration and Border Protection as a party – application refused as futile.

PRACTICE AND PROCEDURE – Documents – documents should be written in the English language or accompanied by a translation – where handwritten document in Chinese annexed to affidavit without a translation.

Legislation:

Family Law Act 1975 (Cth), ss.61DA, 65C, 65G

Federal Circuit Court of Australia Act 1999 (Cth), s.17A
Migration Act 1958 (Cth), ss.29, 37
Federal Circuit Court Rules 2001 rr.2.01, 13.10

Applicant: MS ZANG

Respondent: MR ZHAO

File Number: SYC 8362 of 2015

Judgment of: Judge Scarlett

Hearing date: 16 February 2016

Date of Last Submission: 16 February 2016

Delivered at: Sydney

Delivered on: 16 February 2016

REPRESENTATION

Solicitor for the Applicant: Dr Zhang

Solicitors for the Applicant: Ren Zhou Lawyers

Respondent: No Appearance

ORDERS

1. The Application filed on 12 February 2016 for interim and final orders is summarily dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 8362 of 2015

MS ZANG

Applicant

And

MR ZHAO

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application purporting to be an Application for a final parenting order in respect of a girl who is currently aged 17 years and 4 months. The interim orders sought, however, appear to have nothing to do with the Family Law Act 1975 (Cth) at all, but appear to be related to migration matters. Those orders sought appear to be entirely misconceived.

2. The interim orders sought are entirely without jurisdiction and the final order sought, relating solely to parental responsibility, appears to be futile at best.

3. It is difficult to see why the Application should not be summarily dismissed.

Orders Sought

1. The Applicant states that she is the stepmother of the child. The Respondent is the child’s mother, who still resides in China. The child’s father, who was married to the Applicant, died on (omitted) 2015.

2. The Application seeks the following final orders:

   1.  By consent that Ms Zang to hold parenting responsibility for X ((omitted) 1998) while she is in Australia, and,

   2.  Such parenting responsibility is till X turns to 18^th birthday

3. The Application also seeks interim orders, which do not appear to be related to family law matters at all, but to matters under the Migration Act 1958 (Cth).

4. The interim orders sought are:

   1.  That the child X to be allowed to remain in Australia until the final order is made; X is to be entitled to receive education at (omitted) High School as domestic student until the final order is made, and

   2.  That a bridging visa is to be granted until the final order; and

   3.  That the above orders sought is in short notice. 

Evidence and Submission

1. The Applicant relies on the following:

   a)her affidavit of 18 December 2015; and

   b)the affidavit of the Respondent mother of 22 December 2015.

2. The Applicant’s evidence is contained in her short affidavit of 18 December 2015. Essentially, she deposes that she is the child’s stepmother. The child has been living with her since 23 November 2014.

3. The child’s mother resides in China.

4. The Applicant married the child’s father on (omitted) 2013. He came to Australia on what she described as a “partner visa”.[1]He was accompanied to Australia by the child, who was apparently the subject of a custody or residence order in China. There is a reference to an Annexure “B” which apparently has some significance, but as it is in Chinese handwriting and not accompanied by a translation it is not possible to discern what that significance is.

   [1] Affidavit of Ms Zang 18.12 2015 at paragraph [2]

5. Rule 2.01 requires at subrule (1)(e) that documents should be written in English, either that or a translation should be provided.

6. The Applicant’s husband died on (omitted) 2015. The child has remained living with the Applicant. She attends (omitted) High School where she was in Year 10 in 2015 and presumably is now in Year 11. The child’s school report forms Annexure “C” to the Applicant’s affidavit. It appears that the child, who is apparently known by the name of X at school, made excellent progress in Year 10.

7. The Applicant deposes that she has been taking care of her step-daughter and that she has the consent of the child’s mother to obtain an order for parental responsibility.

8. The affidavit of the Respondent, the child’s mother, affirmed 22 December 2015 at the Australian Consulate General in Shanghai, confirms the essential details of the Applicant’s affidavit. The mother was formerly married to the child’s father.

9. There is a reference to a document which confirms that the child’s late father had custody of the daughter when the parties’ child when they divorced, which is said to form Annexure “A” to the affidavit. There is no annexure.

Consideration

1. There are several matters for consideration.

2. First, the Applicant is not a relative of the child. She is the child’s stepmother, the widow of the child’s father. She is neither a parent nor a grandparent of the child, so the only category of applicant into which she would come is that specified in s.65C(c) of the Family Law Act 1975:

   any other person concerned with the care, welfare or development of the child.

3. The Applicant, from her affidavit, would appear to fit comfortably into that category, as she deposes that the child has been living with her since 23 November 2014 and, it would appear, continues to live with her.[2] She further deposes that:

   I took care of her as a step mother.[3]

   [2] Affidavit of Ms Zang 13.12.2015 at [1]

   [3] Ibid at [4]

4. I am satisfied that the Applicant has the standing under s.65C(c) to apply for a parenting order, as a person concerned with the care, welfare or development of the child.

5. Curiously, the Applicant is not asking for an order that the child should live with her. The explanation by the Applicant’s solicitor was that the child already lives with her.

6. What appears to be more problematic is the application for an order for parental responsibility for the child, to which the child’s mother consents. It is not clear, but the intention apparently is that the Applicant should have sole parental responsibility for the child.

7. The situation is covered by section 65G of the Family Law Act, which provides:

   65G(1)  This section applies if:

   (a)     a court proposes to make a parenting order that deals with whom a child is to live with; and

   (b)     under the order, the child would not live with a parent , grandparent or other relative of the child; and

   (c) the court proposes to make that order with the consent of all the parties to the proceedings.

   65G(1A)    This section also applies if:

   (a)     a court proposes to make a parenting order that deals with the allocation of parental responsibility for a child; and

   (b)     under the order, no parent, grandparent or other relative of the child would be allocated parental responsibility for the child; and

   (c) the court proposes to make that order with the consent of all the parties to the proceedings.

   65G(2)  The court must not make  the proposed order unless:

   (a)     the parties to the proceedings have attended a conference with a family consultant to discuss the matter to be determined by the proposed order; or

   (b)     the court is satisfied that there are circumstances that make it appropriate to make the proposed order even though the conditions in paragraph (a) are not satisfied.

8. This issue has not been addressed by the Applicant or her lawyer and it is doubtful if they have even turned their minds to it. As there are no interim parenting orders sought, it would appear that this entire proceeding has been brought for reasons to do with the child’s migration status rather than for a parenting order to deal with a child who will become an adult in about eight months’ time.

9. The proposed interim orders relate more to matters to do with the child’s migration status than to any Family Law issues.

10. The proposed Order 1 seeks that:

    a)the child should be allowed to remain in Australia until final orders are made; and

    b)the child should be “entitled to receive education at (omitted) High School as domestic student until the final order is made”.

11. There is no evidence to suggest that there are currently any steps being taken to remove the child from Australia, so the proposed injunctive order, if that is what it is intended to be, appears pointless. If, indeed, the issue is as to the child’s migration status, the fact that the Minister for Immigration and Border Protection has not been joined as a party constitutes a major defect in the Application.

12. The child is already attending (omitted) High School, and there is no evidence to suggest that there is any challenge from any party about her attendance. The question of her entitlement to attend the school as a domestic would, in my view, be more a matter for the NSW Department of Education and Training. The Minister for that Department is not a party to the Application.

13. The Applicant seeks that a bridging visa is to be granted until the final order. This application is fundamentally misconceived. The power to issue a visa is derived from section 29 of the Migration Act 1958, (Cth). Section 37 of the Act specifically provides for the issue of bridging visas.

14. The Court has no jurisdiction to issue a visa of any kind. The power to issue a visa resides in the Minister, as s.29(1) of the Act makes clear.

15. The third interim order sought is that the Application should be heard at short notice. There is no evidence of the need for any urgency whatsoever.

Summary Dismissal

1. The Court has the power of summary dismissal of an application under s.17A of the Federal Circuit Court of Australia Act 1999 (Cth). Rule 13.10(a) provides that:

   The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:

   (a)     the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim.

2. In my view, the Applicant can clearly be shown to have no reasonable prospect of successfully prosecuting the Application, either for interim orders or for final orders. The Application for interim orders is clearly incompetent, as the Court has no jurisdiction to make the orders sought. The Application for final orders appears to be no more than a spurious vehicle to cover some misconceived interim orders.

3. The Application will be summarily dismissed in its entirety.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  19 February 2016