Zhi v Registrar General of the Australian Capital Territory
[2023] ACTSC 262
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Zhi v Registrar General of the Australian Capital Territory |
Citation: | [2023] ACTSC 262 |
Hearing Date: | 1 September 2023, 15 September 2023 and 18 September 2023 |
Decision Date: | 18 September 2023 |
Before: | Baker J |
Decision: | I order pursuant to s 19 of the Parentage Act 2004 (ACT) that the second defendant, Mr Xiaoyun Yan, be declared a parent of the child, [redacted], born [redacted]. |
Catchwords: | CIVIL LAW – Parentage Act 2004 (ACT) – Registration of father on birth certificate under Births, Deaths and Marriages Registration Act 2007 (ACT) – where registered father is not biological father – where registered father is not engaged in parenting – where biological father is engaged in parenting – parentage declaration made. |
Legislation Cited: | Births, Deaths and Marriages Registration Act 1997 (ACT) s 16 Court Procedure Rules 2006 (ACT) rr 210, 213 Family Law Act 1975 (Cth) s 60CC(3) Legislation Act 2001 (ACT) Parentage Act 2004 (ACT) ss 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 18, 19, 46 |
Cases Cited: | Gustz & Denniston [2019] FamCA 16 Hasan v Cousins and Foster [2012] ACTSC 88 In the Marriage of Tobin [1999] FamCA 446; 150 FLR 185 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 Kemble & Ebner [2008] FamCA 579; 39 Fam LR 582 Martinez & Rawlinson [2017] FCCA 3103 Re B and J (1996) 135 FLR 472 Ross v Lane Cove Council [2014] NSWCA 50; 86 NSWLR 34 Woollahra Municipal Council v Sahade [2012] NSWLEC 76 |
Texts Cited: | Dickey, Anthony, Family Law (Thompson Reuters Australia, 6th edition, 2014) Family Law Council, Report on Parentage and the Family Law Act (December 2013) Presentation Speech, Parentage Bill 2003 (ACT) (Hansard, 20 November 2003, p 4377) Reithmuller, Grant and Smith, Robin, Family Law (Thompson Reuters Australia, 7th edition, 2022) |
Parties: | Jiaqing Zhi ( Plaintiff) Registrar General of the Australian Capital Territory ( First Defendant) Xiaoyun Yan ( Second Defendant) Qiqian Meng ( Third Defendant) |
Representation: | Counsel J Nottle ( Plaintiff) N/A ( First Defendant) N/A ( Second Defendant) N/A ( Third Defendant) |
| Solicitors Concisus Legal Pty Ltd ( Plaintiff) ACT Government Solicitor ( First Defendant) No Appearance ( Second Defendant) No Appearance ( Third Defendant) | |
File Number: | SC 267 of 2023 |
Publication Restriction: | The child’s name and date of birth are to be redacted from the cover page and paragraph [58]. |
BAKER J:
Introduction
1․The plaintiff, Ms Zhi, applies for a parentage declaration under s 19 of the Parentage Act 2004 (ACT) so as to record that the second defendant, Mr Xiaoyun Yan, is a parent of her child (“the child”). In the alternative, Ms Zhi seeks orders under s 16 of the Births, Deaths and Marriages Registration Act 1997 (ACT) (“BDMR Act”) to alter the details of the child’s father as registered under the BDMR Act, so as to remove the third defendant (Mr Qiqian Meng) as the child’s parent, and include Mr Yan as the child’s parent.
2․As outlined below, there is DNA evidence which demonstrates that Mr Yan is the parent of the child. Mr Yan is now married to Ms Zhi and they have had a second child together. Mr Yan has taken care of the child with Ms Zhi since 2016. He wishes to be recognised as the child’s parent. In contrast, Mr Meng has played no role in the upbringing of the child since she was 14 months old, and has shown no interest in playing an ongoing role as a parent in her life.
3․In these circumstances, I consider that it is appropriate to make a declaration that Mr Yan is a parent of the child.
Background
The child
4․Ms Zhi was in a relationship with Mr Meng from around 3 March 2012 to 17 September 2016. Between 16 September 2014 and 6 January 2015, whilst still in this relationship, Ms Zhi travelled to China. During her stay in China, Ms Zhi and Mr Yan had sexual relations. As a result, Ms Zhi became pregnant with the child who is the subject of this application.
5․Ms Zhi and Mr Meng remained in a relationship, and Mr Meng offered to raise the child with Ms Zhi. When the child was born in July 2015, Ms Zhi recorded the child’s surname as “Yan”, as she believed Mr Yan was the child’s biological father. However, she did not record any other information about the child’s father in the Register.
6․Approximately four months after the child was born, Ms Zhi applied to change the child’s surname to “Meng” and record Mr Meng as the child’s father in the Register. Ms Zhi has explained that she did this at Mr Meng’s insistence. This change was registered on 12 November 2015. Ms Zhi states that, on reflection, she considers that it was clear that Mr Meng had “only insisted on that course of action to bolster his prospects of success in his visa application”.
7․Ms Zhi’s relationship with Mr Meng subsequently deteriorated. In September 2016, she informed Mr Meng that she no longer wanted to be in a relationship with him, and that she would raise the child alone.
8․On 17 September 2016, Ms Zhi and the child travelled to China. After contacting the Department of Immigration and Citizenship, Ms Zhi subsequently became aware that Mr Meng also travelled to China on 17 September 2016 on a separate flight. Ms Zhi states that she has not had any contact with Mr Meng since this date. She says that she is unaware of Mr Meng’s whereabouts.
9․Mr Yan subsequently reunited with Ms Zhi and they were married in February 2019. They have a second child, who was born in October 2019. Mr Yan has taken care of the child together with Ms Zhi since 2016.
10․In January 2018, a DNA paternity test was conducted by the Beijing Zhongzheng Institute of Judicial Expertise, which concluded that Mr Yan was the child’s father. In April 2022, a second DNA paternity test was conducted by DNALabs in New South Wales. This test also concluded that Mr Yan was almost certainly the child’s father.
The plaintiff’s application for alteration of the Register
11․On 16 August 2022, Ms Zhi lodged an application with the Registrar General of the Australian Capital Territory (“the Registrar General”) under s 16 of the BDMR Act, seeking:
(a)to change the child’s surname from “Meng” to “Yan”; and
(b)to include the details of Mr Yan on the Register as the child’s father.
12․On 14 November 2022, the Registrar General declined to amend the Register, on the basis that none of the criteria set out in s 16 of the BDMR Act were satisfied. In particular, the Registrar considered that:
(a)Mr Meng had not provided consent to the application (s 16(1)(a) of the BDMR Act);
(b)The Registrar General was not satisfied that Mr Meng could not be found, or did not dispute the application (s 16(1)(b)-(c) of the BDMR Act); and
(c)The Registrar General could not make a presumption that paternity equated to being a child’s parent for the purpose of the Register (s 16(1)(f) of the BDMR Act).
13․In January 2017, Ms Zhi’s solicitor located emails in relation to Mr Meng’s application for a partner visa (sponsored by Ms Zhi), which were sent to Ms Zhi’s email address and a second email address. Ms Zhi’s solicitor formed the belief that this second email address was likely to belong to Mr Meng.
14․On 4 February 2023, Ms Zhi’s solicitor sent an email to this email address which noted that Ms Zhi had been attempting to contact Mr Meng in relation to altering the child’s surname and parentage information. The email outlined Ms Zhi’s intention to make an application to the ACT Supreme Court to replace Mr Meng’s information in the Register with the information of the child’s biological father. The email requested that Mr Meng confirm whether he consented to this alteration; and provide his address for service of originating process.
15․On 8 February 2023, Mr Meng responded by email to Ms Zhi’s solicitor. He stated that he had not received any message from Ms Zhi since 17 September 2016, that she had “deleted all [contact methods] between [them]”, and that he had tried to contact her but had not received a response. Mr Meng did not response to the request to confirm whether he consented to the alteration of the child’s parentage information, nor did he provide an address for service.
16․On 12 February 2023, Ms Zhi’s solicitor replied to Mr Meng, again outlining Ms Zhi’s intention to apply to alter the Register, and seeking confirmation of his consent and an address for service. Ms Zhi’s solicitor noted that if he did not receive a response by 17 February 2023, he would assume Mr Meng consented to the application. No response was received from Mr Meng.
17․On 26 April 2023, Ms Zhi’s solicitor sent a further request to the Registrar General seeking that the child’s surname be changed to “Yan” and Mr Meng’s details on the Register be replace with those of Mr Yan. In this application, Ms Zhi’s solicitor noted that he had attempted to contact Mr Meng in relation to this application but had received no response. He submitted that, in light of Mr Meng’s failure to respond, Ms Zhi was likely to experience difficulty in personally serving any court process of Mr Yan. He requested that the Registrar alter the Register under s 16(1)(b) of the BDMR Act (which enables the Register to be amended where the other parent cannot join in the application because they cannot be found or for any other reason) or s 16(1)(c) of the BDMR Act (which enables the Registrar to amend the Register where the other parent does not dispute the correctness of the information).
18․On 8 May 2023, Access Canberra responded to this application stating that the Registrar General could not alter the Register in the manner sought without an order of the Court.
19․On 8 June 2023, Ms Zhi’s solicitor performed a check on Mr Meng’s visa status which confirmed Mr Meng did not, as at that date, hold a current Australian visa.
The present proceedings
20․On 3 July 2023, Ms Zhi filed an application in this Court seeking that an order be made pursuant to s 19 of the Parentage Act that Mr Yan be declared a parent of the child, and that orders be made under s 16 of the BDMR Act for the amendment of the Register to include Mr Yan as a parent of the child and to omit Mr Meng as a parent of the child.
21․The application originally named two defendants, being the Registrar as the first defendant and Mr Yan as the second defendant. The Registrar and Mr Yan each filed submitting appearances.
22․Both Ms Zhi and Mr Yan were present in Court for the hearing of the application on 1 September 2023. In his oral submissions, Ms Zhi’s counsel explained that Mr Yan had filed a submitting appearance because of concerns about costs. He said that he was instructed that Mr Yan wished to be legally recognised as the child’s father.
23․I indicated that, given the seriousness of the orders sought, I would be assisted by sworn evidence confirming these instructions. Mr Yan speaks Mandarin, and does not speak English. An interpreter was not available to assist Mr Yan on short notice, and obtaining such an interpreter would have occasioned significant cost to Ms Zhi and Mr Yan. However, Ms Zhi’s solicitor, who speaks Mandarin, was able to give sworn evidence that he had spoken to Mr Yan during the Court adjournment, and that in that conversation, Mr Yan expressed a strong desire to be recognised as the child’s father and for the child to have his surname. Mr Yan told Ms Zhi’s solicitor that that the child was “the odd one out” in their family as a result of having a different surname. On the basis of this evidence, I am satisfied that Mr Yan wishes to be declared a parent of the child.
24․I was also concerned about the absence of Mr Meng from the proceedings.
25․Section 46 of the Parentage Act provides that if a party to the proceeding who is claimed to be a parent of the child claims that someone else is, or may be, a parent of the child, the other person must be joined as a party to the proceeding. This provision does not apply because Mr Meng is not a person who is claimed to be a parent on the child. However, rule 210 of the Court Procedure Rules 2006 (ACT) requires that each person “whose presence as a party is necessary to enable the court to adjudicate effectively and completely on all issues in dispute in a proceeding” must be joined as a party. Section 18 of the Parentage Act further provides that the Court may adjourn proceedings to provide for an opportunity for a person whose interests may be affected to be present or represented at the hearing of the application.
26․Ms Zhi’s counsel properly accepted that, as the person presently registered as the child’s father, Mr Meng would be affected by the making of the parentage declaration sought. However, Ms Zhi’s counsel submitted that the proceedings should not be adjourned, as the proceedings had been brought to Mr Meng’s attention and he had not expressed any wish to be heard. Ms Zhi’s counsel further submitted that, in circumstances where Mr Meng was not the child’s biological father and had not exercised any parenting responsibilities since the child was 14 months old, Mr Meng would have no prospects of successfully defending the application even if he did appear.
27․A person will be a necessary party where their rights or liabilities in relation to the subject matter of the proceedings may be affected by orders made: John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1. However, it may not be necessary to join a person to proceedings where the person has been notified of the proceedings and disclaimed any wish to participate: Woollahra Municipal Council v Sahade [2012] NSWLEC 76 at [65]-[72]; approved in Ross v Lane Cove Council [2014] NSWCA 50; 46 NSWLR 34. Of course, I also have jurisdiction to hear and decide a matter, even if I consider that a person has been incorrectly omitted as a party: r 213 of the Court Procedure Rules.
28․In the present case, in light of the gravity of the rights and liabilities of Mr Meng that would be affected by orders removing him as the child’s parent; the ambiguity of Mr Meng’s initial response to Ms Zhi’s solicitor; and the minimal inconvenience which would be caused by addressing this issue, I considered that it was appropriate for Mr Meng to be joined as a party to the proceedings. Counsel for Ms Zhi did not oppose this course.
29․Accordingly, I made orders that Mr Meng be joined as the third defendant to these proceedings. I also made orders that permitting substituted service of the application upon Mr Meng – in particular, permitting service of the application by email to the email address that Mr Meng had previously responded to – and requiring that he be notified of the date of the next hearing in the matter and advised that if he did not indicate any wish to be heard by the date of the next hearing, the application would be determined in his absence.
30․On 8 September 2023, Ms Zhi’s solicitor filed an affidavit which confirmed that Mr Meng had been served a copy of the amended originating application, naming him as third defendant, by email on 4 September 2023. In this email, Mr Meng was informed of the date and time of the final hearing, and that if no response was received from him by this time, the application would be determined in his absence. The affidavit confirmed that no response had been received from Mr Meng.
31․There was no appearance by or on behalf of Mr Meng at the hearing of the matter on Friday 15 September 2023.
Legislation
32․Section 19(1) of the Parentage Act provides as follows:
19Parentage declaration
(1)On an application under section 15 or section 16, the Supreme Court may declare that a particular person is a parent of a particular child.
33․Section 15 of the Parentage Act permits an application to be made by, inter alia, a “parent of a child who claims that another person is also a parent of the child”.
34․The term “parent” is not defined in the ParentageAct. However, that term is defined in the Dictionary to the Legislation Act 2001 (ACT) to mean the child’s mother, or the child’s father, or another person who is presumed under Part 2 of the Parentage Act to be a parent of the child.
35․Section 19 of the Parentage Act is contained within Part 2 of the Act, which is entitled “establishing parentage”. Section 6 of the Parentage Act explains that the purpose of Part 2 is to “set out presumptions about parentage and provid[e] for the Supreme Court to make a parentage declaration that establishes who is a parent of a child”.
36․The Parentage Act contains the following presumptions:
(i)Sections 7 and 8 of the Parentage Act provide for presumptions in respect of children born to a person who is married, in a civil union or civil partnership, or in a domestic partnership with another person (the partner). In brief, a child born during such a relationship, or within a specified number of weeks of any separation or death in such a relationship, is presumed to be a child of the partner.
(ii)Section 9 of the Parentage Act provides that a person whose name is entered in a register as the name of a parent of a child is presumed to be a parent of the child. A register relevantly includes the Register maintained under the BDMR Act.
(iii)Section 10 of the Parentage Act contains a conclusive presumption that a person is the parent of a child if a court of the Territory, the Commonwealth, a State or another Territory makes a finding, express or implied, that the person is a parent of the child.
(iv)Section 11 of the Parentage Act contains a conclusive presumption that a person is a parent of a child if the person becomes pregnant with the child as the result of artificial insemination or analogous procedures. Where the person who becomes pregnant undergoes the procedure with the consent of their domestic partner at the time, there is also a conclusive presumption that the domestic partner is a parent of a child.
37․The presumptions under ss 8 and 9 of the Parentage Act are not conclusive presumptions. Those presumptions are rebuttable by proof on the balance of probabilities: s 12 of the Parentage Act. The presumptions in ss 10 and 11 are conclusive presumptions.
38․Section 14 of the Parentage Act provides that a child cannot have more than two parents at any time.
Consideration
It is clear that Ms Zhi is a parent of the child. She is the child’s mother and is also a person listed as a parent of the child in the Register. As she claims that Mr Yan is also a parent of the child, she is entitled to make an application under s 15 of the Parentage Act.
39․As a child cannot have more than two parents at a time, in order to make a declaration that Mr Yan is a parent of the child, I must also be satisfied that Mr Meng is not a parent of the child.
40․Mr Meng is presently listed as a parent of the child in the Register maintained under the BDMR Act. In addition, it appears that Mr Meng had been in a domestic relationship with Ms Zhi for some years at the time of the birth of the child. Accordingly, he is presumed to be a parent of the child pursuant to ss 8 and 9 of the Parentage Act. As noted above, those presumptions are not conclusive. They are rebuttable by proof on the balance of probabilities.
41․Section 19 of the Parentage Act does not provide any guidance as to what matters should be considered by the Court in determining whether the presumptions in ss 8 and 9 are rebutted. Nor have any of the decisions which have applied s 19 addressed this question. (Those decisions have concerned orders made with the agreement of all parties, and applications involving the proper construction of the presumptions relating to artificial conception procedures: see for example Hasan v Cousins [2012] ACTSC 88; Kemble & Ebner [2008] FamCA 579; and Gustz v Denniston [2019] FamCA 16.)
42․Counsel for Ms Zhi relied on both biological and social factors in support of his contention that declaration should be made that Mr Yan is a parent of the child. In particular, he submitted that the evidence demonstrates that Mr Yan is the child’s biological father, and that he “fulfils the day-to-day fatherly role” in the child’s life. He submitted that, in contrast to Mr Yan, Mr Meng is not the child’s biological father and only undertook the role of the child’s father for a period of less than 14 months. Counsel submitted that, since that time, Mr Meng had completely failed to participate in making decisions about major long-term issues in relation to the child; spend time with the child; or communicate with the child. In making this latter submission, counsel noted that these considerations are specified as being relevant to an assessment of the “best interests” of the child under s 60CC(3)(c) of the Family Law Act 1975 (Cth).
43․It may be doubted that social matters arising well after the birth of the child are relevant in considering whether a parentage declaration should be made.
44․A parentage declaration is a declaration that a person “is a child’s parent”. The word “parent” has a broad range of meanings in common usage: Family Law Council, Report on Parentage and the Family Law Act (December 2013) at [xvi]. As commonly used, the term may include genetic or biological parents (that is, persons whose sperm or eggs are used in the creation of a child) as well as a child’s psychological or social parents (that is, those who provide the child with their day to day physical and emotional needs). The latter category may include step-parents, grandparents and other relatives or persons who take on the role of caring for the child after the child’s birth.
45․However, the legal conception of the term “parent” does not usually encompass the latter category. As Anthony Dickey observes in Family Law, the “primary meaning” of the term ‘parent’ in the Family Law Act 1975 (Cth) is a ‘biological parent’, which is “essentially a matter of genetics”: Anthony Dickey, Family Law (Thompson Reuters Australia, 6th edition, 2014) at [4.20], [17.220]. This biological meaning is typically applied except where statute has intervened, such as, for example, in respect of adoption and artificial insemination procedures: see Reithmuller and Smith's Family Law (Thompson Reuters Australia, 7th edition, 2022) at [9.180]; see similarly, In the Marriage of Tobin [1999] FamCA 446; 150 FLR 185 at [42] – [43], affirming Re B and J (1996) 135 FLR 472 at 475.
46․As noted at [34] above, the term “parent” is not defined in the Parentage Act. The term is defined in the Legislation Act to mean a child’s mother or father, or a person presumed under Part 2 of the Parentage Act to be a parent of the child. However, as the presumptions under Part 2 include a conclusive presumption of parenthood where a court makes a declaration under s 19, the definition in the Interpretation Act is of limited assistance in determining the meaning of the term “parent” in the Parentage Act.
47․However, although there is no express definition of the term “parent” in the Parentage Act, a contextual reading of s 19 provides guidance as to the proper interpretation of that term. In particular, the prohibition in s 14 against recognition of more than two parents at a given time strongly suggests that the term “parent” in the Parentage Act is not concerned with the role of the person in providing care to the child at times removed from the child’s birth.
48․This interpretation is also supported by the various presumptions in the Parentage Act. Specifically, as noted above, ss 7 and 8 of the Parentage Act contains presumptions arising from marriage, civil unions and partnerships and domestic partnerships which are conditioned on the birth occurring within a specified number of weeks of the death of the parent or separation of the relationship. Those provisions reflect and expand upon the common law presumptions, in particular, those concerning the legitimacy of children born within marriage. These presumptions are clearly concerned with the circumstances existing at the time of the child’s conception, rather than with the later provision of care to the child.
49․Section 11 provides that a child conceived as a result of IVF procedures is conclusively presumed to be the child of any person who became pregnant as a result of the procedure and any domestic partner of that person who consents to the person undergoing the procedure. The Presentation Speech to the enactment of the Parentage Act explained that this provision was intended to remove discrimination against same sex couples: Presentation Speech, Parentage Bill 2003 (ACT) (Hansard, 20 November 2003, p 4377). However, it is to be noted that, even in this context, the presumption is limited to a person who was in a domestic relationship at the time that the IVF procedure was conducted.
50․In view of these provisions, the role that a person plays in respect of the child well after the child’s birth would not appear to be relevant to a consideration of whether that person is a parent within the meaning of s 19 of the Parentage Act.
51․However, it is not necessary for me to determine the full scope of s 19 in the present case. In the present case, I am satisfied that the evidence clearly establishes that Mr Yan is the child’s biological father. He wishes to be recognised as her parent. The mother’s application for Mr Yan to be recognised as the child’s mother is unopposed. Mr Meng is not the child’s biological parent, and he has not expressed any wish to be recognised as the child’s parent since soon after her birth. Further, if, contrary to the above, considerations such as the role played by a person after birth and/or the “best interests of the child” are relevant to the determination of whether a parenting declaration should be made, those matters would also support the making of a declaration in the present case.
52․In these circumstances, I am satisfied that it is appropriate to make the parentage declaration sought by Ms Zhi.
53․In his oral submissions at the hearing on 1 September 2023, Ms Zhi’s counsel accepted that if the parentage declaration was made under s 19, there would be no need for the Court to make additional orders requiring the Registrar General to amend the Register under s 16 of the BDMR Act. At the hearing of the matter today, Ms Zhi’s solicitor confirmed that if a declaration was made under s 19, it would not be strictly necessary to make the orders sought under s 16. However, he submitted that, in view of the history of the proceedings, in particular, the refusal of the Registrar to previously amend the Register, it may be prudent for these further orders to be made.
54․Section 16(1)(d) of the BDMR Act provides that where a court makes a finding that a particular person is a parent of a child, that information must be included in the Register. Accordingly, the making of the declaration that Mr Yan is a parent of the child will have the result of requiring the Register to be amended so as to remove the reference to Mr Meng as a parent of the child, and to include Mr Yan as a parent of the child.
55․I do not accept that there is any indication in the evidence that the Registrar has acted improperly, or that the Registrar will not act in accordance with s 16 of the BDMR Act upon the making of this declaration. As I concluded above, Mr Meng had provided an opaque response to an email sent by Ms Zhi’s solicitor. In these circumstances, the Registrar was correct to conclude that, on the evidence that was then available, there was insufficient evidence to find that Mr Meng consented to the application, or that he was unable to be found.
56․In these circumstances, I do not consider it necessary for additional orders to be made under s 16 compelling the Registrar to include these matters in the Register: see similarly Hasan at [12]; Kemble v Ebner at [5]; Martinez v Rawlinson [2017] FCCA 3103 at [64].
57․Ms Zhi’s original application sought an order for costs. That order was not sought in the Amended Application filed on 4 September 2023, no doubt in recognition that it would be inappropriate to make a costs order against any of the named defendants, none of whom opposed to the declaration sought. At the hearing today, Ms Zhi’s instructing solicitor confirmed that an order for costs was not pressed.
Orders
58․For the above reasons, I order pursuant to s 19 of the Parentage Act 2004 (ACT) that the second defendant, Mr Xiaoyun Yan, be declared a parent of the child, [redacted], born [redacted].
| I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: A McCook Date: 18 September 2023 |
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