Secretary, Commonwealth Attorney GENERAL'S Department and Bashir and Anor

[2020] FCCA 2041

FEDERAL CIRCUIT COURT OF AUSTRALIA

SECRETARY, COMMONWEALTH ATTORNEY GENERAL'S DEPARTMENT & BASHIR & ANOR [2020] FCCA 2041

Catchwords:
FAMILY LAW – Parenting – where applicant seeks extension of time to apply for a declaration of parentage for the child – where applicant seeks declaration of parentage – where second respondent opposes application – application dismissed.

FAMILY LAW – Injunction – where second respondent seeks injunctive relief against the first respondent’s use of information obtained throughout proceedings pursuant to s 121 of the Family Law Act 1975 (Cth) – application dismissed.

Legislation:

Family Law Act 1975 (Cth), ss.111B(1), 121

Child Support (Assessment) Act 1989 (Cth), ss.25, 29A, 29B, 106A, 106A(2)

Child Support (Registration and Collection) Act 1988 (Cth), s.4

Child Support (Assessment) Regulations 1989 (Cth), s.23

Federal Circuit Court Rules 2001 (Cth), r.25A.06

Cases cited:

Gibb & Gibb (1978) FLC 90-405
Hopkins v Hopkins [1951] P 116
LK and Director-General, Department of Community Services [2009] HCA 9

P v Secretary for Justice [2007] 1 NZLR 40

R v Barnet London Borough Council; Ex parte Shah [1983] 2 AC 309

Re Vassi Ex parte Leung (1986) 9 FR 518
Sitwell & Sitwell [2014] FamCAFC 5

Applicant: SECRETARY, COMMONWEALTH ATTORNEY GENERAL'S DEPARTMENT

First Respondent: MS BASHIR

Second Respondent: MR NORMAN

File Number: SYC 2122 of 2019

Judgment of: Judge Boyle

Hearing date: 21 November 2019

Date of Last Submission: 21 November 2019

Delivered at: Sydney

Delivered on: 29 July 2020

REPRESENTATION

Solicitors for the Applicant: Mr Gao of Australian Government Solicitor

Solicitors for the First Respondent: Mr Gao of Australian Government Solicitor

Solicitors for the Second Respondent: Mr Burreket of Broun Abrahams Burreket

ORDERS

1. The Initiating Application filed by the Applicant on 3 April 2019 is dismissed.

2. That Orders made 21 November 2019 be discharged.

IT IS NOTED that publication of this judgment under the pseudonym Secretary, Commonwealth Attorney-General’s Department & Bashir & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2122 of 2019

SECRETARY, COMMONWEALTH ATTORNEY GENERAL'S DEPARTMENT

Applicant

And

MS BASHIR

First Respondent

And

MR NORMAN

Second Respondent

REASONS FOR JUDGMENT

1. This is an application by the Australian Government Solicitor for an extension of time to apply for a declaration of parentage of the child, X, born in 2013. Should the Court grant the extension, parentage testing is sought. 

2. The first respondent is the mother of the child. She supports the application, and has provided a Power of Attorney to the applicant to act on her behalf.

3. The second respondent opposes the Orders sought by the applicant. He seeks injunctive relief about the first respondent’s use of information obtained through these proceedings. 

Background

1. The first respondent was born in Country H in 1982, and is currently 38 years old. She is the holder of a green card entitling her to reside in the United States (USA) from 2013 until 2023.     

2. In 2012, the respondents met in City J, in the USA. At the time, the first respondent was engaged to another person.

3. 2012, the respondents engaged in unprotected sexual intercourse. The following morning, the first respondent took contraceptive pills, commonly known as the morning after pill.

4. In 2012, the first respondent married her now ex-husband. Later that month, she discovered she was pregnant.

5. X was born in 2013. The first respondent’s ex-husband appears on the child’s birth certificate as the father.

6. In November 2013, the first respondent notified the second respondent that he was the father of the child. The second respondent has maintained throughout these proceedings that the likelihood of pregnancy occurring in the circumstances of this matter is remote.

7. On 21 October 2016, the first respondent and her ex-husband entered into an agreement on their divorce. The judgment in the divorce sets out the following:

   The parties mutually agree Mr C is not the biological father of X, the wife’s son born in 2013. Mr C represents and agrees that he has obtained two DNA tests comparing X’s genetic markers to his own and both have conclusively confirmed his non-parentage. … Ms Bashir represents and agrees Mr C is not the father.”  The divorce was finalised on 24 January 2017.

8. In December 2016, the second respondent complains that the first respondent sought his former wife’s details from his brother.

9. On 11 January 2017, the first respondent completed an Application for Child Support Assessment.

10. On 20 November 2017, the Department of Human Services (DHS) received a Child Support Enforcement request from the Child Support Enforcement Division of the City J Department of Revenue dated 11 August 2017. That agency requested DHS to establish the parentage of X, and obtain and enforce the Orders for current and retrospective child support on behalf of the first respondent.

11. On 26 April 2018, DHS refused the application on the basis there was no evidence to indicate the second respondent is the father of the child.

12. On 4 May 2018, the Secretary of the Commonwealth Attorney General’s Department (“the Secretary”) received a request from DHS to establish parentage of the child. The applicant sought legal advice.

13. On 13 June 2018, the first respondent was notified that her application for child support was unsuccessful.

14. On 15 March 2019, the first respondent executed a Power of Attorney appointing the Secretary as her legal representative for the purposes of making an application for a declaration under section 106A(2) of the Child Support (Assessment) Act 1989 (Cth) (“CSAA Act”).

15. On 4 April 2019, the applicant commenced these proceedings. The application was commenced approximately seven months outside the prescribed statutory time limit in accordance with Rule 25A.06 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

Issues

1. The parties agree that the following are the issues for determination.

   a)Whether the Court has jurisdiction to deal with the application;

   b)If so, whether the Court should grant an extension of time for the making of the application for a declaration under s 106A(2) of the CSAA Act;

   c)If so, whether the Court should make Orders for parentage testing;

   d)Whether an Order made restraining the first respondent from disclosing information obtained in these proceedings other than in specified circumstances should continue.

Documents relied on

1. The following documents were relied upon at trial.

2. For the applicant:

   a)Initiating Application, filed 3 April 2019;

   b)Affidavit of Hongyi Gao, affirmed 3 April 2019; and

   c)Affidavit of Cameron O’Sullivan, affirmed 14 November 2019.

3. For the first respondent:

   a)Affidavit, affirmed 25 July 2019.

4. For the second respondent:

   a)Response to Initiating Application, filed 5 September 2019.

5. I have also had regard to the applicant and second respondent’s respective tender bundles.

The law in relation to the issue of jurisdiction

1. Section 25 of the CSAA provides that:

   A parent (the applicant) of a child may apply to the Registrar under this section for administrative assessment of child support for the child if:

   (a)  the applicant applies for both parents to be assessed in respect of the costs of the child; and

   (b)  the applicant is not living with the other parent as his or her partner on a genuine domestic basis (whether or not legally married to the other parent); and

   (c)  the applicant complies with any applicable requirements of section 26 (dealing with joint care situations) and section 26A (dealing with children cared for under child welfare laws); and

(d)  if either parent of the child is not a resident of Australia on the day on which the application is made-the application meets the requirements of sections 29A and 29B.

1. Section 29A of the CSAA provides:

   (1)    This section applies if:

   (a) an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child; and

   (b)  the parent is not a resident of Australia on the day on which the application is made.

   (2)  The Registrar must determine whether child support is reasonably likely to be payable by the parent.

(3)  If the Registrar determines that child support is reasonably likely to be payable by the parent, the application is taken to have been properly made only if:

(a) subsection 24(2) does not apply in relation to the child (payee of childsupport resident in reciprocating jurisdiction); and

(b) the parent is a resident of a reciprocating jurisdiction on the day on which the application is made.

Note: If an application is not properly made, the Registrar must refuse the application under section 30.

1. Section 29B of the CSAA provides:

   (1) If a person applying under section 25 or 25A is a resident of a reciprocating jurisdiction, the application must be made:

   (a) by the person and given to the Registrar by an overseas authority of the reciprocating jurisdiction; or

   (b) if an overseas authority of the reciprocating jurisdiction believes that childsupport is reasonably likely to be payable to the person in respect of a child-by the overseas authority on behalf of the person; or

   (c) if the person believes that child support is reasonably likely to be payable by him or her to another person in respect of a child-directly to the Registrar by the person.

   (2)  If an application is made by an overseas authority of a reciprocating jurisdiction on behalf of a person, the regulations may prescribe actions the overseas authority may take for the person.

   (3)  If an application is made by a person and given to the Registrar by an overseas authority of a reciprocating jurisdiction, the regulations may prescribe actions the overseas authority may take for the person with the person's consent.

2. The first respondent is a not a resident of Australia. A person who is not a resident of Australia may apply for an administrative assessment of child support if the registrar determines that child support is reasonably likely to be payable by the parent, and the parent is a resident of a reciprocating jurisdiction on the date the application is made. Here, the application was sent to the registrar by an overseas authority for a reciprocating jurisdiction on behalf of the first respondent in compliance with section 29B of the CSAA.

3. Section 29A of the CSAA requires that the parent is “a resident in a reciprocating jurisdiction” on the date the application was made. The application was affirmed by the first respondent on 11 January 2017 at the Australian Consulate in City K. The application was received by the CSA in Australia on 20 November 2017, which is the relevant date.[1]

   [1]Child Support (Assessment) Regulations 1989 (Cth), s 23.

4. The USA is a reciprocating jurisdiction. Issue is taken with respect to whether the first respondent was a resident of the USA on the date that the application is made. The onus is on the applicant to establish that the requirements for jurisdiction are met.

5. Section 4 of the Child Support (Registration and Collection) Act 1988 (Cth) defines a resident of a reciprocating jurisdiction as a person who is an habitual resident in the reciprocating jurisdiction.[2] There is no definition of the expression “resident” in the CSAA, or the Family Law Act 1975 (Cth) (“the Act”).

   [2] Child Support (Registration and Collection) Act 1988 (Cth), s 4.

6. The second respondent submits that “resident” means ordinarily resident. The Act refers to ordinarily resident as including habitual residence. Resident may simply mean that, without the expansion of the adjectives habitual or ordinarily. I propose considering the matter with the three potential meanings of “resident,” being habitually resident, ordinarily resident and resident. Given the lack of definition within the CSAA, it is prudent for there to be a determination on each option.

7. The applicant relies on the following facts to establish that the first respondent is resident in the USA:

   a)The first respondent consistently uses a City J address on all documents. In her Affidavit of 25 July 2019, she states, “I reside City L for the last 6 years;” [3]

   b)X was born in the USA;

   c)The first respondent holds a green card which is valid from 2013 to 2023, entitling her to live and work in the USA;[4] and

   d)The first respondent had an Annual Return to Report Transactions with Foreign Trusts and Receipt of Foreign Gifts completed by an accountant on her behalf for Inland Revenue in the USA. The form is dated 15 December 2017, but referrable to the 2016 tax year.

   [3] Affidavit of Ms Bashir, sworn 25 July 2019, at paragraph 15.

   [4] Affidavit of Mr Cameron O’Sullivan, affirmed 14 November 2014, Annexure “CO-1”.

8. The second respondent tendered copies of the first respondent’s passport. The first respondent has a Country E residence document in her passport. Four residence documents have been issued which cover periods:

   a)18 September 2013 to 17 September 2016;

   b)26 March 2015 to 25 March 2017;

   c)8 August 2016 to 7 August 2018; and

   d)30 May 2018 to 29 May 2020. 

9. The first Country E document refers to her sponsor as “Mr C”. On that document, her profession is “house wife/not allowed to work”. The other permits all refer to her profession as “sales”.  The sponsor listed is “F Group”, save for the last permit which refers to “G Group”.

10. The first two permits from 2013 to 2016, and 2015 to 2017, are marked “cancelled”. The permit covering the relevant period from 8 August 2016 to 7 August 2018 is not marked. Printed on the permit is “Residence Permit becomes invalid if bearer resides outside of the Country E for more than 6 months”.  This is not fully visible on each of the permits in the passport, as it appears photocopying has cut some parts of the document. It appears from the face of the document that it was valid for the duration of the period specified on the permit.  

11. The second respondent submits that an examination of the first respondent’s passport discloses her absence from the USA between 16 May 2016 and 14 September 2017, for 199 days out of 386 days. The applicant did not concede the precise number, given the difficulties in interpreting the passport stamps. There is an entry stamp to the  Country E on 17 June 2017, and to the USA on 14 September 2017. She re-entered the USA on 29 November 2017. It is unclear when she left the country prior to that entry.

12. It appears that the first respondent is entitled to live and work in both the USA and the  Country E. She holds a Country H passport, although there is no suggestion that she resides in that country.

13. The expression “habitual residence” has been the subject of much judicial consideration. It is the expression used in the Convention on the Civil Aspects of International Child Abduction, and through section 111B(1) of the Act and the Regulations which that section supports.

14. In determining the meaning of the expression, the High Court in LK v Director-General, Department of Community Services [2009] HCA 9 (“LK”) looked to the “ordinary meaning of the composite expression. The search must be for where a person resides and whether residence at that place can be described as habitual.” [5]

    [5] LK v Director-General, Department of Community Services [2009] HCA 9, at paragraph 22.

15. At paragraph 23:

    … [it] permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual.  Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person’s connections with a particular place of residence.[6]

    [6] Above n 6, at paragraph 23.

16. Further, LK found that:

    …it is unlikely, although it is not necessary to exclude the possibility, that a person will be found to be habitually resident in more than one place at the one time. But even if place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person's place of habitual residence. So, for example, a person may abandon a place as the place of that person's habitual residence without at once becoming habitually resident in some other place; a person may lead such a nomadic life as not to have a place of habitual residence.[7]

    [7] Above n 6, at paragraph 25.

17. Determining habitual residence requires “a broad factual enquiry.”  This should:

    …take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in past and currently), the degree of assimilation into the state including living and schooling arrangements, and cultural, social and economic integration.[8]

    [8] P v Secretary for Justice [2007] 1 NZLR 40, at paragraphs 61 - 62.

18. The enquiry is directed to the connection between the individual and a particular state. A consideration of the facts relied on by the applicant to demonstrate habitual residence, highlights the problem in this case.  Those matters which can be gleaned from the first respondent’s affidavit are so scant as to make any broad factual enquiry impossible. 

19. The applicant provides no evidence with respect to the purpose and duration of the first respondent’s travel to the Country E. It is not referred to in the first respondent’s Affidavit, nor is there evidence of any matters supporting a settled connection to the USA, other than the bare assertion that is where she lives. The applicant could have provided evidence, for example, of the first respondent’s social connections to the USA, including through friends and family, X’s education and activities, her work, or community involvement.

20. The first respondent provides no explanation of the disclosure to Inland Revenue of moneys received from a non-resident alien or foreign estate, nor the basis upon which the funds were paid to her. It is for the year preceding the relevant year. There is no reference to what income was earned, or from where, to assist the enquiry into whether she was resident in the USA on 20 November 2017.

21. There is no reference to any employment undertaken by the first respondent in any place, although she is entitled to work in both the USA and Country E. The amount of travel undertaken, as evidenced by her passport, suggests that she earns an income, or otherwise receives financial support.

22. Those are the sorts of matters that make up the “wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual”. Accordingly I do not find that the first respondent was habitually resident in the USA on 20 November 2017.

23. The terms “resident” and “ordinarily resident” have been found to have the same meaning for the purposes of revenue cases in UK authorities.[9] The House of Lords has described ordinarily resident as meaning “the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration”.

    [9] Hopkins v Hopkins [1951] P 116, at paragraphs 120 - 121.

24. In R v Barnet London Borough Council; Ex parte Shah [1983] 2 AC 309, the expression “refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.”[10]

    [10] R v Barnet London Borough Council; Ex parte Shah [1983] 2 AC 309, at paragraph 343.

1. “Ordinarily” on an examination of the case law, extends the meaning of the word resident, so that it permits absences for periods of time, and is an alternative to being personally present.[11] The paucity of evidence of any connection of the first respondent to the USA, gives rise to difficulties with respect to a finding that she is ordinarily resident.   Whilst she may be voluntarily in the USA, without further information I cannot conclude that she is there for settled purposes. Evidence that would have assisted a finding of habitual residence would also have assisted a finding of ordinarily resident. On the basis of the amount of time spent in the Country E without explanation or detail, a bare assertion that she lives in the USA is insufficient to find that she was ordinarily resident in the USA on 20 November 2017.    

   [11] Re Vassi Ex parte Leung (1986) 9 FR 518, at paragraphs 524 - 525.

2. If “resident in the reciprocating jurisdiction” means being present in the jurisdiction on the relevant day, the application would fail. The applicant would need to provide positive evidence that the first respondent was in the USA on 20 November 2017.[12] The second respondent submits that there are stamps showing entry to the USA on 14 September 2017 and 29 November 2017.[13] The stamps in the passport are not clear enough to determine when the first respondent exited the USA between those two dates. Clearly, the applicant could have provided evidence clarifying these matters.    

   [12] Child Support (Assessment) Act 1989 (Cth), s 29A(3)(b).

   [13] Tender Bundle to Outline of Case Document of the Second Respondent, at bundle tag 6(f).

3. I find that the challenge to the Court’s jurisdiction on the basis that the first respondent is not a resident of a reciprocating jurisdiction, being the USA, is made out. The onus is on the applicant to establish the matters necessary to ground jurisdiction, and they have failed to do so. The application is dismissed.

4. It is unnecessary for consideration of the other Orders sought, given the finding with respect to jurisdiction.

Orders sought by the second respondent

1. The second respondent sought and was granted an interim injunction restraining the first respondent from disclosing to any person any information obtained during the course of these proceedings pursuant to section 121 of the Act. He referred to her seeking information about him on social media, that she knows the names of his adult children, and that she has viewed the LinkedIn account of one of his children.[14]

   [14] Affidavit of Hongyi Gao, filed 3 April 2019, Annexure HG-01.

2. Section 121 of the Act provides:

   (1)  A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:

   (a) a party to the proceedings;

   (b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or

   (c) a witness in the proceedings;

   commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.

3. The evidence about contact from the first respondent to the second respondent’s family is limited. There is one WhatsApp message referred to which was apparently sent in May 2019 stating, “I will find a way to get back at you for this if it’s positive. I am going to make sure of that.” This has been interpreted by the second respondent to mean reputational harm. The other complaint is contact between the first respondent and the second respondent’s brother in 2016, when apparently contact details for his former wife were sought. 

4. In Sitwell & Sitwell [2014] FamCAFC 5,[15] the wife applied for Orders restraining the husband from publishing information pursuant to section 121 of the Act in relation to property settlement proceedings in which they were involved. Their Honours refused to grant the injunction on the basis that the wife failed to demonstrate the existence of special circumstances that would have justified a departure from the “underlying principle” that an injunction merely restating the effect of section 121 of the Act is unnecessary and undesirable.[16]

   [15] Sitwell & Sitwell [2014] FamCAFC 5.

   [16] Gibb & Gibb (1978) FLC 90-405 at paragraphs 77,081-2.

5. A special circumstances may exist where, for example, the publication is likely to impact upon the best interests of the child, or contain scandalous disparagement of Courts or judicial authority likely to impair their authority, or comprise serious and baseless attacks on the integrity or impartiality of Courts.[17] The second respondent has not demonstrated a special circumstance to warrant the injunction being continued. The circumstances in this matter do not warrant a continuation of the Interim Order. The Order made on 21 November 2019 is discharged.

   [17] Above n 12, at paragraph 65.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Boyle

Associate: 

Date: 29 July 2020