Baldwin and Neilson

[2016] FCCA 199

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALDWIN & NEILSON [2016] FCCA 199

Catchwords:
FAMILY LAW – Children – parentage – declaration of parentage – one child born on (omitted) 2010 – where parentage testing procedure carried out.

Legislation:

Child Support (Assessment) Act 1989 (Cth), s.106A

Family Law Act 1975 (Cth), s.69VA

Applicant: MS BALDWIN

Respondent: MR NEILSON

File Number: SYC 1720 of 2015

Judgment of: Judge Scarlett

Hearing date: 3 February 2016

Date of Last Submission: 3 February 2016

Delivered at: Sydney

Delivered on: 3 February 2016

REPRESENTATION

Solicitor for the Applicant: Ms Cole

Solicitors for the Applicant: Legal Aid NSW

Respondent: No appearance

ORDERS

THE COURT DECLARES in accordance with the provisions of section 69VA of the Family Law Act 1975 that the Respondent MR NEILSON is the father of the child X who was born on (omitted) 2010.

1. All other Applications are withdrawn and dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1720 of 2015

MS BALDWIN

Applicant

And

MR NEILSON

Respondent

REASONS FOR JUDGMENT

Application

1. This is in an Application in which the Applicant initially sought declarations that:

   a)the Respondent is the father of her child X, who was born on (omitted) 2010, under s.69VA of the Family Law Act 1975 (Cth); and

   b)the Respondent should be assessed in relation to the costs of the child under s.106A of the Child Support (Assessment) Act 1989 (Cth).

2. As it turned out, the Applicant decided not to press her Application for a declaration under the Child Support (Assessment) Act.

Procedural History

1. The Applicant commenced proceedings on 13 March 2015 by filing an Application and a supporting affidavit.

2. The application was returnable on 12 May 2015, on which date Orders were made for substituted service on the Respondent. The Application was adjourned to 14 July 2015.

3. The Respondent did not attend Court on 14 July, although the Applicant filed in Court an affidavit of service dated 21 May 2015.

4. The Application was adjourned to 13 October 2015 for mention and possible undefended hearing if the Respondent did not attend Court on the next occasion.

5. The Respondent did in fact attend Court on 13 October and filed a Notice of Address for Service. He did not file any other documents.

6. The Respondent did not attend Court on the next occasion, being 8 December 2015, nor has he appeared since. He did, however, undertake a parentage testing procedure by providing the appropriate sample.

7. The testing laboratory, (omitted), has provided a Parentage Testing Procedure Report dated 21 December 2015.

8. The Applicant attended Court on 3 February 2016, accompanied by her solicitor. There was no appearance by or on behalf of the Respondent, although the Applicant told the Court that she had recently spoken to him and she was aware that he knew of the proceedings. As it appears that the Respondent has chosen not to attend Court, a decision was made to proceed with the hearing generally in accordance with Rule 13.03A.

Evidence and Submission

1. The Applicant relied on her affidavit of 10 March 2015 and the Parentage Testing Procedure Report dated 21 December 2015. She also gave oral evidence, in which she confirmed that she had instructed her solicitor, Ms Cole, not to press the application for a declaration under s.106A of the Child Support (Assessment) Act 1989. Ms Cole conformed to the Court that she had given advice to the Applicant about the legal effect of her client’s decision.

2. The Parentage Testing Procedure Report tendered in evidence shows that the results of the testing procedures do not exclude the Respondent from identification as the father of the child. Indeed, the writer of the Report goes on to say that:

   Mr NEILSON is 752,099,199 times more likely to produce a child with the required alleles than a man drawn randomly from the Australian Caucasian population. This equates to a Relative Chance of Paternity of 99.9999999%. [1]

   [1] Parentage Testing Procedure Report 21.12.2015 page 2 paragraph 7

3. It goes without saying that this is most persuasive evidence. I propose to grant the Application for a declaration that the Respondent is the father of the child.

4. I note that the Applicant no longer wishes to press her application for a declaration under the Child Support (Assessment) Act. That is entirely a matter for her. I am satisfied that she has received advice from her solicitor, Ms Cole, who is well known to the Court as an experienced lawyer with an extensive knowledge of this jurisdiction.

5. I will order accordingly.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date: 5 February 2016