Barrand & Parlow
[2024] FedCFamC2F 333
•22 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Barrand & Parlow [2024] FedCFamC2F 333
File number(s): MLC 3988 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 22 February 2024 Catchwords: FAMILY LAW – mother seek declaration of parentage – whether to proceed in the absence of a party – evidence of service vague and opaque – mother was assessed for child support soon after birth – child was removed from mother’s care and child support ceased – mother’s application for child support denied when child returned to mother – mother has not been in contact with father since child was born – father and child have been in contact previously – child no longer wants contact with the father – service dispensed with – child – service by post may not be appropriate in age of electronic communication and social media – whether respondent’s demographic would have ever written or received a letter – utility of affidavits of service to unknown last known address – telephone enquiry of respondent on day of hearing ascertained current email address – always back self-interest, at least you know its trying Legislation: Child Support (Assessment) Act 1989 section 29(2)(h) and section 106A(5)(a)
EvidenceAct 1995
Family Law Act 1975 (Cth) section 69VA and section 69ZT
Cases cited: Riggs & Camm [2023] FedCFamC2F 1266 Division: Division 2 Family Law Number of paragraphs: 25 Date of last submission/s: 22 February 2024 Date of hearing: 22 February 2024 Place: Melbourne Solicitor for the Applicant: Victoria Legal Aid The Respondent No Appearance ORDERS
MLC 3988 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BARRAND
Applicant
AND: MR PARLOW
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
22 FEBRUARY 2024
THE COURT DECLARES THAT:
1.Pursuant to section 69VA of the Family Law Act 1975 (Cth) it is declared that MR PARLOW (“the Father”) is the FATHER of the child X born in 2008.
THE COURT ORDERS THAT:
2.Pursuant to s.106A(5)(a) of the Child Support (Assessment) Act 1989, there be a declaration that MS BARRAND (“the Mother”) is entitled to administrative assessment of child support for the child X because MR PARLOW is a parent of the child.
3.The service on the Father of the Mother’s application and evidence be and is dispensed with.
4.The address for service of the Father will be […]
5.The Mother do all acts and things to bring a copy of these orders and reasons to the attention of the Father via the assistance of her Solicitor (Victoria Legal Aid) to the email of the Father pursuant to Order 3 herein and the previous email address that was on file.
AND THE COURT NOTES THAT:
A.Pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the Court may vary or set aside a judgment or order made in the absence of a party.
B.The Father was called outside court this morning at 10.20am and there being no response to the call
C.The Solicitor for the Mother rang the Father this day and notified him of the court proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations and passages of authorities, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
Introduction
In the matter of Barrand & Parlow, I was asked to make, on a final basis, a declaration pursuant to section 69VA of the Family Law Act 1975 (Cth), here and after called "the Act", in regard to the parentage of X, born in 2008, and a declaration pursuant to section 106A(5)(a) of the Child Support (Assessment) Act 1989, to the same effect. The Applicant is the mother of X, and she alleges that the Respondent is the father.
Family Law Act 1975 (Cth)
Section 69VA Declarations of parentage
As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.
Child Support (Assessment) Act 1989
(5) The court may grant the declaration if the court is satisfied that:
(a)if the reason referred to in paragraph (1)(b) was the only reason for the Registrar refusing to accept the application--the person should be assessed in respect of the costs of the child because the person is a parent of the child; or
Whether to proceed in the absence of the Respondent
Findings are made on the balance of probabilities apply section
The first issue is whether it is appropriate to proceed in the absence of the Respondent. The Respondent has not appeared this day, filed any material, or participated in the proceedings.
Respondent’s address unknown
The standard practice appears to be that, where the address of the Respondent is not known, Services Australia (“Child Support”) is requested to send a letter to the last known address, or the last known address known to Child Support, of the Respondent. In the age of social media, mobile phones, and email addresses, I am not satisfied that what once was the conventional way of communicating with someone, writing them a letter, is valid. I am unconvinced that someone of the Respondent's generation and circumstances in life have ever written a letter or received one. I am satisfied that the Respondent will have received many mobile phone text messages, mobile phone calls, emails and social media posts, and that is likely to be his ordinary way of communicating. I refer to and adopt my observations in the matter of Riggs & Camm [2023] FedCFamC2F 1266, an anonymised decision of a not dissimilar matter:
[17] … In this day and age, where the volume of mail by post is but a fraction of what it once was, few people of the Respondent’s demographic correspond by mail. I would be surprised if the Respondent has ever written a letter to anyone or received one. …
The long and the short of it is, that though I have the burden and responsibility of determining whether I am satisfied on the balance of probabilities that the Respondent is X's father, I am not allowed to have what is known to Court Services Australia; that is, the last known address of the Respondent. Nor is the Applicant, nor is the Applicant’s lawyers. There is no basis whatsoever for suggesting that my knowledge of that address could in any way cause any harm to the Respondent.
The circumstances of the concept of the last known address for someone such as the Respondent are quite poignant, as I am satisfied on the evidence that the Respondent has relatively recently been in jail. The concept of "last known address" when you are someone who is in and out of jail is an interesting one. I simply have no idea whether that letter was sent to the Respondent in jail. If so, further questions arise regarding:
·which jail;
·whether he was still in gaol when it was sent to him, or if it was sent to some other address;
·whether the Respondent has provided an address for the purposes of obtaining social security services or some other service, but may or may not live there; and
·the place where the address is given may or may not even have a mailbox, let alone anyone checking the mail regularly, let alone the Respondent.
In this case, I am satisfied that the court orders directing Child Support to write to the Respondent at the address last known to that service have all been complied with, as has the direction to send an email - or emails - to the Respondent at an address that was said to be his. I will refer to that as the email address.
Procedural fairness to the Respondent
Upon pressing the solicitor for the Applicant at the commencement of the hearing on the point of procedural fairness to the Respondent, it became apparent that I did not have satisfactory evidence that, at the time of the emails to the Respondent, that was in fact his operative email address. The difficulties in maintaining a workable email address when you're in jail don't need to be described, but it cannot be presumed that that email address is accessible either in jail or out of jail, when that was the email address once used by the Respondent.
Fortunately, the Applicant was present in court and was able to provide sworn evidence to me of a number of helpful matters regarding procedural fairness. It transpired that in 2023, the Respondent had apparently, out of the blue, made connection with X via social media. The Applicant was sworn in. She deposed that she had attempted to look at that social media, but it is blocked to her. It is not blocked to X. I accepted that evidence.
Respondents mobile number
In addition, the Applicant had been informed by X that she was aware - that is, X was aware - of the Respondent's mobile phone number, and that she and the Respondent had frequently been speaking to one another on that mobile phone number. I inquired of the Applicant whether there was any reason why she could not ask X for the Respondent's mobile phone number for the purpose of providing it to me or to her solicitor. The Applicant told me that she he had no difficulty in asking X for the number, and after a short adjournment, I was satisfied that the Applicant obtained the number of the Respondent from X, and that the Applicant's solicitor rang the Respondent at my request. I am satisfied that the account of the conversation between the Applicant’s solicitor and the Respondent is, in substance, correct.
Wrong email address
The solicitor for the Applicant rang the number purporting to be, or understood to be, the Respondent's number. He answered the phone. He acknowledged that he was the Respondent, and he was able to assist the Applicant’s solicitor. Firstly, by telling her that the email address referred to in the service documents, and that apparently once upon a time was his email address, was no longer his email address. Hence, on one view, the documents being emailed to the Respondent were not getting there. On the other hand, there is no evidence of any bounce back of any emails sent to him. The Respondent provided to the solicitor another email address, his current email address, and the solicitor inquired whether he was prepared to tell her, for the purpose of telling me, what his (residential) address was.
Once the substance of the conversation moved to the circumstance that the court case concerned child support this day, the Respondent's position changed. He terminated the call. But, before he did so, he asked that the solicitor to ‘strike my phone number and my email from your records’.
Based on all of that, I am satisfied that the Respondent has been provided with the opportunity to participate in the court case if he wished to.
Child support
Certainly, a telephone call at 12.30pm for a court case happening that day is very short notice. However, the other circumstance of this case which makes me satisfied that it is appropriate to proceed in the absence of the Respondent, is that from soon after X's birth up until 2013, the Respondent paid “child support”. From the nature of the child support records, it's apparent - and I infer - that the Respondent did not actually pay child support, but the minimum child support payment was deducted from his social security payments. To the recipient, that might feel like it's paid, but to the payer, it is simply money being removed from his social security account. Over many years, the Respondent had money removed from his social security account, but minimal amounts.
Why the Application is made now
X returned to the care of the Applicant in 2022 having been removed from her care in mid‑2013. Child support soon after birth accepted the Applicants application for Child Support. The Applicant would have preferred, I'm satisfied, no contact at all with the Respondent, but being dependent on social security, was pressed by that authority to do all she could to obtain appropriate child support from the Respondent. These proceedings are the Applicant doing all she can to obtain child support.
The Applicant made another application for child support (when the child returned to her care), and Child Support then determined that they would not register the Respondent as the father. The provisions of section 29(2)(h) of the ChildSupport (Assessment)Act1989 are, in effect, an elaboration of a common law provision about parentage arising from cohabitation. Section 29 provides:
Section 29 How decision is to be made
(2) The Registrar is to be satisfied that a person is a parent of a child only if the Registrar is satisfied:
…
(h) that the person is a man and:
(i) the child was born to a woman who cohabited with the man at any time during the period beginning 44 weeks and ending 20 weeks before the birth; and
(ii) no marriage between the man and the woman subsisted during any part of that period of cohabitation
…
On the facts of the relationship between the Applicant and the Respondent, as asserted by the Applicant, it is apparent that they never did cohabit or live in a de facto relationship. Hence, the application for child support had to be refused by Child Support as the facts were. As a result, the Applicant had to go to all the trouble to make this application, turn up to court over and over and over, whilst efforts were made to contact the Respondent.
I am satisfied in these proceedings that the observations of the former Prime Minister, Mr Keating, apply. That is, ‘always follow self-interest, at least you know it's trying’. There is absolutely no financial incentive for the Respondent to participate in these proceedings because the end result is that he will either have to pay child support or have minimal child support deducted from his social security benefit as it was in the past.
Respondent’s representations
It also appears, and I am satisfied of this, that the Respondent has been in regular contact with X and acknowledges to X that she is his daughter. The other aspect is that for the whole of X's life, the Applicant has made clear to her that the Respondent is her father, and X was always interested in who her father was. And I should say, I accept the Applicant's evidence that there is no other physical possibility for the conception of X except that the Respondent is the father.
I also place some weight upon the circumstance that in fairly elongated, elaborate and continuing child protection proceedings in the Children's Court, the child protection practitioner involved, employed by the Department of Families, Fairness and Housing, is of the opinion that the Respondent believes that he is the father and that he has, by his participation in the proceedings, not denied he is the father. It can be even taken as high, as an inference can be drawn that, as his participation is in the proceedings is an acknowledgement that he is the father. It would be of great assistance to me if such communications could demonstrate the substance of what was actually said by the Respondent in those proceedings, rather than the hearsay account of someone's opinion.
Nonetheless, because of the provisions of section 69ZT and 69ZM and these 69VM all falling within Part VII in determining the parentage of X, I can - because of the exclusion of parts of Evidence Act 1995 (Cth)- take into account hearsay and opinion and admissions, and I infer implied admissions, where without those provisions I otherwise would not be able to.
Section 69ZT Rules of evidence not to apply unless court decides
(1)These provisions of the Evidence Act 1995 do not apply to child-related proceedings:
(a)Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections:
26 Court’s control over questioning of witnesses
30 Interpreters permitted
36 Person may be examined without subpoena
41 Improper questions
(b)Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c)Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
The following parts apply:
3.1 Relevance: ss 55 – 58
3.9 Identification evidence: ss 113 – 116
3.10 Privileges: ss 117 – 134
3.11 Discretionary and mandatory exclusions: 135 – 139
4.1 Standard of proof: ss 140, 142
(2)The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3)Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a)the court is satisfied that the circumstances are exceptional; and
(b)the court has taken into account (in addition to any other matters the court thinks relevant):
(i)the importance of the evidence in the proceedings; and
(ii)the nature of the subject matter of the proceedings; and
(iii) the probative value of the evidence; and
(iv)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
(4)If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.
(5) Subsection (1) does not revive the operation of:
(a) a rule of common law; or
(b) a law of a State or a Territory;
that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.
I also think it's important that the Respondent should know that it is not the Applicant's first position or choice to press him for child support. She does so, because that is the requirement of social security, and she is dependent on social security. Hence, there could not be or should not be any suggestion on the Respondent's part that there is any mala fides or deceit on the Applicant's part or on X's that ends up in these proceedings. X did not ask for these proceedings.
Whether to make the orders sought
I am comfortably satisfied that the Respondent has had the opportunity to participate in the proceedings. I am comfortably satisfied that the Respondent is the Father of X and that the Applicant is entitled to Child Support as assessed.
Hence, I will make the orders sought as final orders in the application, as recited above, and I will make a further order that the Applicant, with the assistance of her solicitors, VLA Victoria, serve a copy of these reasons and the orders, by email to the Respondent at the email address he provided this day, as well as the previous email address thought to be his email address.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 14 March 2024
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