BOWES & HAYMES

[2014] FCCA 1616

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOWES & HAYMES [2014] FCCA 1616

Catchwords:
CHILD SUPPORT – Declaration that Respondent should be assessed in relation to costs of the Applicant’s Child – where Respondent did not attend court on the hearing of the application.

PRACTICE AND PROCEDURE – Service – personal service – dispensation with personal service – where Respondent “keeping house”.

FAMILY LAW – Paternity – declaration that Respondent is the Father of the Applicant’s Child.

COSTS – Order for costs.

Legislation:

Child Support (Assessment) Act 1989 (Cth), ss.29, 30, 106A

Family Law Act 1975 (Cth), ss.69V, 69VA
Federal Circuit Court Rules 2001, r.13.03C

Applicant: MS BOWES

Respondent: MR HAYMES

File Number: SYC 2553 of 2014

Judgment of: Judge Scarlett

Hearing date: 15 July 2014

Date of Last Submission: 15 July 2014

Delivered at: Sydney

Delivered on: 15 July 2014

REPRESENTATION

Solicitor for the Applicant: Mr McCulloch

Solicitors for the Applicant: Legal Aid NSW

The Respondent: No appearance

ORDERS

1. It is declared in accordance with section 69VA of the Family Law Act 1975 that the Respondent MR HAYMES is the Father of the Child X born on (omitted) 2013.

2. It is declared in accordance with section 106A of the Child Support (Assessment) Act 1989 that the Respondent MR HAYMES is to be assessed in respect of the costs of the child X born on (omitted) 2013 because the said Respondent is a parent of the child.

3. The Respondent is to pay the Applicant’s costs fixed in the sum of $800.00 and is allowed three (3) months to pay.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2553 of 2014

MS BOWES

Applicant

And

MR HAYMES

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the mother of a little boy called X for declarations that the Respondent is X’s father and that the Respondent should be liable for an assessment of child support. X was born on (omitted) 2013 and lives with his mother.

Service

1. The Applicant’s lawyers, Legal Aid NSW, initially experienced difficulty is serving the documents on the Respondent. An Application in a Case was brought, seeking an order dispensing with personal service. The Application was supported by an affidavit of a process server, Mr A, who deposed that he had attempted to serve the documents on the Respondent at an apartment building on 4 June 2014.  Whilst he was able to speak to a person who identified himself as the Respondent, Mr A was unable to gain access to the building to effect service. It appeared that the Respondent was “keeping house”, in other words, confining himself to his house in an endeavour to avoid service.

2. On 10 June 2014 I dispensed with the requirement for personal service and directed that service was to be effected by post. The Applicant’s lawyers subsequently filed an Affidavit of Service showing that the documents were served by post on 2 July 2014.

3. I am satisfied as to service.     

Evidence and Submissions

1. The Applicant attended court with her solicitor. The Respondent did not attend Court, nor was there any appearance on his behalf. There was no message from the Respondent advising that he had been hindered, delayed or prevented from attending Court due to illness, injury or other emergency. The Respondent did not file a Response or an Affidavit.

2. In the circumstances, it was appropriate to proceed with the hearing generally under the provisions of Rule 13.03C.

3. The Applicant relied on her Affidavit of 23 April 2014 and gave oral evidence in support. Her evidence is that she met the Respondent in 2012 and commenced an intimate relationship with him in February 2013. This relationship included sexual intercourse and concluded on 7 April 2013. The Applicant gave evidence that she did not have a sexual relationship with any other man during the period of the relationship or at any time for some 18 months before the birth of her child.[1]

   [1] Affidavit of Ms Bowes 23.4.2014 at paragraph [5]

4. The child X was born on (omitted) 2013. The Applicant deposed that she sent the Respondent a text message when the child was born but he did not reply.[2]

   [2] Ibid at [10]

5. The Applicant applied for an assessment of child support in February 2014, but this application was rejected, as the Child Support Registrar was not satisfied that there was sufficient evidence that the Respondent was the child’s father. A copy of the letter dated 26 March 2014 forms Annexure “A” to the Applicant’s affidavit.

6. The Applicant’s solicitor wrote to the Respondent on 26 March 2014, noting that she had spoken to the Respondent previously by telephone, and enclosing a form of statutory declaration for the Respondent to complete. There was no reply from the Respondent.[3]

   [3] Affidavit of Ms Bowes 23.4.2014 Annexure “B”

7. The applicant gave oral evidence that there had been no contact from the Respondent since. He has not seen the child.

Parentage Evidence

1. Section 69V of the Family Law Act 1975 (Cth) permits the Court, if the parentage of a child is a question in issue in proceedings under the Act, to make an order requiring any person to give such evidence as is material. The Applicant has given oral and written evidence. Had the Respondent attended Court he would have been directed to give evidence.

2. Section 69VA of the Act empowers the court not only to decide the issue of parentage of a child after receiving evidence, but to issue a declaration of parentage for the purposes of all laws of the Commonwealth. I propose to issue such a declaration.

Declaration that a person should be assessed in respect of the costs of a child

1. Section 106A of the Child Support (Assessment) Act 1989 (Cth) permits the Court to make a declaration that a person should be assessed in respects of the costs of a child (i.e.an assessment of child support) in circumstances where:

   (a)     the Registrar refuses to accept from an applicant an application for the administrative assessment of child support for a child under subsection 30(2); and

   (b)     one of the reasons for the Registrar so refusing was that the Registrar was not satisfied under section 29 that a person who was to be assessed in respect of the costs of a child is a parent of the child.

Conclusions

1. I am satisfied that the Applicant has established that the Respondent is the Father of the Child X, who was born on (omitted) 2013. The Respondent has been served, apparently against his will, and has failed to attend court.

2. I am satisfied that the Applicant has applied for an assessment of child support against the Respondent, and that her application has been refused as the Registrar was not satisfied at the time that there was evidence that the Respondent was the child’s father. As a declaration of parentage is to be made, there is a basis for making a declaration under s.106A of the Child Support (Assessment) Act 1989 that the Respondent should be assessed in respect of the costs of the child.

Costs

1. The Applicant’s solicitor, Mr McCulloch, sought an order for costs, submitting that the Legal Aid Commission should be as entitled to seek a costs order as any other lawyer. The question of costs is covered by s.117 of the Family Law Act 1975 and, if the Court is to form the opinion that there are circumstances that justify it in making an order for costs, it must consider the maters in s. 117(2A).

2. There is no evidence of the Respondent’s financial circumstances, other than that he is in employment as an (omitted).

3. The Applicant is in receipt of legal aid.

4. The Applicant has done what was required of her to bring her case on before the Court efficiently and economically. The Respondent has not. He attempted to avoid service, necessitating an Application to dispense with personal service. He did not attend court, nor did he file any documents.

5. The Respondent has been wholly unsuccessful in the proceedings.

6. I am of the opinion that the circumstances of the case justify the making of an order for costs in favour of the Applicant. The amount sought is $800.00, which is significantly less than the amount provided by the Court scale.

7. An order will be made that the Respondent is to pay the Applicant’s costs, fixed in the sum of $800.00. I will allow three months to pay.  

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  23 July 2014