Calafiore and Netia

Case [2019] FamCAFC 132


FAMILY COURT OF AUSTRALIA

CALAFIORE & NETIA [2019] FamCAFC 132
FAMILY LAW – APPEAL – CHILD SUPPORT – Where the father seeks leave to appeal from a declaration made pursuant to s 106A of the Child Support (Assessment) Act 1989 (Cth) – Where the mother, after the child’s birth, made an application to the Child Support Agency for an assessment for the father to pay child support – Where the father did not believe he was the father and no assessment was made – Where the mother took no further action for over four years – Where the father consented to a paternity test which confirmed his paternity – Where the mother sought a declaration that the father pay child support from the child’s birth – Where the trial judge found such a determination was to be made by the Child Support Agency – Where the central question on this appeal is whether the trial judge misapprehended the effect of the making of a declaration pursuant to s 106A of the Child Support (Assessment) Act 1989 (Cth) – Where the trial judge’s conclusion that it would be a matter for the Child Support Agency to determine the date upon which the assessment would commence was an error of law – Where the trial judge failed to consider adequately the question of an extension of time for the mother’s application –– Where the trial judge failed to consider a relevant consideration, namely, that if the s 106A application was dismissed it would remain open to the mother to apply to for an administrative assessment of child support supported by an unchallenged declaration of paternity – Where the requirements for a grant of leave to appeal are satisfied – Appeal allowed – Where there is no order as to costs.

Child Support (Assessment) Act 1989 (Cth) Pt. 7 Div 3, ss 7A, 29, 30, 31, 33, 98B, 106A
Family Law Act 1975 (Cth) ss 93A(2), 94AA

Family Law Regulations 1984 (Cth), reg. 15A
Family Law Rules 2004 (Cth) rr 1.14, 22.39
Federal Circuit Court Rules 2001 (Cth) rr 3.05, 16.05(2)(e), 25A.06

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Calafiore & Netia [2018] FamCAFC 220
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA76
Jess & Jess (2014) FLC 93-620; [2014] FamCAFC 227
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Rutherford and Rutherford (1991) FLC 92-255; [1991] FamCA 68
APPELLANT: Mr Calafiore
RESPONDENT: Ms Netia
FILE NUMBER: BRC 9596 of 2017
APPEAL NUMBER: NOA 77 of 2018
DATE DELIVERED: 2 August 2019
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Kent, Tree & Hogan JJ
HEARING DATE: 2 August 2019
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 13 December 2017
LOWER COURT MNC: [2017] FCCA 3430

REPRESENTATION

THE APPELLANT: In person
THE RESPONDENT: In person

Orders

  1. The appellant have leave to appeal from the declaration made in these proceedings in the Federal…

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AGLC
Calafiore and Netia [2019] FamCAFC 132
Case
[2019] FamCAFC 132
Decision Date

CaseChat Overview and Summary

Calafiore and Netia involved a dispute concerning the paternity of a child, with the mother seeking a declaration of paternity, child support from the child’s birth, and a declaration under section 106A of the Child Support (Assessment) Act 1989 (Cth). The Federal Circuit Court of Australia was tasked with determining whether the application for a declaration of paternity was within the prescribed time limit and if the court had jurisdiction to hear the matter.

The court examined whether the mother's application, filed more than four years after the child's birth, complied with the time constraints stipulated in section 106A and Rule 25A.06 of the Federal Circuit Court Rules 2001 (Cth). The primary issue was whether the delay in filing the application rendered it invalid and whether the court had jurisdiction to grant the declaration sought.

The court concluded that the application was indeed outside the prescribed time limit, and as such, it did not meet the requirements of section 106A. The delay was significant and had not been justified by the mother. Consequently, the court held that it did not have jurisdiction to grant the declaration of paternity or any of the other reliefs sought. The court allowed the appeal, set aside the declaration, and remitted the proceedings for rehearing by a different judge.

The Federal Circuit Court of Australia dismissed the mother’s appeal and set aside the declaration made in the earlier proceedings. The appeal was allowed, and the case was remitted for rehearing by a different judge. There was no order as to the costs of the appeal.

Orders

Orders of the court

1.

The appellant have leave to appeal from the declaration made in these proceedings in the Federal Circuit Court of Australia on 13 December 2017.

2.

The respondent’s Application in an Appeal filed on 17 July 2019 be dismissed.

3.

The appeal be allowed and the subject declaration be set aside.

4.

The proceedings be remitted for rehearing in the Federal Circuit Court of Australia by a judge other than the trial judge.

5.

There be no order as to costs of the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The mother took no further action for more than four years, until 12 September 2017 when she filed an Application in the FCC seeking a declaration of paternity, an order that child support be payable from the child’s birth and a declaration pursuant to s 106A of the Child Support (Assessment) Act 1989 (Cth) (“the CSAA”). Section 106A of the CSAA provides:Declaration that a person should be assessed in respect of the costs of the child (1) This section applies if: (a) the Registrar refuses to accept from an applicant an application for 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 the child is a parent of the child. Applications for declarations (2) An application may be made to a court having jurisdiction under this Act for a declaration that: (a) if the reason referred to in paragraph (1)(b) was the only reason for the Registrar refusing to accept the application--a person should be assessed in respect of the costs of the child because the person is a parent of the child; and (b) if the reason referred to in paragraph (1)(b) was one of the reasons for the Registrar refusing to accept the application--the Registrar should reconsider the application under Division 2 of Part 4 because a person who was to be assessed in respect of the costs of the child is a parent of the child. (3) The application must be made within: (a) the time prescribed by the applicable Rules of Court; or (b) such further time as is allowed under the applicable Rules of Court. ...Declarations (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 (b) if the reason referred to in paragraph (1)(b) was one of the reasons for the Registrar refusing to accept the application--the Registrar should reconsider the application under Division 2 of Part 4 because the person who was to be assessed in respect of the costs of the child is a parent of the child. (6) If the court grants the declaration: (a) if the reason referred to in paragraph (1)(b) was the only reason for the Registrar refusing to accept the application--the Registrar is taken to have accepted the application for administrative assessment of child support; and (b) if the reason referred to in paragraph (1)(b) was one of the reasons for the Registrar refusing to accept the application--the Registrar must reconsider the application under Division 2 of Part 4. Rule 25A.06 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) mandates that an application pursuant to s 106A must be brought within 56 days of a refusal by the CSA to assess child support.