COLLETT & FITCH

[2014] FCCA 2565

FEDERAL CIRCUIT COURT OF AUSTRALIA

COLLETT & FITCH [2014] FCCA 2565

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.

FAMILY LAW – Paternity – declaration that Respondent is the father of the Applicant’s child – where respondent failed to attend court – where Respondent failed to attend DNA testing as ordered – inference that Respondent is the father of the Applicant’s child.

PRACTICE AND PROCEDURE – Service – personal service – dispensation with personal service – substituted service by registered post.

COSTS – Order for costs.

Legislation:

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

Family Law Act 1975 (Cth), ss.69V, 69VA, 69W, 69X, 69Y

Federal Circuit Court Rules 2001, r.13.03C, Sch. 1, Part 1

Applicant: MS COLLETT

Respondent: MR FITCH

File Number: WOC 211 of 2014

Judgment of: Judge Scarlett

Hearing date: 28 October 2014

Date of Last Submission: 28 October 2014

Delivered at: Sydney

Delivered on: 28 October 2014

REPRESENTATION

Solicitor for the Applicant: Mr Wilson

Solicitors for the Applicant: RMB Family Law

Respondent: No appearance

ORDERS

1. The Applicant is granted leave to proceed ex parte.

2. It is declared in accordance with section 69VA of the Family Law Act 1975 that the Respondent MR FITCH is the father of the child X born on (omitted) 2013.

3. It is declared in accordance with section 106A of the Child Support (Assessment) Act 1989 that the Respondent MR FITCH 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.

4. The Respondent is to pay the Applicant’s costs fixed in the sum of $5753.00 within one month from the date of this Order.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

WOC 211 of 2014

MS COLLETT

Applicant

And

MR FITCH

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 in respect of the child. X was born on (omitted) 2013 and lives with his mother.

Service

1. The Applicant’s lawyers initially experienced difficulty in serving the documents on the Respondent. As a result, they filed an Application in a Case seeking orders dispensing with personal service on the Respondent on condition that service of the necessary documents be deemed to have been effected by service by registered post on the Respondent’s brother.

2. Those Orders were duly made on 15 April 2014.

3. The Applicant subsequently filed an affidavit by Claire Osborne, a solicitor employed by the Applicant’s solicitors, sworn on 23 July 2014. In her affidavit, Ms Osborne deposed that she served the documents by registered post on the Respondent’s brother on 17 April 2014. She further deposed that her firm sent a letter to the Respondent care of his brother’s address on 9 May 2014, advising him that the matter was listed before the Court on 22 July 2014.

4. I am satisfied as to service.       

Procedural History

1. The Respondent did not attend Court on 22 July 2014, nor did he attend Court on 19 August. On that date I ordered that the parties should submit to a parenting testing procedure and the Respondent was to:

   a)submit to a medical procedure;

   b)provide a bodily sample; and

   c)provide relevant information for the purpose of carrying out the parentage testing.

2. The Application was adjourned to 28 October 2014.

Evidence and Submissions

1. The Applicant relied on her affidavit of 24 October 2014 and gave short oral evidence. She deposed that she attended upon her general practitioner with her son and complied with the requirements of the DNA/Genetic testing laboratory to carry out DNA testing on her son and herself. This cost her a total of $550.00.

2. The Respondent did not undergo DNA testing, despite having been notified by the mother’s solicitor by letter of 2 September 2014, a copy of which was annexed to the Applicant’s affidavit.

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 and the Respondent would have been directed to give evidence had he attended court.

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.

3. If a person who is 18 or over contravenes a parentage test order under s.69W or an order under s.69X (which may include orders requiring the person to submit to a medical procedure or provide a bodily sample), section 69Y provides that the person is not liable to a penalty in relation to the contravention but the Court may draw such inferences from the contravention as appear just in the circumstances.

Declaration of Parentage

1. In my view, the Court can draw an inference from the Respondent’s failure to submit to DNA testing to determine the paternity of the Applicant’s child after having been ordered to do so that he is attempting to avoid a finding that he is in fact the child’s father.

2. I propose to issue a declaration that the Respondent is the father of the Applicant’s child.

Declaration that a person should be assessed in respect of the costs of the 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 respect of the costs of the child (i.e. an assessment of child support) where:

   a)the Child Support Registrar has refuses to accept an application for administrative assessment of child support under s.30(2) of the Act; and

   b)one of the reasons for the refusal was that the Registrar was not satisfied under s.29 that the person to be assessed was a parent of the child.

Conclusions

1. I am satisfied that the Applicant has established that that the Respondent is the father of the child X, who was born on (omitted) 2013. I am also satisfied that the Applicant has applied for an assessment of child support which was refused because the Registrar was not satisfied that the Respondent is a parent of the child.

2. I propose to make a declaration that the Respondent should be assessed in respect of the costs of the child because the Respondent is a parent of the child.

Costs

1. The Applicant seeks an order for costs. Her solicitor has assessed costs and disbursements in accordance with Schedule 1, Part 2, Division 1 of the Rules at $5,753.00, including the cost of the DNA testing amounting to $550.00.

2. This is suitable matter for a costs order in favour of the Applicant, as the Respondent has been wholly unsuccessful. He has made no effort to participate in the proceedings at all. By doing so, he has made the Applicant’s task of establishing her claim more difficult and more expensive.

3. The amount sought on a party and party basis complies with the Rules and is an appropriate figure in the circumstances. I will allow a month to pay.     

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  7 November 2014