Crosby & Cole

[2022] FedCFamC2F 223

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Crosby & Cole [2022] FedCFamC2F 223  

File number(s):

MLC 10793 of 2021

Judgment of:

JUDGE BENDER

Date of judgment:

8 February 2022

Catchwords:

FAMILY LAW – CHILD SUPPORT – the Father’s application for a declaration that he not be assessed to pay child support in relation to the child – where the Father is not a biological parent of the child – where the Father was paying child support following separation until he became aware he was not a biological parent of the child – the Mother is not participating in the proceedings – the Mother has been made aware of the Father’s application.

HELD – orders made that the Father not be assessed to pay child support in relation to the child.

Legislation:

Child Support (Assessment) Act 1989 (Cth) ss. 33, 34, 107, 143

Division:

Division 2 Family Law

Number of paragraphs:

11

Date of hearing:

8 February 2022

Place:

Melbourne

Solicitor for the Applicant:

Ms Hill of Tarella Law

Solicitor for the Respondent:

The Respondent did not appear

ORDERS

MLC 10793 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR CROSBY

Applicant

AND:

MS COLE

Respondent

ORDER MADE BY:	JUDGE BENDER
DATE OF ORDER:	8 FEBRUARY 2022

THE COURT ORDERS THAT:

1.Pursuant to Rule 1.31(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the Applicant be granted leave to proceed out of the time period specified at Rule 1.13(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021,

2.Pursuant to s.107 of the Child Support (Assessment) Act 1989, the Court declares that the Applicant Mr Crosby should not be assessed in respect of the costs of the child, X born in 2017 because the Applicant is not a parent of the child.

3.Pursuant to s.143(3) of the Child Support (Assessment) Act 1989 there be no Order for the recovery of any monies paid by the Applicant Mr Crosby to the Respondent Ms Cole.

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 Crosby & Cole has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
(Revised from Transcript)

JUDGE BENDER

INTRODUCTION

1. This is an Application filed by Mr Crosby seeking an order under s.107 of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) that he should not be assessed to pay any monies in relation to the child X born in 2017 (“X”) because he is not a parent of that child.

2. The Application has had a number of previous appearances primarily to deal with issues of service.

3. On the first occasion detailed orders were made by Registrar Mathews in relation to substituted service. Those requirements have been complied with and I am satisfied that this Application has come to the attention of the Respondent and of the Child Support Agency. This is not only on the basis of the Applicant’s compliance with the orders for substituted service but also the brief affidavit from the Applicant in which he refers to a brief telephone conversation he had with the Respondent during which she acknowledged receiving the Court papers and thanked him for not pursuing a repayment of child support previously paid by him.

   BACKGROUND

4. The parties were in a relationship between 2015 and 2019. During that period, two children were born. Sadly one of them passed away shortly after birth. The second of the children is X, who is now four years of age.

5. After the parties separated there was a discussion between the parties in which the Respondent indicated that X may not be the Applicant’s child. As a result of that information deoxyribonucleic acid (“DNA”) testing was undertaken. Firstly an informal test was undertaken and subsequently a test was conducted in a manner that allows the Court to take proper notice of the result thereof. Annexed to the affidavit filed by the Applicant on 1 October 2021 is a copy of the finding of the DNA test which states the Applicant cannot be X’s father.

6. Immediately upon receiving that information the Applicant filed this Application. This was well outside the 56 days that the Act and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) set out as the time limit for making such an application after a notification of assessment is received.

   APPLICATION

7. Rule 1.13(3) of the Rules requires such an application for a declaration under s.107(1) of the Assessment Act to be brought within 56 days of service after being served with a notice under s.33 or s.34 of that Act. Notice under s.33 or s.34 of the Assessment Act is when a party is advised they have been assessed to pay child support. As I have indicated, in the circumstances of this case it was quite some years after an assessment for child support was made that the question of X’s paternity was raised. As soon as it was, the Applicant did everything appropriate to have that issue determined and as soon as the DNA test results were received the Applicant commenced these proceedings. In these circumstances I do not hesitate in granting the Applicant leave to bring this Application outside the time allowed under the Rules.

8. In relation to the substantive Application I am satisfied that the Applicant is not the parent of X and that in the circumstances it is appropriate that I make a declaration under s.107(4) of the Assessment Act that the Applicant is a person who should not be required to pay costs in relation to X.

9. When such an order is made s.107(6) of the Assessment Act requires the Court to consider making an order under s143 of the Assessment Act. Section 143 of the Assessment Act gives the Court the discretion to make an order for the recovery of child support that was paid where there was no obligation to do so. 

10. To his credit the Applicant in this matter is not pursuing repayment of the maintenance paid by him for X. On a pragmatic level I accept the Applicant does so on the understanding that in all probability the Respondent will never have the capacity to repay him but I also accept the Applicant recognises that the assistance that he provided for X was needed and he does not begrudge that assistance going to X.

11. For these reasons, no order will be made pursuant to s143 of the Assessment Act requiring the Respondent to repay the previous child support paid by the Applicant for X.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bender.

Associate:

Dated:       2 March 2022