E and S

[2009] FCWA 57

[2009] FCWA 57

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	CHILD SUPPORT (ASSESSMENT) ACT 1989
LOCATION	:	PERTH
CITATION	:	E and S [2009] FCWA 57
CORAM	:	PENNY J
HEARD	:	11 AUGUST 2008
DELIVERED	:	22 MAY 2009
FILE NO/S	:	PTW 93 of 2007
BETWEEN	:	E Applicant/Father
AND
S Respondent/Mother
Catchwords:

Child support - father seeks declaration pursuant to s 107(4) of the Child Support
(Assessment) Act 1989 that he is not liable parent

DNA test results confirm he is the father - further DNA test ordered - mother and child give samples - father says samples to be given at alternate medical practice - onus of proof on father - fails to discharge onus - application dismissed

Legislation:

Child Support (Assessment) Act 1989 - s 107(1), s 107(2), s 107(4)

Category: Not Reportable

[2009] FCWA 57

Representation:

Counsel:

Applicant	:	Self Represented Litigant
Respondent	:	Ms J Brown

Solicitors:

Applicant	:	Not Applicable
Respondent	:	Lynn & Brown

Case(s) referred to in judgment(s):

Nil

[2009] FCWA 57

1 The current matter before the Court relates to the application of the applicant

seeking orders that there be a finding that he is not the parent of a child [Kevin], born [in] 2006, and that there be a declaration pursuant to s 107(4) of the Child Support (Assessment) Act 1997 that the respondent was not entitled to an administrative assessment of child support for the child payable by the applicant.

2 To understand this application and the respondent’s attitude to it, it is important to look at the history of this matter.

3 On 9 January 2007 the applicant commenced proceedings seeking an order that

there be DNA testing to determine the paternity of [Kevin] and that the applicant, who at that time described himself as “the father”, be able to spend time with [Kevin]. The respondent filed a Form 2A agreeing that there should be DNA testing.

4 Around the time of [Kevin]’s conception the parties had been in a relationship but had not lived together.

5 In the respondent’s Client Information Form she stated that there was a dispute

between herself and the applicant because the applicant doubted that he was [Kevin]’s father, but if the DNA results showed that he was [Kevin]’s father, she had concerns about him having unsupervised contact with [Kevin].

6 On 6 February 2007 an order was made that the applicant, the respondent and

the child, [Kevin], undergo parenting testing procedures and that the applicant pay the costs of that testing, until further order. The results of the DNA testing established that the applicant was the father of [Kevin], and on 29 March 2007 the Court made a finding “by consent, that the applicant and the respondent are the parents of [Kevin]”.

7 It was further ordered by consent that until further order of the Court the child

live with the respondent and spend time with the applicant on Sundays during April 2007 between 3.00 pm and 4.00 pm, May 2007 between 3.00pm and 5.00pm, and during June and July 2007 between 2.00pm and 5.00pm. The contact was to be supervised by [the respondent’s mother].

8 On 26 July 2007 orders were made that the applicant spend time with [Kevin]

for one hour a fortnight at [a gym] with contact to be supervised by the maternal grandmother. A previous order had been made that the applicant was to attend a parenting course. A further order was made on 26 July 2007 that the applicant was to provide to the respondent’s solicitor written proof of his enrolment in a parenting course.

9 In August 2007 the applicant filed a document headed “orders sought” setting

out further time with [Kevin] sought by him and other orders, including an order that “parenting certificate” should be dismissed as the applicant has “kids” without any history of assault or lack of caring. It appears that the applicant was seeking to discharge the order previously made that he attend a parenting course.

10 On 20 September 2007 a further order was made that the applicant spend time

with [Kevin] for an hour a fortnight on a Sunday at [the church] supervised by the respondent’s mother. There was a further order that the applicant was to be

[2009] FCWA 57

responsible for paying the child’s entry fees to the [gym] each fortnight when he
spends time with the child there.

11 The applicant then filed some submissions, some of which went to the issue of

the child’s surname being changed to his surname as he was the father and others in relation to the respondent’s conduct with [Kevin]. The parties were due to attend a counselling conference on 26 November 2007. The respondent attended by telephone and the applicant attended in person, but refused to meet with the consultant, stating that he had been told there would be another consultant assigned to the matter. The Manager of the Family Court Counselling Consultancy Service, Mr Kerin, offered to sit in the interview with the consultant and the applicant, however, he declined the offer.

12 On 17 December 2007 the applicant wrote to the respondent’s lawyer advising

of his intention to change [Kevin]’s surname to “the biological father’s name”. He stated that if he did not hear from the lawyers after this letter “I will not hesitate to file action for judicial intervention”.

13 The applicant is [from overseas]. An order was made on 20 December 2007 that

the applicant have [an interpreter] present at future court hearings. The applicant, in
my opinion, understands and speaks English quite well, but has a very heavy accent.

14 On 5 February 2008 the applicant filed a contravention application alleging that

the respondent had failed to allow the applicant to spend time with [Kevin] on
29 December 2007 without reasonable excuse.

15 On 21 February 2008 the Form 18 contravention application filed by the

applicant was dismissed, the Court finding the respondent not guilty, having tendered a reasonable excuse for the child’s non-attendance at the contact centre. A further order was made with the consent of both parties that subject to the applicant meeting all the costs associated with it, the parties will do all necessary things to submit to parenting testing. This order was made notwithstanding the previous DNA testing results. A further order was made that all previous orders for the applicant to spend time with [Kevin] be suspended and there be liberty to relist following the results of the DNA testing.

16 The applicant was ordered to pay the sum of $100 towards the respondent’s costs of the proceedings within 42 days. That amount was not paid.

17 On 4 April 2008 Mr Pillay filed a Notice of Address for Service on behalf of the

applicant.

18 On 28 February 2008 Mr Pillay sent a letter to the respondent’s solicitors stating

that the applicant had instructed them in relation to the orders made regarding the
DNA test. The letter stated:

“Our client has given us a copy of a brochure from the lab and has requested we pass it on to you. Could you have your client make arrangements for a test to be done in accordance with the orders made?

[2009] FCWA 57

Should you have any queries in relation to this please do not hesitate to contact us.”

19 The brochure included in the letter was from DNA Solutions. On 1 May 2008 the respondent and [Kevin] attended upon Western Diagnostics in Myaree as suggested by DNA Solutions and samples were taken.

20 The applicant now states that he does not want to attend DNA Solutions and

provide a sample for them. He insists that the respondent and [Kevin] should attend a clinic nominated by him to have the test. Further, it is his belief that there are two other men who may be the father of [Kevin], and they should attend for testing as well. The respondent says she has provided her sample and [Kevin]’s and does not want to be tested again.

21 At the hearing the respondent stated that she could not agree to a declaration that

the applicant was not a parent of [Kevin] because, in her view, the first DNA test clearly showed that he was. She was, however, prepared to agree that she would forego any entitlement to an administrative assessment for child support payable by the applicant if he would agree not to spend time with the child. The applicant would not agree to this proposal.

The law

22 S 107(1) of the Child Support (Assessment) Act 1989 states:

“107(1) If the Registrar accepts an application for administrative assessment of child support for a child, an application may be made, subject to subsection (1A), to a court having jurisdiction under this Act for a declaration that a person should not be assessed in respect of the costs of the child because the person is not a parent of the child.

…

107(2) The application must be made within the time prescribed by the applicable Rules of Court or within such further time as is allowed under the applicable Rules of Court.

…

107(4) The court may grant the declaration if the court is satisfied that the person should not be assessed in respect of the costs of the child because the person is not a parent of the child.”

23 The applicable Rules of Court in respect of this application are found in the

Family Law Rules as adopted in Rule 12 of the Family Court Rules. Rule 4.18(1) states that for an application for child support, or a declaration, the documents to be filed with the application should be an affidavit setting out the facts relied on in support of the application; a schedule setting out the section of the Assessment Act under which the application is made; a copy of any decision, notice of decision or assessment made by the Child Support Registrar relevant to the application and a copy

[2009] FCWA 57

of any document lodged by a party with the Child Support Registrar relevant to the
decision or assessment.

24 The application was filed by the applicant in person. The application sets out the

section of the Child Support (Assessment) Act under which the application is made. Attached to the application is a copy of the order made on 21 February 2008, but there is not attached to the application or affidavit any copy of any assessment or notice of decision made by the Child Support Registrar relevant to the application. There is no proof that any child support assessment, in fact, has been made, although perusing the correspondence between the respondent’s solicitors and the applicant, it is clear that there has been an assessment and that the applicant has been assessed to pay the minimum sum. The applicant himself sought a stay of the assessment until such time as an order was made as to whether he was the parent of the child.

25 This assessment or notice of decision is important because there are time limits set under the Family Law Rules for the applicant to bring this application. Rule 4.20 of the Family Court Rules states that a person must file an application for a declaration under subsection 107(1) of the Assessment Act within 60 days after being served with a notice given under s 33 or s 34 of that Act. Given that the order made by consent that the parties were the natural parents of the child was made on 29 March 2007, I suspect an assessment was made some time ago.

26 I will deal with the application despite this defect in the information provided by the applicant as no issue was taken by the respondent’s counsel in relation to it.

The facts

27 The applicant says there are three matters I should take into account when determining this application:

(1)

The applicant now seems to be convinced that two other [countrymen] may be the fathers of [Kevin]. He has not made any application that any other person provide a sample for DNA testing although he wrote to a person suggesting a court order had been made to that effect. The respondent agreed that another man could also be tested. This person has not been tested as there was no order made, or sought, in respect of him.

(2)

Although the order was made on 21 February 2008, the respondent did not provide the DNA samples of herself and [Kevin] until 1 May 2008, being the day that the applicant filed his application. The samples were provided at Western Diagnostics, a laboratory nominated by DNA solutions as an appropriate place for the samples to be taken. The applicant had suggested that the samples should be taken at the clinic in East Perth. The respondent decided to provide the samples to the DNA Solutions at a laboratory close to her home. It appears the applicant now refuses to provide a sample to DNA Solutions and is insisting that the respondent and [Kevin] provide further samples to a clinic in East Perth.

[2009] FCWA 57

(3) The applicant also disputes the methodology used by the laboratory which produced the first DNA test result, but has not provided any expert evidence to challenge the finding.

28 From this set of facts the applicant says that I should be able to infer that he is not the father of the child.

29 Given the fact that there is a DNA test result in existence which indicates the

applicant is the parent of [Kevin], the onus is upon the applicant to prove that he is not the father of [Kevin]. The burden of proof in such circumstances is on the balance of probabilities. The applicant has given no reason why he will not provide a sample for analysis by DNA Solutions. This was the organisation initially nominated on his behalf by his solicitor at the end of February 2008. Apart from the fact that samples collected by Western Diagnostics on behalf of DNA Solutions may then be required to be tested in the Eastern States, he has given no reason why the testing procedures adopted by them would not be appropriate.

30 I adjourned the matter for one month after the initial hearing to allow the

applicant to provide a sample to DNA Solutions. He did not do this, insisting the only
place that the sample should be provided was the medical practice in East Perth.

31 I am not prepared to find on the evidence that the applicant is not the father of [Kevin]. I say this for the following reasons:

• There is in existence results of a DNA test confirming that he is the father.

• He has failed to attend at a place nominated by DNA Solutions to provide a sample for DNA testing.

• His insistence on the respondent and [Kevin] attending upon a medical practitioner in East Perth is unreasonable when she has already provided a sample to a laboratory.

• The respondent’s position that she would not object to another man with whom she had sexual relations being tested does not amount to a concession that that person is or could be the father.

• The applicant’s contention that the methodology used to establish parenting in the first DNA test was faulty is not backed up by any expert evidence.

32 In my opinion, I cannot from the above circumstances infer that the applicant is not the father of [Kevin], and the application will be dismissed.

I certify that the preceding [32] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate