F & Z - [2005] FMCAfam 394

FEDERAL MAGISTRATES COURT OF AUSTRALIA

F & Z

[2005] FMCAfam 394

CHILD SUPPORT – Children – application to extend time to apply for declaration pursuant to section 107 of the Child Support (Assessment) Act 1989 – principles applicable to application to extend time.

FAMILY LAW – Application for parentage testing under section 69W of the Family Law Act 1975 – meaning and effect of section 69W – whether parentage relevant to nature of substantive proceedings – whether evidence which places parentage of child in doubt – whether putative father has an “honest, bona fide and reasonable belief” as to the doubt that he is the child’s father – discussion of dicta in OP & HM [2002] FamCA 454 and TNL & CYT [2005] FamCA 77 – effect of presumption under section 69R of the Family Law Act 1975 arising from person’s name being entered as a parent of a child in a register of births or parentage information kept under a law of a State – evidence required to rebut presumption created by section 69R – whether the interests of justice are best served by the ascertainment of the truth (in relation to parentage) – whether the court should be furnished with the best available science or scientific evidence regarding parentage (and not be confined to alternatives such as presumptions or inferences) – whether relatively weak evidence is sufficient to rebut presumption under section 69R – whether welfare or best interests of child comprise the paramount consideration, or only a relevant but important consideration, in an application for parentage testing pursuant to section 69W – nature of discretion under section 69W – parentage testing ordered.

Family Law Act 1975, ss.65E, 68L, 69R, 69W, 69X
Child Support (Assessment) Act 1989, s.107

TNL & CYT (2005) FamCA 77 OP & HM (2002) FamCA 454 Duroux & Martin (1993) FLC 92-432 F & R (1992) FLC 92-300 Mr A & Ms B & Ms S (2005) FamCA 655 S & McC; W & W (1972) AC 24 Re H & A (Children) (2002) EWCA Civ 383 G & H (1993) FLC 92-380 J & P (1985) 10 FamLR 490 Briginshaw & Briginshaw (1938) 60 CLR 336 Leighton Contractors Pty Ltd v Kilpatrick Green Pty Ltd (1992) 2 VR 505 M & M (2002) FMCAfam 274 A & P (2004) FMCAfam 303
Applicant:	F

Respondent:

File Number:

MLM 4647 OF 2005

Judgment of:

Walters FM

Hearing date:

19 July 2005

Delivered at:

Melbourne

Delivered on:

11 August 2005

REPRESENTATION

Counsel for the Applicant:

Mr Mort of Counsel

Solicitors for the Applicant:

Whyte Just & Moore

Counsel for the Respondent:

Dr Alexander of Counsel

Solicitors for the Respondent:

Monash Oakleigh Legal Service

ORDERS

All relevant time limits be extended in such manner as to enable, authorise and permit the applicant to bring his applications for:
(a)a declaration pursuant to section 107 of the Child Support (Assessment) Act 1989; and
(b)parentage testing pursuant to section 69W of the Family Law Act

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading F & Z

Details

AGLC: F & Z [2005] FMCAfam 394
Case: [2005] FMCAfam 394
Decision Date: 11 August 2005

CaseChat Overview and Summary

In the Family Court of Australia, the case of F & Z involved a dispute between the parties regarding parentage and child support. The applicant sought declarations and parentage testing to ascertain whether he was the biological father of the child in question. The matter was heard and determined by the court, which was tasked with deciding whether to grant the applicant’s requests for parentage testing and associated orders.

The primary legal issues before the court were whether the applicant should be granted an extension of time to bring his applications for a declaration and parentage testing, and whether the court should order the parties to undergo parentage testing. The court had to consider the statutory provisions under the Child Support (Assessment) Act 1989 and the Family Law Act 1975, which provide for the testing of parentage and the making of declarations regarding parentage. Additionally, the court needed to weigh the interests of the child in the context of these statutory provisions.

The court found that it was appropriate to grant the applicant’s requests, acknowledging the importance of resolving the issue of parentage for the purposes of child support and the best interests of the child. The court extended the relevant time limits, ordered the parties to undergo parentage testing, and directed that the cost of the testing be borne by the applicant. The matter was adjourned to allow for the testing to be conducted and for the court to consider any further applications that might arise from the results of the testing.

Orders

Orders of the court

All relevant time limits be extended in such manner as to enable, authorise and permit the applicant to bring his applications for:

(a) a declaration pursuant to section 107 of the Child Support (Assessment) Act 1989; and

(b) parentage testing pursuant to section 69W of the Family Law Act 1975.

Pursuant to section 69W of the Family Law Act 1975, the parties sign all such documents and do all acts and things necessary to:

(a) undergo an approved parentage testing procedure (“the Procedure”) to ascertain whether the applicant is the natural father of the child; and

(b) cause, permit and encourage the said child to fully and effectively participate in and otherwise and undergo the Procedure.

Pursuant to section 69X of the Family Law Act 1975, the parties and the said child within 21 days of the date of this order do attend upon a registered medical practitioner of pathologist to enable a bodily sample to be taken from them for the Procedure to be carried out by such accredited laboratory as may be agreed upon between the parties.

The cost of the Procedure be paid by the applicant.

The matter be otherwise adjourned to 11 October 2005 at 9.45am.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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