G and N
[2002] FMCAfam 281
•22 August 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| G & N | [2002] FMCAfam 281 |
| CHILD SUPPORT – Child maintenance – parentage testing established payer not biological father – no jurisdiction to make orders under the Family Law Act 1975 for recovery of maintenance paid where payer is not the biological parent. PRACTICE & PROCEDURE – Jurisdiction – no jurisdiction to make orders under the Family Law Act 1975 for recovery of maintenance paid where payer is not the biological parent. Family Law Act 1975, ss.69ZC(1), 66A, 69X(4), 60B Tobin & Tobin [1999] famCA 446; (1999) FLC92-848; 24 fam LR 635 Cameron v Cole (1944) CLR 571 |
| Applicant: | A G |
| Respondent: | M N |
| File No: | DGM 2048 of 2001 |
| Delivered on: | 22 August 2002 |
| Delivered at: | Melbourne |
| Hearing Date: | 22 August 2002 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Mr A. G appeared on his own behalf |
| Solicitors for the Applicant: |
| Counsel for the Respondent: | Ms M. N via telephone on her own behalf |
| Solicitors for the Respondent: |
ORDERS
THAT the order of the Family Court of Australia made on 13 April 1992 whereby the Applicant A G is required to pay maintenance in respect of the child P W born 26 June 1986 be and is hereby discharged together with any arrears pursuant thereto.
THAT the Respondent pay to the Applicant, the sum incurred by him in relation to the parentage testing ordered on 5 July 2002 within 30 days of provision to her by the Applicant of evidence of the exact cost of the parentage testing.
THAT all extant Applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
THE COURT NOTES
THAT these orders are made as a consequence of the results of parentage testing which has established that the Applicant A G is excluded from identification as the biological father of the said child.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
DGM 2048 of 2001
| A G |
Applicant
And
| M N |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns Applications by A G filed 14 November 2001 and 22 March 2002 seeking:
(a)The discharge of a maintenance order made on 15 April 1992 for the child P W G (“P”) born 24 June 1986, together with any arrears;
(b)Repayment by the Respondent mother to him of maintenance payments (referred to as child support in the Application) paid between December 1987 and January 2002 in relation to P, in the sum of $28,752.
(c)Cost of DNA testing;
(d)Any costs incurred by the Applicant in relation to the proceedings.
The Respondent seeks that the Application be dismissed.
The basis for the Application brought by the Applicant is an assertion that he is not the biological father of P. Both parties in this matter are unrepresented. The issue before me today was raised by me and is a preliminary issue and involves the question of whether there is jurisdiction to make orders pursuant to Division 7 of Part VII of the Family Law Act1975 (the FLA), when as a result of parentage testing a person who was previously paying maintenance for a child pursuant to an order is found not to be the biological parent of that child. If not, then those rights must be pursued in a civil court.
Both the Applicant and the Respondent submitted that the Court has jurisdiction under s.66S of the FLA to deal with the Applicant's Application and in particular has jurisdiction pursuant to s.66S(9) of the Act. There is no party contending for the opposite view, however, before determining any questions of fact and proceeding further, I must be satisfied that I have jurisdiction to make the orders sought. Accordingly, despite the fact that each of the parties submits that I may deal with the Application pursuant to s.66S(9) of the FLA, I must first consider whether there is jurisdiction to make orders pursuant to s.66S.
Brief chronology
The parties were married on 25 December 1981 and separated on
8 March 1985. A decree nisi dissolving their marriage was granted on 23 December 1987. On 24 June 1986, after separation, the child P was born. The parties thereafter conducted themselves in relation to P on the basis that the Applicant was P's biological father. The Applicant believed he was P's biological father and the Respondent says that she also had the same belief. I make no findings in relation to this or other issues of fact, as the matter is proceeding at this stage only on the preliminary issue of jurisdiction, and the evidence of the parties has thus not been tested.
Various parenting orders were made in the Family Court of Australia following the separation of the parties on the basis that the Applicant was the biological father of P. Orders for maintenance payable by the Applicant for the child P were made, firstly on 22 December 1987 when the Applicant was ordered to pay $30 per week for the maintenance of P, and then, when the current maintenance order was made on 13 April 1992 by the Family Court of Australia at Dandenong, increasing the maintenance payable to $47.50 per week.
At some stage following their separation, the Respondent moved to Brisbane with the child where she presently resides. She has
re-married.
It appears, putting it as neutrally as I can, from the material before me that the Applicant has had little, but some, contact with the child P since separation, and certainly had contact with him last year.
During a contact visit between P and the Applicant at Easter 2001 in Melbourne, the Applicant had DNA testing done in relation to himself and P. It is common ground that at the time neither the child nor the Respondent knew that it had happened and the testing was to that extent, carried out by subterfuge. It was done without the knowledge of the child or the Respondent, and on the pretext of being an allergy test.
History of proceedings
An Application was filed on 14 November 2001 by the Applicant seeking Orders under Division 7 of Part VII of the FLA in which he sought that the current child maintenance order for P, including any arrears, be discharged on the ground that he was not the father of the said child. Secondly, he sought an order that the Respondent be ordered to repay to him all maintenance (referred to as child support) paid under this order. That Application came before Federal Magistrate Connolly at Dandenong on 21 January 2002.
The matter was called on but there was no appearance by the Respondent. Being satisfied that the respondent had been served, Connolly FM made orders to which I will refer in a moment. In support of his application for discharge of the order the applicant had referred to the results of the parentage test that he had undertaken on himself and the child which indicated that he was not the biological father. He sought to rely upon that evidence. Having been satisfied as to service and there being no appearance by the respondent, Connolly FM discharged the orders of the Family Court of Australia dated
13 April 1992 together with any arrears outstanding in relation to the order. He did not make any order in relation to the repayment of moneys by the respondent and otherwise dismissed the application.
Following these proceedings, the Applicant then filed an Application on 22 March 2002, in which he sought recovery from the mother of the payments of maintenance he made, between December 1987 and January 2002, which he says total $28,752.
The Application came before Federal Magistrate Phipps in Dandenong on 11 June 2002. When he examined the file it became apparent why the Respondent had not appeared on 21 January. She had in fact, sent a fax that day to the Court indicating that she wanted to be heard in relation to the Application and seeking to be heard from Queensland by telephone. That document did not immediately find its way to the Court file or to the attention of Federal Magistrate Connolly when he heard the matter. It did not come to the attention of the Court until Federal Magistrate Phipps dealt with the present Application on
11 June.
Although the respondent did not appear on 11 June, having regard to the fact that she had faxed the court and sought to be heard on the earlier application, Phipps FM made the following orders:
a)first, he ordered that the applicant's application be adjourned for final hearing to 30 July at Melbourne;
b)Secondly, he ordered that any application by the respondent to set aside the orders made on 21 January be filed and served within 14 days of service of this order;
c)Thirdly, he provided for the applicant to serve a copy of this order on the respondent as soon as possible by posting it by prepaid post to her address in Queensland;
d)Fourthly, he ordered that the respondent pay the filing fee for her response or apply for dispensation within 14 days of service a copy of the order; and
e)He provided that if the wife did not comply with paragraphs 2 and 4 of the order the applicant be at liberty to apply to proceed with his application on 30 July as an undefended matter.
The matter was listed for hearing before me on 30 July 2002. In a telephone mention with the parties prior to the hearing I raised with them what seemed to me to be issues for each of them at the hearing. In the case of the Respondent, she had filed some material, but there was an issue as to whether that material constituted an Application to set aside the Orders, and whether it was filed within the required time. From the Applicant's point of view, he faced the issue of whether the Court would admit as evidence, the parentage test which had not been carried out under the provisions of the FLA by a registered or licensed parentage testing authority in accordance with the Act.
Having being alerted to the problems that each of them faced, the parties sensibly in my view, consented to a parentage test pursuant to s.69W of the FLA and on 5 July 2002, by consent, I made Orders which provided for parentage testing in relation to the child P and each of the parties. I also set aside the previous orders made in the absence of the Respondent.
That parentage testing has now been carried out and a report in accordance with the Family Law Regulations is annexed to an Affidavit filed 14 August 2002 by the Applicant. The results of the test indicates that the testing procedures carried out on the bodily samples of the donors show that the Applicant is excluded from identification as the father of the child P. The report has been admitted into evidence pursuant to s.69ZC(1) of the FLA. It is now clear therefore, that the Applicant is not the biological father of P.
In support of his submission that there is jurisdiction to deal with his Application under the FLA, the Applicant relies upon s.66S of the FLA which deals with modification of child maintenance orders.
Summary of the Law
Division 7 of Part VII of the Family Law Act (1975) deals with child maintenance orders. The provisions of s. 66A – S deals with a variety of matters. They include the objects of the Family Law Act 1975, the duty of parents to maintain the children, who can apply, the approach to be taken in making an order, orders for children who are over 18 years and step parenting orders.
Section 66S deals with modification of child maintenance orders and is in the following terms:
66S(1) [Application of section] This section applies if:
(a) there is in force an order (the first order ), for the maintenance of a child (whether or not made under this Act and whether made before or after the commencement of this section):
(i) made by a court; or
(ii) registered in a court under the applicable Rules of Court; and
(b) a person (being someone who could apply for a child maintenance order in relation to the child) or persons (each of whom could do that) apply to the court for an order under this section in relation to the first order.
66S(1A) [Orders with consent] With the consent of all the parties to the first order, the court may make an order:
(a) discharging the first order; or
(b) suspending its operation wholly or in part and either until further order or until a fixed time or the happening of a future event; or
(c) if the operation of the order has been suspended under paragraph (b) or (2) (b) -reviving its operation wholly or in part; or
(d) varying the order:
(i) so as to increase or decrease any amount ordered to be paid by the order; or
(ii) in any other way.
66S(1B) [Entitlement to pension] However, the court must not make an order under subsection (1A) that allows any entitlement of a child or another person to an income tested pension, allowance or benefit, to affect the duty of that child's parents to maintain the child.
Note:
For the duty of a parent to maintain a child, see section 66C .
66S(2) [Discharge, suspension, revival, variation of child maintenance orders]
In any other case, the court may, by order:
(a) discharge the first order if there is just cause for so doing; or
(b) suspend its operation wholly or in part and either until further order or until a fixed time or the happening of a future event; or
(c) if the operation of the order has been suspended under paragraph (b) or (1A) (b), revive its operation wholly or in part; or
(d) subject to subsection (3) , vary the order:
(i) so as to increase or decrease any amount ordered to be paid by the order; or
(ii) in any other way.
66S(3) [Variation to increase or decrease amount payable] The court must not vary the order so as to increase or decrease any amount ordered to be paid by the order unless it is satisfied:
(a) that, since the order was made or last varied:
(i) the circumstances of the child have changed so as to justify the variation; or
(ii) the circumstances of the person liable to make payments under the order have changed so as to justify the variation; or
(iii) the circumstances of the person entitled to receive payments under the order have changed so as to justify the variation; or
(iv) in the case of an order that operates in favour of, or is binding on, a legal personal representative - the circumstances of the estate are such as to justify the variation; or
(b) that, since the order was made or last varied, the cost of living has changed to such an extent as to justify its so doing (this is expanded on in subsections (4) and (5) ); or
(c) if the order was made by consent – that the amount ordered to be paid is not proper or adequate (this is expanded on in subsection (6) ); or
(d) that material facts were withheld from the court that made the order or from a court that varied the order, or material evidence previously given before such a court was false.
66S(4) [Changes in CPI] In satisfying itself for the purposes of paragraph (3)(b) , the court must have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.
66S(5) [Change in cost of living] The court must not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or last varied having regard to a change in the cost of living.
66S(6) [Payments etc. to child] In satisfying itself for the purposes of paragraph (3)(c) , the court must have regard to any payments, and any transfer or settlement of property, previously made to the child, or to any other person for the benefit of the child, by the person against whom the order was made.
66S(7) [Retrospective effect of decreasing amount payable] An order decreasing a periodic amount payable under the order, or discharging the order, may be expressed to be retrospective to such day as the court considers appropriate.
66S(8) [Subsequent order] If an order (the subsequent order ) decreasing a periodic amount payable under the first order is expressed to be retrospective, amounts paid under the first order that are not payable under the first order as varied by the subsequent order may be recovered in a court having jurisdiction under this Part.
66S(9) [Retrospective order] If an order discharging the first order is expressed to be retrospective to a specified day, amounts paid under the first order since the specified day may be recovered in a court having jurisdiction under this Part.
66S(10) [Relevant matters] For the purposes of this section, the court must have regard to the provisions of Subdivisions B , C and D (to the extent applicable).
66S(11) [Discharge of first order] The discharge of the first order does not affect the recovery of arrears due under the order when the discharge takes effect.
The Applicant and the Respondent in this case both contend that pursuant to s.66S, the Court has power to:
(a)discharge the maintenance order;
(b)discharge the order retrospectively to such day as the Court considers appropriate;
(c)then under s.66S(9) enable a party to recover amounts paid under the order since the specified day, in the discretion of the Court.
The issue is whether s.66S in particular and Division 7 in general applies to the Applicant in this case, who as a result of the parentage testing results is not the biological father of P.
Contrast with the Child Support (Assessment) Act
The Child Support (Assessment) Act 1989 ("CSAA") is not applicable in this case because the parties separated and the child was born before the commencement of the CSAA in October 1989. It is important to draw that distinction because the CSAA provides what is in effect, a statutory code, which includes the ability to order repayments of child support where it is subsequently found there was no liability on the part of the payer, in the discretion of the Court.
The CSAA provides certain circumstances in which a person can be assessed as having a liability for payment of child support for a child. The Act then provides a means for a person who has been found liable to pay child support, but who contends that they are not the parent of the child, to make application for a declaration that the Applicant was not entitled to administrative assessment. This normally includes an Application to a Court exercising jurisdiction under the FLA to make an Order for parentage testing.
If it is established that the liable parent is not the parent of a child, then the Court can make a declaration pursuant to s.107(1) of the CSAA. Section 143 of the CSAA enables child support to be recovered and the Court having jurisdiction under the CSAA, where that person is not liable or subsequently becomes not liable to pay the amount to the other person.
Accordingly, the CSAA clearly provides a code for what is to happen in cases where a liable person turns out not to be the biological parent, and it is quite clear, pursuant to s.143, a Court having jurisdiction under the CSAA, can in its discretion order repayment to the person having made payments pursuant to an assessment.
Jurisdiction under the FLA
The jurisdiction to order child maintenance, and the consequential powers that flow from that, must be found, if exists, in the confines of Division 7 of Part VII of the FLA. Whilst I can find no authority directly on point, the Full Court of the Family Court of Australia, comprising Finn, Kay and Chisolm JJ, dealt with a related matter in Tobin & Tobin [1999] famCA 446; (1999) FLC92-848; 24 fam LR 635.
The issue in Tobin & Tobin concerned the Family Court's jurisdiction under the FLA to make a child maintenance order against the guardian of their non-biological child. The Court held on this point that only parents and step-parents can be liable for child maintenance under the FLA. A step-parent is a person married to a parent of a child whose child lives in their household. In this case the child, P, was born after the parents separated and the issue of a step-parent liability does not arise. They held that a parent is a person who has begotten or borne a child.
The Full Court in Tobin & Tobin set out some of the history of the provisions in the Family Law Act and the Matrimonial Causes Act which proceeded it, in relation to the power to make orders for child maintenance, and they said at paragraph 32
“The Commonwealth enacted the Matrimonial Causes Act 1959. Section 84 empowered the court to make any order it thought proper with respect to the maintenance of a child of the marriage. Under s 6 of the Matrimonial Causes Act " child of the marriage" included adopted children and children of either of the parties who were ordinarily members of the household of the husband and wife. The phrase did not include any broader category of children who were the children of some other person, unless such children were adopted by one or other or both of the parties.
33. While s 66F of the Family Law Act enables any person concerned with the care, welfare or development of the child to apply for a child maintenance order, and while s 66G enables the court to make such child maintenance order as it thinks proper in proceedings for a child maintenance order, s 66B states:
"The principal object of this Division is to ensure that children receive a proper level of financial support from their parents."
Section 66C(1) then provides:
"The parents of a child have, subject to this Division, the primary duty to maintain the child."
34. The only other reference to any person having any duty to maintain a child beyond the parents is that contained in ss 66D, 66M and 66N which provide that a step-parent has a duty to maintain a child if, and only if, a court deems it proper for the step-parent to have that duty. The criteria for determining whether it is proper are those contained in ss 66M N.”
The Full Court go on to determine the question, who then is a parent?, and says at paragraph 38 and 39
“"Parent" is defined under section 60D in the following manner: "a parent in relation to a child who has been adopted means an adoptive parent of the child." Section 60H makes further provision in respect of children born as a result of artificial conception procedures. It creates the relationship of parent and child not by the use of the term "parent", but by deeming the child to be “her child”, “his child”, or “their child” for the purposes of the Act in certain circumstances.”
In paragraph 40 of their judgment the Full Court consider the definition in the Oxford English Dictionary (2nd Ed) of a "parent" which is defined, for these purposes as:
“A person who has begotten or borne a child; a father or mother.”
At par 41 they consider the definition “parent” in the Macquarie Dictionary (3rd Ed 1997) which defines parent to be “a father or mother”.
At paragraph 42 the Full Court say as follows:
“Counsel for the wife urged that we should adopt a broad interpretation of the word "parent" sufficient to include the husband in this case who, although not a biological parent of the child, had assumed parental responsibilities by seeking and being granted orders as to guardianship and custody of the child. In our view, such an interpretation is inconsistent with the expression "parent" as used both in the Family Law Act and the child support legislation. We will deal particularly with the child support legislation shortly, but in respect of the Family Law Act, in our view, the natural meaning of the word "parent" is the first definition given in both the Oxford and Macquarie dictionaries, and the definition "a person who has begotten or borne a child” from the Oxford English dictionary(2nd ed vol 9), which was accepted by Gummow J (in a different context) in Hunt v Minister for Immigration and Ethnic Affairs (1993) 41 FCR 380.”
At paragraph 44 of the judgment the Full Court say:
“There are several other areas of the Family Law Act which would make any broader interpretation of the word "parent" quite problematic. Section 60B speaks of the children having a right to know and be cared for by both their parents. It does not talk of the children having a right to know and be cared for by all of their parents. Section 60B(2) provides that the children have a right to contact on a regular basis with both their parents and with other people significant to their care, welfare and development. It recognises a clear delineation between a parent and a person significant to a child's care, welfare and development. Whilst the term may be capable of being used in different contexts to include broader categories than those of father or mother, in our view, the natural meaning of the word in the context of Part VII Division 7 of a child is the biological mother or father of the child and not a person who stands in loco parentis.”
Thus, the provisions of s.66 of the Family Law Act, upon which the Applicant and the Respondent rely, relate to a child whose parents are the biological parents, step-parents, adoptive parents, or as defined in the Act, parents as a result of artificial conception procedures. In this case, as determined by the parentage testing, the Applicant is not a biological parent of P and he does not come within any of the other categories to which I have referred. He is, effectively, a biological “stranger” to P.
Division 7 of Part VII of the FLA, in s.66S in particular, can only apply to the parents of a child. There are many circumstances in which the Court will order that maintenance orders properly made in relation to the parents of a child should be discharged or varied. In those circumstances, there is a clear jurisdiction for the Court to make an Order for recovery of money. However, those sections can only apply to the parents of the child and, for these purposes, that means the biological parents. The father in this case is not the biological parent of P.
Whilst I can find no direct authority relating to this issue, I note that in the July 2002 edition of the Australian Law Journal, Dr Anthony Dickey QC, a regular commentator on family law, included a comment on "Recompense for Unjustified Payments for Support of a Child".
Dr Dickey considers first the question of recompense for unjustified payments for child support arising under the Child Support (Assessment) Act to which I have referred. He then goes on to consider the position under the Family Law Act 1975:
“The second situation that comes to mind is when a man has been making payments for the support of a child pursuant to a child maintenance order and this order has not been registered with the Child Support Agency. There is no equivalent in section 143 of the Assessment Act and the Family Law Act and there is no other provision in the 1975 act which provides relief for payments made pursuant to a child maintenance order that has been improperly obtained from a person who is neither a parent nor a step-parent of the child.”
He goes on to say:
“There can be no doubt that a child maintenance order obtained in such circumstances can be discharged, though interestingly not under section 66S as an application can only be made under this section by a person "who could apply for a child maintenance order in relation to a child," [See subsection (1)(b)]. Moreover, because the order cannot be discharged under section 66S, any amounts paid pursuant to the order cannot be recovered pursuant to subsection (9). It would accordingly appear that relief to recover payments must be sought in the civil courts.”
This is also the conclusion to which I have come.
Is there power to discharge the orders?
As it is now apparent that the Applicant is not the biological father of P, then there was never any jurisdiction to make an order for maintenance for P against the Applicant. The order is in fact void in law and is a nullity. However, it has long been held that an order of a competent Court must be obeyed whilst it remains in force. The Privy Council in the case of Isaacs v Robertson (1985) AC 97 at page 102 said:
“Contrasting legal concepts of voidness and violability form part of the English law of contract. They are inapplicable in orders made by a court of unlimited jurisdiction in the course of contentious litigation. Such an order is either irregular or regular. If it is irregular, it can be set aside by the court who made it upon application to that court. If it's regular, it can only be set aside by an appellate court upon appeal if there is one to which an appeal lies.”
The same point has been made in Cameron v Cole (1944) CLR 571 at page 590 by the High Court and by Wilson and Dawson JJ in Jackson v Stirling Industries Ltd (1987) 162 CLR 612 at 620 referring to an order made in an erroneous exercise of jurisdiction:
“The principle remains however that the order of a competent court must be obeyed whilst it remains in force.”
Whether or not there is any power to discharge the order under s.66S of Part VII of the Family Law Act, this Court (exercising the same jurisdiction as the Family Court of Australia) has inherent power upon application to it, to discharge an order which has been invalidly made as a result of an erroneous exercise of jurisdiction. Accordingly, I am satisfied that I have the power to discharge the order.
However, the Court has no jurisdiction to deal with the recovery of moneys paid by a parent, in respect of a child, who is not the biological or adoptive parent or for whom a step-parenting order has not been made, as the provisions of the Family Law Act relate only to parents.
I propose, therefore, to make orders which will discharge the existing order and deal with arrears, but as to the Application by the Applicant for the recovery of moneys from the Respondent it will be dismissed. The Applicant is at liberty to pursue whatever remedies he may have available to him in a civil court.
Section 69X(4) of the Family Law Act 1975 entitles the Court to make such order as it considers just in the circumstances in relation to costs incurred for the carrying out of a parentage testing procedure. Having regard to the way in which the matter proceeded, it seems to me it is appropriate to make an order for payment in favour of the Applicant. This is a matter within my discretion but I have taken into account that although the original Order was obtained by subterfuge, a determination of the issue required that a further test be obtained. In the circumstances, this could have been avoided if the mother had made a concession about parentage. I also take into account that the Applicant paid for the cost of the first test and therefore a requirement for the mother to meet the costs of the second would mean that the parties had each been responsible for the cost of a parentage test.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Mardi Jarvis
Date: 5 September 2002
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