G and N - [2002] FMCAfam 281

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
The Child Support (Assessment) Act 1989, ss.107(1), 143
Matrimonial Causes Act 1959, s.84

Tobin & Tobin [1999] famCA 446; (1999) FLC92-848; 24 fam LR 635
Isaacs v Robertson (1985) AC 97
Jackson v Stirling Industries Ltd (1987) 162 CLR 612

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…

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.

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Details

Case: [2002] FMCAfam 281
Decision Date: 22 August 2002

CaseChat Overview and Summary

G and N involved a dispute concerning maintenance and parentage. The matter was heard in the Family Court of Australia. The Applicant, A G, sought a discharge of maintenance payments made for their child, P W, born in 1986, following parentage testing that excluded A G as the biological father of P W. Additionally, the Applicant sought reimbursement from the Respondent for the costs of the parentage testing.

The court had to determine whether the Applicant should be discharged from the obligation to pay maintenance and whether the Respondent should reimburse the Applicant for the costs of the parentage testing. These issues hinged on the outcome of the parentage testing and its implications for the existing maintenance order.

The court found that the results of the parentage testing established that A G was not the biological father of P W, leading to the discharge of the maintenance obligation. The court also held that the Respondent should reimburse the Applicant for the costs of the parentage testing, as established by the evidence provided. Consequently, the court dismissed all other outstanding applications.

The court's orders reflect the findings based on the parentage testing results. The maintenance order was discharged, and the Respondent was directed to pay the costs of the parentage testing within a specified timeframe. All other applications were dismissed and removed from the list of cases awaiting finalisation.

Orders

Orders of the court

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

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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