HAMPTON & ADDISON

[2015] FCCA 282

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAMPTON & ADDISON [2015] FCCA 282

Catchwords:
CHILD SUPPORT – Declaration that Respondent should be assessed in relation to costs of the Applicant’s child – where Respondent did not attend Court on the hearing of the application.

FAMILY LAW – Paternity – declaration that Respondent is the father of the Applicant’s child – where Respondent did not attend Court – where parties were ordered to submit to DNA testing – where Respondent failed to undertake DNA testing.

PRACTICE AND PROCEDURE – Leave – application for leave to proceed out of time.

Legislation:

Child Support (Assessment) Act 1989 (Cth), ss.29, 30, 33, 106A

Family Law Act 1975 (Cth), ss.69V, 69VA, 69W
Federal Circuit Court Rules 2001, rr.3.05, 25A.06

Applicant: MS HAMPTON

Respondent: MR ADDISON

File Number: SYC 3978 of 2014

Judgment of: Judge Scarlett

Hearing date: 10 February 2015

Date of Last Submission: 10 February 2015

Delivered at: Sydney

Delivered on: 10 February 2015

REPRESENTATION

Solicitor for the Applicant: Ms Cameron

Solicitors for the Applicant: Legal Aid NSW

Respondent: No appearance

ORDERS

1. The Applicant is granted leave to proceed ex parte.

2. The time for filing this Application for a declaration under section 106A of the Child Support (Assessment) Act 1989 is extended to the date of filing of the Application.

3. It is declared in accordance with section 69VA of the Family Law Act 1975 that the Respondent MR ADDISON is the father of the child [X] born on [omitted] 2014.

4. It is declared in accordance with section 106A of the Child Support (Assessment) Act 1989 that the Respondent MR ADDISON should be assessed in relation to the costs of the child [X] born on [omitted] 2014 because the said Respondent is a parent of the child.

IT IS NOTED that publication of this judgment under the pseudonym Hampton & Addison is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3978 of 2014

MS HAMPTON

Applicant

And

MR ADDISON

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the mother of a little girl called [X] for declarations that the Respondent is [X]’s father and that he should be liable for an assessment of child support in respect of the child. [X] was born on [omitted] 2014 and lives with her mother.

Service

1. The Applicant’s solicitor filed an Application in a Case seeking orders dispensing with the requirement for personal service of the Court documents and that service could be effected by posting the documents to the Respondent at his residential address.

2. On 20 October 2014 I made Orders accordingly.

3. The Applicant’s solicitor filed an affidavit of service on 29 October 2014 advising that the Court documents were forwarded to the Respondent in accordance with the Orders.

4. I am satisfied as to service.

Procedural History

1. The substantive Application and affidavit in support were filed on 30 June 2014. An Amended Application was filed on 24 October 2014, seeking leave to proceed out of time.

2. Although the Respondent was served on 29 October 2014, he has not filed a Response or an affidavit. He has not attended Court.

3. On 11 November 2014 I ordered that the Applicant and the Respondent submit to DNA testing under the provisions of section 69W of the Family Law Act 1975 for the purpose of determining whether the Respondent is a parent of the child.

4. The Application was adjourned to today. The Applicant has attended Court, accompanied by her solicitor. The Respondent has not attended Court. He has not sent any message advising that he has been delayed or prevented from attending Court due to any illness, injury or other unforeseen event. As I am satisfied that the Respondent has been given ample time to respond, I have decided that the Application should proceed ex parte.

Evidence and Submissions

1. The Applicant relied on her affidavit of 20 June 2014 and gave short oral evidence. Her solicitor also tendered a printout of an email message from Genomic Diagnostics advising that the Respondent had not paid the fee for his share of the DNA test and so the testing could not take place.

2. The Applicant gave evidence of having had intercourse with the Respondent on [date omitted] 2013 without using any contraception. She deposed that she had also been in a relationship with another man and believed at the time that it was possible that this man may be the child’s father. They had informal DNA testing done, which excluded this man from being the child’s father.

3. As the Applicant had not had a sexual relationship with any other man at the time, and was neither married nor living with another man, she deposed that she is certain the Respondent is the child’s father.

4. The Applicant applied for child support in early April 2014 but her application was refused because the Child Support Registrar was not satisfied that she had supplied sufficient evidence that the Respondent is the child’s father.

5. It is the Applicant’s evidence that she has had the daily care of [X] since her birth.

6. The letter of refusal was dated 14 April 2014. The Application to this Court was filed on 30 June 2014, less than three weeks outside the time prescribed by the Rules.

Parentage Evidence

1. Section 69V of the Family Law Act 1975 (Cth) permits the Court, if the parentage of a child is a question in issue in proceedings under the Act, to make an order requiring any person to give such evidence as is material. The Applicant has given oral and written evidence and the Respondent would have been directed to give evidence had he attended Court.

2. Section 69W of the Family Law Act permits the Court to make a parentage testing order requiring a parentage testing procedure to be carried out.

3. Section 69VA empowers the court not only to decide the issue of parentage of a child after receiving evidence, but to issue a declaration of parentage for the purposes of all laws of the Commonwealth.

Declaration of Parentage

1. I am satisfied from the Applicant’s evidence that the Respondent is the father of the child [X]. I propose to issue a declaration that the Respondent is the father of [X].

Leave to commence proceedings out of time

1. The Applicant seeks leave to bring her Application for a Declaration under section 106A of the Child Support (Assessment) Act 1989 (Cth) outside the time limit prescribed by the Rules. Rule 25A.06 provides that a person must file an application for a declaration under subsection 106(2) of the Act within 56 days of the service on the applicant of a notice given under section 33 of the Act.

2. Rule 3.05 permits the Court to extend or shorten a time fixed by the Rules.

3. I am satisfied that, in all the circumstances, leave should be given to extend the time to the date the Application was filed.

Declaration that a person should be assessed in respect of the costs of the child

1. Section 106A of the Child Support (Assessment) Act 1989 (Cth) permits the Court to make a declaration that a person should be assessed in respect of the costs of the child (i.e. an assessment of child support) where:

   a)the Child Support Registrar has refused to accept an application for administrative assessment of child support under s.30(2) of the Act; and

   b)one of the reasons for the refusal was that the Registrar was not satisfied under s.29 that the person to be assessed was a parent of the child.

Conclusions

1. I am satisfied that the Applicant has established that the Respondent is the father of her child [X], who was born on [omitted] 2014. I am also satisfied that the Applicant has applied for an assessment of child support which was refused because the Registrar was not satisfied that the Applicant had established that the Respondent is a parent of the child.

2. I propose to make a declaration that the Respondent should be assessed in respect of the costs of the child because the Respondent is a parent of the child.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  11 February 2015