Hedwin & Palmer
[2023] FedCFamC2F 1639
•11 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hedwin & Palmer [2023] FedCFamC2F 1639
File number(s): MLC 5374 of 2023 Judgment of: JUDGE BOYMAL Date of judgment: 11 December 2023 Catchwords: FAMILY LAW – Child Support – undefended hearing – exemption from filing FDR certificate – declaration as to parentage – declaration under section 106A of the Child Support Assessment Act Legislation: Family Law Act1975 (Cth) ss 60I, 69VA, 69Y, 117
Child Support (Assessment) Act 1989 (Cth) s 106A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 10.13, 10.26, 10.27, 15.06, 15.19
Cases cited: Allesch v Maunz [2000] HCA 40
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
G v H [1994] HCA 48
Lenova & Levona (Costs) [2011] FamCAFC 141
Medlon & Medlon (No. 6) (Indemnity costs) [2015] FLC 93-664
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158
Division: Division 2 Family Law Number of paragraphs: 75 Date of hearing: 11 December 2023 Place: Melbourne Solicitor for the Applicant: Ms Zahidee, Victoria Legal Aid The Respondent: No appearance ORDERS
MLC 5374 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HEDWIN
Applicant
AND: MR PALMER
Respondent
ORDER MADE BY:
JUDGE BOYMAL
DATE OF ORDER:
11 DECEMBER 2023
THE COURT ORDERS THAT:
1.Pursuant to Rule 15.19 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the applicant be granted leave to proceed on an undefended basis.
2.Pursuant to Rule 4.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the applicant be excused from attending family dispute resolution and filing a family dispute resolution certificate.
3.Pursuant to Section 69VA of the Family Law Act 1975 (Cth) the Court declares that the respondent, Mr Palmer, is a parent of the child, X born in 2022.
4.Pursuant to section 106A(5)(a) of the Child Support (Assessment) Act 1989 (Cth), the Court declares that the applicant, Ms Hedwin, is entitled to an administrative assessment of child support for the child, X born in 2022, because Mr Palmer is a parent of the child.
5.Within 60 days of service of this order the respondent pay the costs of this application fixed in the amount of $2,448.00.
6.Within 7 days of receipt of a sealed copy of these orders the applicant serve a copy of these orders, followed by reasons for judgment once available, to the respondent by:
(a)registered post to B Street, Suburb C; and
(b)email to Mr Palmer.
7.Within 7 days of receipt of a sealed copy of these orders the applicant serve the Child Support Registrar with a copy of these orders.
8.All extant applications be otherwise dismissed.
THE COURT NOTES THAT:
A.Pursuant to Rule 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the Court may vary or set aside a judgment or order made in the absence of a party.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BOYMAL
The applicant, Ms Hedwin, is the mother of X who was born in 2022.
The applicant made an application to Services Australia for the respondent, Mr Palmer, to pay child support for X predicated on the basis that the respondent is the father of X. In late 2022 the applicant’s application was not accepted as Services Australia was not satisfied on the evidence provided that the respondent is the parent of X.
In order to provide further evidence to Services Australia the applicant filed an Initiating Application on 19 May 2023 seeking the following orders on a final basis:
(a)pursuant to section 69VA of the Family Law Act1975 (Cth) (the Act) there be a declaration that the respondent is a parent of X;
(b)pursuant to section 106A(5)(a) of the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act) there be a declaration that the applicant is entitled to administrative assessment of child support for the child because the respondent is a parent of X; and
(c)the respondent pay the applicant’s costs of this application, being $2,448.00, noting she is represented by Victoria Legal Aid.
As preliminary issues, the applicant also sought that she:
(a)be granted leave pursuant to Rule 15.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (the Rules) to file and proceed with her Initiating Application out of time; and
(b)be exempt from filing a family dispute resolution certificate pursuant to Rule 4.01 of the Rules.
The mother filed an Outline of Case on 8 November 2023. She relies on her affidavit in support and Genuine Steps Certificate filed on 19 May 2023, an affidavit by her solicitor filed on 6 November 2023, four affidavits of service, and three acknowledgements of service.
For the following reasons the orders sought by the applicant are made.
LEAVE TO PROCEED ON AN UNDEFENDED BASIS
The applicant is represented by her solicitor.
Services Australia was served with the applicant’s initiating documents on 30 May 2023.
There was no appearance by the respondent when court commenced at 10.00 am on 11 December 2023. The respondent was called outside court at 10.05 am. There was no answer to the call by either the respondent or a legal representative on his behalf. The applicant seeks leave to proceed with her application on an undefended basis.
After considering the following I am satisfied that the respondent has notice of today’s hearing and the orders sought by the applicant.
The respondent was personally served with the applicant’s initiating documents on 19 June 2023. The respondent appeared in person at the first return date on 17 July 2023. The Judicial Registrar adjourned the matter to 18 September 2023 and made consent orders including:
(a)pursuant to s.69W(1) of the Family Law Act 1975, the applicant and the respondent do everything required for a DNA parentage testing procedure to be carried out on each of them and on X, born in 2022 for the purpose of obtaining information to assist in determining the child’s parentage; and
(b)ancillary orders in relation to the parentage testing procedure, including the payment of costs of the testing.
The order noted that the respondent intended to seek legal representation and advice during the period of the adjournment.
The Judicial Registrar dealt with one of the preliminary matters sought by the applicant. An order was made by consent that pursuant to rule 15.06 of the Rules, the parties be granted leave to proceed out of time.
The hearing date listed for 18 September 2023 was administratively changed to 14 September 2023. On 14 September 2023 the applicant was represented by her solicitor. The respondent appeared in person. On 14 September 2023 the Judicial Registrar adjourned the matter for hearing before me on 13 November 2023 and made orders including:
(a)the respondent file and serve a Notice of Address for Service by no later than 4.00 pm on 21 September 2023;
(b)the parties file and serve an Outline of Case and a Minute of Orders sought no later than 4.00 pm on 8 November 2023; and
(c)the respondent appear and/or be legally represented on the adjourned date.
The orders made on 14 September 2023 noted that:
(a)the respondent failed to attend for DNA parentage testing as required pursuant to the orders of 17 July 2023;
(b)the respondent attributed his failure to attend for DNA parentage testing to “car trouble”; and
(c)the respondent confirmed he would attend for DNA parenting testing as soon as practicable.
On 13 November 2023 the applicant was represented by her solicitor. There was no appearance on behalf of the respondent. The failure of the respondent to appear was not surprising. At 5.23 pm on Sunday 12 November 2023 he advised chambers via email as follows:
Dear associate judge Boymal
Regarding tomorrow's court date for the matter of [Hedwin/Palmer] on the 13/11 I would like to request this date be adjourned for another date, I only wish for this as I'm attending a funeral of a close friend and will be unavailable.
Thank you for you're (sic) consideration.
Kind Regards [Mr Palmer].
As of 13 November 2023 the respondent had not undertaken DNA parentage testing nor filed his Notice of Address for Service, Outline of Case or a minute of orders sought as prescribed by the 14 September 2023 orders.
On 13 November 2023 I adjourned the matter for final hearing before me to 11 December 2023. I also made orders requiring the respondent to:
(a)file and serve any affidavit(s) upon which he seeks to rely on or before 4.00 pm 27 November 2023;
(b)file and serve an outline of case 2 days prior to the final hearing; and
(c)communicate with the applicant’s solicitor on or before 4.00 pm Wednesday 15 November 2023 to arrange a DNA parentage testing procedure.
The 13 November 2023 orders further stipulated that should the respondent fail to attend, either in person or through legal representation on the adjourned date of 11 December 2023, the applicant would be at liberty to apply to proceed on an undefended basis.
Chambers provided a sealed copy of the 13 November 2023 orders to the respondent via email to Mr Palmer at 12.58 pm on 13 November 2023. The applicant’s solicitor served a sealed copy of the 13 November 2023 order on the respondent by electronic communication on 13 November 2023.
The applicant’s solicitor has had no communication with the respondent since 13 November 2023.
Rule 15.19(1)(a) and (e) of the Rules provides that if a party to a proceeding is absent from a court event the court may adjourn the court event to a specific date or generally, or proceed with the hearing generally or in relation to any claim for relief in the proceeding.
Rule 15.19(2) of the Rules provides that if a party to a proceeding is absent from a court event, the court may also make an order of the kind referred to in subrule 10.27(1) or (2) or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the court thinks just.
Rule 10.26(2) (c) and (g) of the Rules respectively provides that a respondent is in default if the respondent fails to comply with an order of the court or fails to defend the proceeding with due diligence. Rule 10.27(2)(b) of the Rules provides that if a respondent is in default the court may give judgment or make any other order against the respondent.
The respondent has failed to comply with the order requiring him to file and serve responding material. The respondent has failed to appear this day. The respondent has been afforded the opportunity to attend but has not availed himself of that opportunity. Affording the opportunity to attend is all that the law requires.[1]
[1] Allesch v Maunz [2000] HCA 40 at [38].
Rule 1.04 of the Rules sets out the overarching purpose of the Rules which is “to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible”.
In Allesch v Maunz [2000] HCA 40 Justice Kirby said at [39] - [40]:
Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted), the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.
In Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, the majority of the High Court said at [114]:
…delay and costs are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants… It would impact upon other litigants seeking a resolution of their cases...
The applicant is represented by Victoria Legal Aid. Public funds are subsidising the legal costs of this litigation on behalf of the applicant. The applicant has the full-time care of X. She is the only available parent to X on both a practical and emotional level. She is also solely providing for X’s financial needs. She is unable to have a child support assessment undertaken so as to receive financial assistance from the respondent until this matter is finalised. The objects of the Assessment Act are to ensure that children receive a proper level of financial support from each of their parents.[2] There is no certainty that the respondent will attend an adjourned hearing date of this matter. There is no certainty that the respondent will submit to a DNA parentage testing procedure. As past behaviour is indicative of future conduct, and taking into account the respondent’s repeated failure to comply with court orders which included that he undergo a DNA parentage testing procedure, I consider it is unlikely that the respondent will attend any adjourned hearing date or submit to any DNA parentage testing procedure in the future.
[2] Child Support (Assessment) Act 1989 (Cth) section 4.
In balancing the considerations underlying the principles of procedural fairness and natural justice, the requirement to do justice to all the parties, the overarching purpose of the Rules, the objects of the Assessment Act and the authorities referred to herein, I do not propose to provide a further adjournment of the matter. I grant leave to the applicant to proceed on an undefended basis.
I note that rule 10.13(1) of the Rules has an ameliorating effect on the imposition of the orders made in the absence of the respondent by providing that the court may at any time vary or set aside an order if it was made in the absence of a party. The respondent is able to make an application to the court to do so.
EXEMPTION FROM FILING AN FDR CERTIFICATE
Ordinarily, a court must not hear an application for a Part VII order in relation to a child unless the applicant files a certificate given by a family dispute resolution practitioner.[3] The applicant did not file such a certificate when she commenced these proceedings.
[3]Family Law Act 1975 (Cth) section 60I(7).
The applicant seeks an exemption from filing a family dispute resolution certificate.
A family dispute resolution practitioner may give a certificate of a kind as set out in section 60I(8) of the Act. The obtaining of such a certificate is predicated on the basis that a family dispute resolution event has been organised and the parties either attended or did not attend or could not continue to attend.
For the following reasons I am satisfied that the applicant be exempt from attending a family dispute resolution event and that it is appropriate for the matter to be heard and determined without the parties having participated in such an event:
(a)the proceeding is in relation to a discrete issue of the parentage of X;
(b)the outcome of this matter is absolute. The respondent is either the father or is not the father of X. There is no room for compromise;
(c)the respondent has failed to attend two court hearings. He has also failed to undertake DNA parentage testing. It is unlikely he would attend a family dispute resolution event; and
(d)the applicant has already taken genuine steps to resolve the matter without resorting to contested litigation.
As no such family dispute resolution event has been organised and as I have exempted the applicant from attending such an event, a family dispute resolution certificate cannot be completed and filed. Accordingly, the applicant is exempt from filing a family dispute resolution certificate.
DECLARATION AS TO PARENTAGE
The applicant relies on the following evidence to support her assertion that the respondent is the father of X.
The applicant and respondent commenced living in the same share house in late 2021. Approximately one week later the parties first had sexual intercourse in 2021, and commenced a casual sexual relationship which endured for several months.
In 2021 the applicant suspected she was pregnant and confirmed the pregnancy by an at-home test and subsequently via a urine test conducted by her doctor. The doctor advised the applicant she was pregnant.
The applicant asserts she did not have sexual intercourse with anybody else during the time she was having a sexual relationship with the respondent.
The applicant informed the respondent about the pregnancy in 2021. The applicant asserts that the respondent was surprised and did not want to be a father. However, the parties remained in a relationship for a further month. The respondent attended the hospital for X’s birth.
The applicant asserts the respondent visited X once or twice shortly after her birth. However, the respondent refused to sign the Birth Registration Statement. The last time the parties had contact was in late 2022 when the applicant requested that the respondent sign the documents pertaining to paternity.
As canvassed above, the applicant is certain that the respondent is X’s father as she did not have sexual intercourse with anyone else during the time the parties were in a relationship. When the applicant and the respondent had sexual intercourse they were not using contraceptives.
The applicant’s evidence is unchallenged. I acknowledge the email dated 12 November 2023 to chambers. However, the contents of this email does not include any denial by the respondent that he is X’s father or refute or rebut any part of the applicant’s evidence. Nor is there any indication in the email that he will undergo the DNA parentage testing procedure.
An order was made with the consent of the respondent on 17 July 2023 that he undertake a DNA parentage testing procedure.
Appointments were arranged on two occasions by the applicant’s solicitor for the respondent to attend for the testing. The respondent did not attend on either occasion. The orders made on 14 September 2023 noted that the respondent attributed his failure to attend for parentage testing due to car trouble and confirmed that he would attend as soon as practicable. The respondent has failed to provide any explanation as to why he has not attended to parentage testing since late 2023. Again, the respondent’s email of 12 November 2023 does not indicate that he will attend for parentage testing.
The order for the respondent to undergo DNA parentage testing was discharged by me on 13 November 2023. Nonetheless, the respondent has failed to comply with the DNA parentage testing order made on 17 July 2023 until its discharge.
I am satisfied that the respondent has failed to comply with the order made on 17 July 2023 that he undertake DNA parentage testing.
Although there is no penalty for non-compliance with a parentage testing order the court can draw such inferences as appears just in the circumstances from the refusal to comply with the order.[4]
[4]Family Law Act 1975 (Cth) section 69Y.
If a party disputes paternity and fails to comply with an order for DNA testing, a “just” inference is able to be drawn that it is more probable than not that the outcome of the court ordered test would not have been favourable to the party who disputes paternity.[5]
[5] G v H [1994] HCA 48.
The respondent has been given the opportunity to put the issue of paternity beyond doubt by undertaking the court ordered parentage testing procedure. On 16 March 2023 and 6 April 2023 the respondent communicated with the applicant’s solicitor and agreed to sign consent orders to settle the matter. The applicant relies on persuasive evidence to support that the respondent is X’s father. I am satisfied that the inference that can be drawn from the respondent’s failure to submit to the court ordered parentage testing procedure is that the outcome of the test would not have been favourable to the respondent.
Considering all of the above I am satisfied that there is no possibility of anyone else being X’s father other than the respondent.
I refer again to the objects of the Assessment Act. Unless a declaration as to X’s parentage is made the applicant will be unable to provide further evidence to Services Australia that the respondent is a parent to X and will not be able to obtain a child support assessment.
Accordingly, a declaration of parentage pursuant to section 69VA of the Act that the respondent is a parent of the X is made.
CHILD SUPPORT APPLICATION
The applicant as a biological parent of X is a person who may apply for a child support assessment.
A declaration pursuant to section 69VA of the Act is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.[6]
[6] Family Law Act 1975 (Cth) section 69VA.
A declaration that the respondent is the father of X will be made as a consequence of my finding that the respondent is X’s father.
I am satisfied that the applicant is a person entitled to an administrative assessment of child support for X pursuant to section 106A(5)(a) of the Assessment Act against the respondent because the respondent is a parent of X.
It is proper for there to be an assessment of child support for X as between the applicant and respondent as they are both X’s parents.
Accordingly, the declaration pursuant to 106A(5) of the Child Support (assessment) Act 1989 (Cth) is made.
APPLICATION FOR COSTS
Section 117 of the Act governs the question of costs. The general rule found in section 117(1) of the Act is that each party is to bear their own costs.
Section 117(2) of the Act enables the court to depart from the general rule and to make such order for costs as the court considers just if the court is of the opinion that there are circumstances that justify it doing so. A preliminary consideration to the making of an order for costs is the court finding justifying circumstances. The discretion to order costs is a broad discretion.
No one factor under section 117(2A) of the Act prevails over any other factor. The weight to be ascribed to each of the matters in section 117(2A) of the Act is a matter of discretion for the court.[7] There is nothing to prevent any one factor in section 117(2A) of the Act being the sole determinant for an order for costs.[8]
[7] Medlon & Medlon (No. 6) (Indemnity costs) [2015] FLC 93-664.
[8] PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158.
I accept the uncontested evidence of the applicant in relation to her financial circumstances.
I have no evidence in relation to the respondent’s financial circumstances. However, even if the respondent is impecunious or of limited financial means, such impecuniosity is not necessarily a barrier to the making of a cost order against the respondent where a costs order is otherwise warranted.[9]
[9] Lenova & Levona (Costs) [2011] FamCAFC 141.
The applicant is represented by Victoria Legal Aid. These proceedings have been funded by public taxpayer funds. That the applicant is in receipt of legal aid is not a barrier to a costs order being made.
The respondent had been provided with the opportunity to resolve the matter without the need for contested proceedings.
I consider that a matter of this type is one where the costs of the proceedings should be transferred from the taxpayer to a party. The applicant is not in a position to repay Victoria Legal Aid.
The respondent has failed to comply with the orders requiring him to file responding material and to undertake DNA parentage testing. He has failed to attend court hearings in relation to the matter on two occasions. His non-engagement has meant that Victoria Legal Aid, in other words the taxpayer, has subsidised the applicant’s legal costs which may have otherwise been avoided.
The applicant has been wholly successful in her application.
Considering all of the above matters separately and collectively, I am satisfied that there are circumstances justifying that an order for costs in relation to the proceedings be made against the respondent and that a costs order against the respondent is just.
The quantum of $2,448.00 sought to be paid is the quantum of the grant of assistance to the applicant. I am satisfied that the sum is the proper figure to be paid.
The applicant seeks that the costs be paid by the respondent within 28 days. I will give the respondent 60 days after service of the order upon him as the court is unaware of the respondent’s financial situation.
Orders for service upon the respondent and Services Australia are made.
Declarations and Orders are made as set out.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Boymal. Associate:
Dated: 11 December 2023
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