Henning and Henning
[2012] FMCAfam 1119
•18 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HENNING & HENNING | [2012] FMCAfam 1119 |
| CHILD SUPPORT – Declaration that parent not a person to be assessed – child maintenance application – poorly prepared cases – no evidence of proceedings against biological father of child. |
| Child Support (Assessment) Act1989, ss.5, 107 Family Law Act1975, ss.4, 60F, 66B, 66C, 66M, 69R |
| Tobin & Tobin [1999] FamCA 446 |
| Applicant: | MR HENNING |
| Respondent: | MS HENNING |
| File Number: | BRC 4657 of 2012 |
| Judgment of: | Coates FM |
| Hearing date: | 31 August 2012 |
| Date of Last Submission: | 31 August 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 18 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Self represented |
| Solicitors for the Respondent: | Carswell & Company |
ORDERS
That the court declares that pursuant to s.107 of the Child Support (Assessment) Act 1989 the applicant, Mr Henning is a person who should not be assessed in respect of the costs of the child, [X] born [in] 2006 because the applicant is not a parent of the child.
That the Response filed 25 July 2012 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Henning & Henning is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BUNDABERG |
BRC 4657 of 2012
| MR HENNING |
Applicant
And
| MS HENNING |
Respondent
REASONS FOR JUDGMENT
Background
This is self-prepared application of Mr Henning, wanting child support for [X] born [in] 2006, “cancelled”. I use the word which the applicant has used.
What he actually wants is to be relieved of child support obligations in relation to the child and reimbursed for monies paid by way of child support. That can be achieved by making a declaration pursuant to s.107 of the Child Support (Assessment) Act 1989 that the applicant is not a person to be assessed in respect of the costs of the child.
The applicant sought a stay of child support on his aged pension by the Child Support Agency, an order I did not grant at the hearing on 31 August 2012, because submissions in both cases were not extremely informative as to the law to be applied.
The applicant’s material is very sparse and I learned more of the history during submissions and evidence. Because the applicant was self-represented, it was the best the evidence got.
The mother of the child has responded, that pursuant to s.66M(2) of the Family Law Act 1975 (“the Act”) she seeks an order that the applicant “continue to pay child support for the child of the relationship”. The response appears to be incorrect. On its face it appears to seek continued payment by the applicant of child support, which occurs under the child support acts, when in fact s.66M is a regime of a different nature.
The actual section is as follows:
“(1) As stated in section 66D, a step-parent of a child has a duty of maintaining a child if, and only if, there is an order in force under this section.
(2) A court having jurisdiction under this Part may, by order, determine that it is proper for a step-parent to have a duty of maintaining a step-child.
(3) In making an order under subsection (2), the court must have regard to these (and no other) matters:
(a) the matters referred to in sections 60F, 66B and 66C; and
(b) the length and circumstances of the marriage to, or relationship with, the relevant parent of the child; and
(c) the relationship that has existed between the step-parent and the child; and
(d) the arrangements that have existed for the maintenance of the child; and
(e) any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.”
As to background, the applicant found out that the child was not his biological child, a state of affairs admitted by the respondent, Ms Henning.
Like the applicant’s material, the respondent did not state a great deal in her evidence-in-chief. She said the parties married [in] 2005 and the child was born [in] 2006 and the parties separated in or about April 2011.
The respondent did not receive child support payments at separation and she said because she was not aware she was entitled to child support payments.
She subsequently made an application and for the period 12 July 2011 to October 2012, the Child Support Agency assessed the applicant and ordered $14.18 be paid per fortnight by way of child support.
As to relevant circumstances addressed in s.66M(3), the respondent said that the applicant has treated the child as his own and was a loving father involved in his daily care until separation.
As to maintenance of the child, as stated, the respondent said she did not claim child support.
As to special circumstances, the child has now been diagnosed with Autism Spectrum Disorder and co-morbid ADHD. The respondent attached a letter from a Dr K, from the Queensland Health Department, confirming that. That undated correspondence, from the [omitted] Health District, states that the child is on five milligrams of Ritalin and three milligrams of Melatonin a day.
That the applicant was not the father was confirmed in a DNA test.
On learning this, the applicant took steps and succeeded in having his name removed from the birth certificate. This, in my view, removes the presumption of parentage stated at s.69R of the Act when a persons name entered on such a document.
I was somewhat baffled by what was actually being sort by the mother, other than under s.66M a child maintenance order be made. I was not sure whether it was being argued that the father was not an eligible person to be paying child support under the child support acts.
I will deal with that issue first.
In Tobin & Tobin [1999] FamCA 446, it was held that child support under the child support acts was limited to parents defined at s.5 of the Child Support (Assessment) Act 1989, which states:
“"parent" :
(a) when used in relation to a child who has been adopted--means an adoptive parent of the child; and
(b) when used in relation to a child born because of the carrying out of an artificial conception procedure--means a person who is a parent of the child under section 60H of the Family Law Act 1975; and
(c) when used in relation to a child born because of a surrogacy arrangement--includes a person who is a parent of the child under section 60HB of the Family Law Act 1975.”
That definition does not cover a step-parent, although I have no doubt that the applicant is a step-parent within the meaning of the Family Law Act 1975, given the definition at s.4 of that Act as being:
“step-parent, in relation to a child, means a person who:
(a) is not a parent of the child; and
(b) is, or has been, married to or a de facto partner (within the meaning of section 60EA) of, a parent of the child; and
(c) treats, or at any time while married to, or a de facto partner of, the parent treated, the child as a member of the family formed with the parent.”
I was not taken in submission to these issues.
However, I need to make a decision, so on that basis and on the evidence I can and will make a declaration under s.107 of the Assessment Act, that the applicant is a person who should not be assessed in respect of the costs of a child because the person is not the parent of the child.
That brings me to the respondent’s application, for an order for child maintenance under the Family Law Act 1975.
I was also satisfied, on the applicant’s own evidence, that he fondly looked after the child and still had kind regard for him, but had cut ties with the child, only seeing him when the mother brought him to his house.
The applicant said that the situation is not the child’s fault and is too young to understand the situation.
The applicant denied all of the times that the respondent alleged that the child had spent with him since separation, however, in the limited manner of the cross-examinations, I am prepared to make a finding on the evidence I heard that the applicant does not regard the child as own biological child and that he wants nothing to do with the child because of the situation where he is not the natural father of the child. This is despite any previous treatment of the child as his own.
But when I have regard to ss.60F, 66B & 66C of the Act, the real issue is whether the applicant, who is receiving an aged pension, can afford to keep up the payments for the child.
Both parties have had a property settlement under Orders made by this court by consent on 4 April 2012 where the applicant kept real property and paid the respondent the sum of $40,500. I was not told what she has done with her share of the property settlement and what resources she had available to her now.
The applicant has real property valued at, he told me, $190,000. I accept that as the value even though there is no valuation before the court.
This brings to a consideration of the objects at s.66B of the Act. The section states:
“(1) The principal object of this Division is to ensure that children receive a proper level of financial support from their parents.
(2) Particular objects of this Division include ensuring:
(a) that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and
(b) that parents share equitably in the support of their children.”
Obviously what I am dealing with here is the applicant’s property and financial resources and on his terms, whether he can afford to keep up the payments because he only receives the aged pension, in circumstances where he does not want a relationship with the child, but had one in the past.
I also do not have a costs schedule for the child and other than what the respondent stated at section N of her financial statement, the evidence she presented was at its most basic, and did not address what needed to be addressed in s.66B. Nor did cross-examination of the applicant.
Although not taken to the onus, it appears to me that the onus is on the person claiming a child maintenance order and this was simply not discharged.
Having said that, in the applicant’s case I was not taken to the amount he wanted repaid, either the full amount he has paid or part of the amount, nor was I taken to evidence of the respondent that she could afford to repay the sum. To intervene at that stage for either party, in my view, would most definitely be unfair to the other party. Although I can see the shortcomings in each case, as I am dealing with money, to raise the issue inevitably means I have given the appearance of judicial support to one side or the other and that works an unfairness to the “losing” party. That is how I viewed the evidence before me.
There is another relevant issue apparent here, which in my view of major significance, who is the father of the child and has any application been made against the father? No evidence and no disclosure was given of this issue by the respondent in circumstances where I would consider this to be a very relevant matter.
Lastly, there is an issue of delay. There appears to me to be a delay in the bringing of this application and no explanation was stated as to the cause.
On the poorly prepared cases which are before me, I will make the declaration that the applicant seeks as to not being liable for child support under the child support acts and I will dismiss the respondent’s case for child maintenance. I do not intend making an order for repayment of monies which have been paid to the respondent, because neither party addressed the issue adequately, leaving it to the court to guess what has occurred. The court cannot work in that way and as these are civil proceedings, apart from understanding the cases, there is no lawful way I can assist one case over the other. That embraces the public policy inherent in the jurisdiction, that parties run their own cases and are expected to present enough evidence for determination of the matter. Obviously if the Child Support Agency is holding money, then it would be returned to the applicant. Further, there was some evidence that at a time past, the father emotionally cared for the child.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Coates FM
Date: 18 October 2012
0
0
2