JAMISON & HANLEY

Case •

[2013] FMCAfam 218

•

12 March 2013

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JAMISON & HANLEY [2013] FMCAfam 218

CHILD SUPPORT – Declaration – costs of child.

FAMILY LAW – Parentage – declaration that respondent is the father of the applicant’s child.

PRACTICE AND PROCEDURE – Leave to file application out of time.
Child Support (Assessment) Act 1989 (Cth), s.106A
Family Law Act 1975 (Cth), ss.69VA, 69W
Federal Magistrates Court Rules 2001 rr.3.05, 13.03C, 25A.06
Applicant: MS JAMISON
Respondent: MR HANLEY
File Number: NCC 3233 of 2011
Judgment of: Scarlett FM
Hearing date: 12 March 2013
Date of Last Submission: 12 March 2013
Delivered at: Sydney
Delivered on: 12 March 2013

REPRESENTATION

Solicitor for the Applicant: Ms Cole
Solicitors for the Applicant: Legal Aid NSW
The Respondent: No appearance

ORDERS

  1. Pursuant to Rules 3.05 and 25A.06 of the Federal Magistrates Court Rules 2001, the time in which the Applicant has to file a declaration pursuant to s.106A Child Support (Assessment) Act 1989 be extended to the date her Initiating Application was filed, being 14 December 2011.

  2. A declaration that pursuant to s.69VA of the Family Law Act 1975, the Respondent Mr Hanley is the father of the child [X] born [in] 2008.

  3. A declaration that pursuant to s.106A of the Child Support (Assessment) Act 1989 the Respondent Mr Hanley should be assessed in relation to the costs of the child [X] born [in] 2008 because the Respondent is a parent of the child.

  4. The Respondent Mr Hanley pay to Legal Aid NSW the amount of $275.00 (being the Applicant’s share of the DNA parentage testing report) within 28 days of these Orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

NCC 3233 of 2011

MS JAMISON

Applicant

And

MR HANLEY

Respondent

REASONS FOR JUDGMENT

Application

  1. This is an Application by the Mother of a child for a declaration that the Respondent is the father of her child. The declaration is necessary for her to satisfy the Child Support Agency that she is entitled to a Child Support Assessment. The Applicant also requires leave to commence the proceedings out of time.

  2. The parties participated in DNA testing to determine the child’s parentage and a report dated 17th January 2013 has stated that the Respondent is 9,236,955 times more likely to be the father of the child than an unrelated man chosen at random from the Australian Caucasian population. 

Background

  1. The parties commenced their relationship on 7th October 2007 and it continued until about May 2007. The relationship included sexual intercourse. The Applicant discovered that she was pregnant in about April 2007. She told the Respondent. She deposed in her affidavit sworn on 5th December 2011 that the Respondent wanted to meet her but she did not want to meet him and she never saw him again.

  2. On [date omitted] 2008 the Applicant gave birth to a girl whom she named [X]. The Applicant contacted the Respondent and told him about the child’s birth.  

  3. It was not until 2011 that the Applicant applied for an assessment of child support. On 6th July 2011 the Child Support agency refused to accept the application on the bases that:

    ·The Respondent was not a resident of Australia at the time of application

    ·The Applicant had not supplied acceptable information that the Respondent was the father of the child [X].

  4. The Applicant commenced proceedings by filing an Application and a supporting affidavit at the Newcastle Registry of the Court on 14th December 2011.

  5. The Application was returnable on 15th May 2012. On that day Terry FM transferred the Application to the Sydney Registry as the Applicant had taken up residence in Sydney and the Respondent was believed to be residing in Sydney.

  6. On 14th August 2012 I made Orders dispensing with the requirement for personal service on condition that copies of the documents were sent by electronic mail to the Respondent’s email address and copies of the documents were sent by ordinary post to relatives of the Respondent who were living in a suburb of Sydney.

  7. On 9th October 2012 the parties attended Court. They entered into Consent Orders that they should submit to DNA parentage testing under the provisions of s.69W of the Family Law Act.

  8. The parties undertook the DNA testing.

  9. The Respondent did not attend Court on subsequent occasions, 20th November 2012, 11th February 2013 and today. In light of the Respondent’s failure to appear the Applicant now seeks to proceed with the Application under the provisions of Rule 13.03C.

Evidence

  1. The Applicant relies on the following:

    a)Her Initiating Application filed on 14th December 2011;

    b)Her affidavit sworn on 5th December 2011; and

    c)The affidavit of Sally May Cole, solicitor, affirmed on 5th March 2013.

  2. The Applicant gave brief oral evidence confirming the truth of the statements in her affidavit.

The law to be applied

  1. Section 69VA of the Family Law Act provides that as well as deciding the issue of the parentage of a child, the Court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.

  2. Section 69W of the Family Law Act empowers the Court to make an order requiring a parentage testing procedure to be carried out in cases where the parentage of a child is in issue.

  3. Under s.106A of the Child Support (Assessment) Act, a party may apply to a court for a declaration that a person should be assessed in respect of the costs of the child because the person is a parent of the child. However, to bring an application, the applicant must satisfy this requirement:

    (1)    This section applies if:

    (a)the Registrar refuses to accept from an application for administrative assessment of child support for a child under subsection 30(2); and

    (b)one of the reasons for the Registrar so refusing was that the Registrar was not satisfied under section 29 that a person who was to be assessed in respect of the costs of the child is a parent of the child.

  4. In such a case, the applicant may apply under s.106(2) for a declaration that the person should be assessed in respect of the costs of the child because the person is a parent of the child.

  5. However, the application must be made within the prescribed time or leave of the Court must be sought. Subsection (3) provides:

    (3)    The application must be made within:

    (a)the time prescribed by the applicable Rules of Court; or

    (b)such further time as is allowed under the applicable Rules of Court

  6. Rule 25A.06 prescribes that an application must be made within 56 days of service of a notice under (in this case) s.33 of the Act. However, Rule 3.05 allows the Court to extend the time.

Conclusions

  1. The Respondent has not appeared and there is no explanation for his absence. Ms Cole deposes in her affidavit that she spoke to him on 24th January 2013 and he provided her with his new residential address. She states that she sent him some draft consent orders but did not receive any response from him.

  2. I am satisfied that the Respondent was aware of the Court date and what was required of him. It is appropriate to proceed with the hearing generally.

  3. The Applicant’s affidavit shows that the Child Support Agency wrote to her on 6th July 2011, advising that her application was not accepted. She objected to that decision but was informed by a letter dated 23rd August 201 that her objection was invalid because the decision to which she had objected did not carry objection rights.

  4. The Applicant deposed that she did not apply to the Court earlier because she did not have an address for the Respondent.

  5. I am satisfied that leave to commence out of time should be granted and the time will be extended to 14th December 2011, the date of her Application.

  6. I am satisfied from the evidence of the Applicant and from the DNA that the Respondent is the child’s father and I propose to make the declarations sought.

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

Associate: 

Date:  14 March 2013

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