Johnston and Hayward

[2014] FCCA 820

FEDERAL CIRCUIT COURT OF AUSTRALIA

JOHNSTON & HAYWARD [2014] FCCA 820

Catchwords:
CHILD SUPPORT – Application for declaration under s.106A(2) of the Child Support (Assessment) Act 1989 (Cth) – whether the mother should be given leave to proceed with the application out of time – where the effect of giving leave would be to create arrears of child support – where mother made two applications for assessment of child support – where first application refused both on the basis of lack of evidence that the mother was the child’s parent and lack of evidence that the Respondent was the child’s father – where second application refused because of lack of evidence that the Respondent was the child’s father – leave not required for application based on second refusal letter because application in time.

EVIDENCE – Letter marked “without prejudice” annexed to affidavit in support of application – where respondent consented to letter being adduced into evidence – letter a communication between persons in dispute in connection with an attempt to negotiate a settlement of a dispute under Evidence Act 1995 (Cth), s.131(1).

Legislation:

Child Support (Assessment) Act 1989 (Cth), ss.3, 29, 33, 106A

Evidence Act 1995 (Cth), s.131
Family Law Act 1975 (Cth), ss.69VA, 69W
Federal Circuit Court Rules 2001, rr.3.05, 25A.06

Cases cited:
Re Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344; 58 ALR 305
Jordan & Fielding [2013] FCCA 725 followed
Korean Airlines v Australian Competition & Consumer Commission (No.3) [2008] FCA 701; (2008) 247 ALR 781

Applicant: MS JOHNSTON

Respondent: MR HAYWARD

File Number: SYC 7415 of 2013

Judgment of: Judge Scarlett

Hearing date: 15 April 2014

Date of Last Submission: 15 April 2014

Delivered at: Sydney

Delivered on: 30 April 2014

REPRESENTATION

Solicitor for the Applicant: Ms Maitland

Solicitors for the Applicant: Legal Aid NSW

Solicitor for the Respondent: Ms Jenkins

Solicitors for the Respondent: Broun Abrahams Burreket

ORDERS

1. It is declared in accordance with section 69VA of the Family Law Act 1975 that the Respondent MR HAYWARD is the father of the child Y born on (omitted) 2012.

2. It is declared in accordance with paragraph (a) of subsection 106A(2) of the Child Support (Assessment) Act 1989 that the Respondent MR HAYWARD is to be assessed in respect of the costs of the child Y born (omitted) 2012 because the said Respondent is a parent of the child.

3. THE COURT NOTES that on 29 November 2013 the Child Support Registrar refused to accept an application for administrative assessment of child support for the child Y and notified the Applicant MS JOHNSTON in writing in accordance with section 33 of the Child Support (Assessment) Act 1989.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7415 of 2013

MS JOHNSTON

Applicant

And

MR HAYWARD

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application by the mother of a child called Y who was born on (omitted) 2012 for an order that the Child Support Registrar should reconsider the application for an assessment of child support against the Respondent. The Mother seeks leave for an extension of time so that she might rely on a refusal decision by the Child Support Registrar on 31^st January 2013 or, in the alternative that she might rely on a refusal decision by the Registrar on 29^th November 2013.

2. The Respondent, by his Response filed on 10^th April 2014, consents to a declaration under s.69VA of the Family Law Act 1975 (Cth) that he is the father of the child Y but opposes the mother being given leave.

Issue

1. The issue between the parties is that the Respondent will consent to a declaration that he is the child’s father, which will be sufficient to enable the Applicant to make another application for child support under s.29(c)(i) of the Child Support (Assessment) Act 1989 (Cth), which will enable the Applicant to make another application for an assessment of child support. However, he does not consent to her being given leave for an extension of time so that she may obtain a declaration under s.106A of the Child Support (Assessment) Act 1989, because that would lead to an assessment backdated to the date on which the Applicant originally made her application for an assessment of child support. This would create a significant amount of arrears, which the Respondent would then be liable to pay.

2. Ms Jenkins, who appeared for the Respondent, referred the Court to the decision of Judge Terry in Jordan & Fielding[1], where her Honour considered just such a question.   

   [1] [2013] FCCA 725

Background

1. The Applicant deposed that she and the Respondent had been in a relationship for about two years, during which time they conceived a daughter who was born on (omitted) 2005. The relationship ended before the child was born, however, the Respondent agreed that he was the child’s father and his name appears on her birth certificate.

2. It is the Applicant’s case that she and the Respondent recommenced a sexual relationship early in 2011 and they moved in together in about September of that year. The Applicant became pregnant.

3. The Applicant states that in about June 2012, when she was about 13 weeks pregnant, she and the Respondent had an argument about the forthcoming baby and, as a result, the Respondent told her to move out of their accommodation, which she did.

4. The Applicant claims that she suffered from pre-eclampsia[2] which led to her giving birth by an emergency caesarean section on (omitted) 2012.

   [2] A multi-system disorder of pregnancy characterised by the occurrence of elevated blood pressure and significant amounts of protein in the urine

5. The Applicant deposes that she first asked the Respondent to sign the document to register the child’s birth in about January 2013, but he refused. She applied for an administrative assessment of child support but this was refused by the Child Support Agency in a letter of 31^st January 2013. A copy of this letter is annexed to the Applicant’s affidavit. The letter gives two reasons for the application not being accepted:

   ·You have not supplied acceptable in formation that Mr Hayward[3] is a parent of Y.

   ·We have not received evidence to confirm your claim that you are the parent of Y.[4]

   [3] i.e. the Respondent

   [4] Affidavit of Ms Johnston 12/12/2013 Annexure “B”

6. The Applicant deposed that she made several attempts to persuade the Respondent to sign the necessary acknowledgement that he was the child’s father but he declined, saying:

   “I don’t think Y is mine”[5]

   [5] Ibid at paragraph [19]

7. The Applicant applied for legal aid on 2^nd October 2013. On an unspecified date in November 2013 the Applicant’s solicitor wrote to the Respondent on her behalf, enclosing a form of statutory declaration for the Respondent to sign admitting that he was the father of the child. Although the Applicant describes the letter as having been “dated 6^th November 2013”[6] the Respondent describes the letter as “undated”.[7]A copy of the letter is annexed to the affidavits of each party and there is no date on it at all.

   [6] Ibid at [23]

   [7] Affidavit of Mr Hayward 10/4/2012 at paragraph [23

8. The letter, which forms Annexure “C” to the affidavit of the Applicant and Annexure “A” to the affidavit of the Respondent is clearly marked “WITHOUT PREJUDICE”. I will comment further about this matter later in these reasons.

9. After he received the letter from the Applicant’s solicitor, the respondent rang the solicitor. His account of the conversation and the Applicant’s hearsay account of the conversation are completely at variance.

10. The Applicant deposes that:

    My solicitor advised me that Mr Hayward contacted her, but he refused to sign a statutory declaration.[8]

    [8] Affidavit of Ms Johnston 1/12/2013 at [23]

11. The Respondent, however, deposed that in the telephone conversation he declined to sign a statutory declaration until a DNA test had been undertaken. He states that the solicitor then asked him:

    “Are you happy to do a DNA test? We can avoid Court if you do the DNA test”.[9]

    [9] Affidavit of Mr Hayward 10/4/2014 at [25]

12. The Respondent states that he replied:

    “Yes. I am happy to do a DNA test. I have been requesting the test all along. Do I need to do anything else now?”

    And the solicitor replied “No”.[10]

    [10] Ibid

13. The Applicant again applied for an assessment of child support, but received a letter of refusal dated 29^th November 2013. This letter told her that the reason for the refusal was that, on the evidence provided, the Child Support Agency was not satisfied that the Respondent was the child’s father.

14. The Applicant commenced proceedings by filing an Application on 13^th December 2013, returnable on 28^th January 2014.

15. The Respondent attended Court on 28^th January without legal representation and signed a Minute of Consent Orders in which the parties agreed to submit to DNA parentage testing in accordance with s.69W of the Family Law Act 1975.

16. The DNA tests duly took place and the Parentage Testing Procedure Report from Genetic Technologies Corporation Pty Ltd dated 6^th March 2014 showed that the Respondent was not excluded from identification as the child’s father and the probability that he is the father has been assessed at 99.99998%. A copy of the Report is annexed to the affidavit of the Applicant’s solicitor affirmed on 10^th April 2014.

Submissions

1. It is submitted for the Applicant that the Court should make the order sought under s. 106A of the Child Support (Assessment) Act 1989 and grant leave under Rule 3.05.

2. It is submitted for the Respondent that only the declaration under s.69VA of the Family Law Act 1975 should be made and that the court should not grant the leave sought. The Court was referred to the decision of Judge Terry in Jordan & Fielding.[11]

   [11] supra

The law to be applied

1. Rule 25A.06 provides at sub-rule (1) that a person must file an application for a declaration under subsection 106A(2) of the Child Support (Assessment) Act 1989 within 56 days of service on the applicant of a notice given under s.33 of that Act.

2. However, Rule 3.05 allows the Court to extend the time even if the time has passed (r.3.05(3)).

3. In Jordan & Fielding, Judge Terry considered the principles to guide the Court in the exercise of its discretion set out in Re Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment[12]. Her Honour encapsulated the principles set out in the judgment of Wilcox J in Re Hunter Valley Developments as follows:

   (a)the court should not grant the application unless it is positively satisfied that it is proper to do so and it is a pre-condition to the exercise of discretion that the applicant has furnished an acceptable explanation for delay and that it is fair and equitable in all the circumstances to extend time;

   (b)any action the applicant has taken, apart from applying for the extension of time, is relevant to the question of whether an acceptable explanation of delay has been furnished;

   (c) any prejudice to the Respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension;

   (d)the merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted;

   (e)consideration of fairness between the Applicant and persons in a like position are relevant to the matter of the exercise of the court’s discretion.[13]

   [12] [1984] FCA 176; (1984) 3 FCR 344; 58 ALR 305

   [13] Jordan & Fielding at [30] per Judge Terry

4. In my view it is appropriate to follow this decision.

Conclusions

1. In my view, the following considerations are relevant in deciding whether or not to grant leave.

2. The Applicant’s explanation for the delay in applying can be found in paragraphs [18] to [25] of her affidavit of 12^th December 2013. She claims that she had suffered health problems before and after the child’s birth and had to attend medical appointments on a regular basis. She asked the Respondent to sign an acknowledgment that he was the father but continually refused. She found her conversations with the Respondent stressful, especially as he had said on several occasions that he did not believe that he was the father. She had been advised by her doctors to avoid stress.

3. The Applicant endeavoured to persuade the Respondent to sign an acknowledgement of paternity, but he refused. Eventually, she sought legal advice from Legal Aid NSW. Her solicitor wrote to the Respondent, asking him to complete a statutory declaration. The Respondent telephoned the Applicant’s solicitor. His account of the telephone conversation differs significantly from the Applicant’s hearsay account. It is not possible for the Court to make a definitive factual finding as to which account of the conversation should be preferred, i.e. whether the Respondent volunteered to undergo a DNA test to ascertain paternity, as the evidence is untested by cross-examination.

4. There would be a prejudice to the Respondent if leave were to be granted, as the subsequent assessment of child support would be backdated to the date of the application and the Respondent would become liable for payment of arrears. 

5. The merits of the substantive application are to be taken into account. The Applicant seeks an assessment of child support against the man who has been proven by DNA evidence to be the child’s father. The Child Support (Assessment) Act 1989 provides at s.3(1) that the parents of a child have the primary duty to maintain the child.

6. The question of fairness arises. The father will consent to a declaration under s.69VA of the Family Law Act 1975 that he is the father of the child. In the light of the uncontested evidence of the Parentage Testing Procedure Report, he does not have any choice. The evidence is such that the declaration can be made whether he consents or not.

7. What is relevant, however, is the fact that the Applicant made two applications for child support, and has received two letters of refusal, dated 31^st January 2013 and 29^th November 2013, a point made by the Respondent’s solicitor, Ms Jenkins, in her oral submissions.

8. The first refusal was based on two grounds. Not only had the Applicant not provided evidence to show that the Respondent was the child’s father, but she had failed to provide evidence that she was the child’s mother. The child’s birth certificate is annexed to the Applicant’s affidavit. The birth certificate shows that the child’s birth was not registered until 15^th February 2013, a date after the first application was refused.

9. Thus, the application for child support made in January 2013 could not have been successful in any event, because of the Applicant’s failure to provide evidence by way of a birth certificate to show that she was the child’s mother.

10. That is not the case with the second application. The letter from the Child Support Agency dated 29^th November 2013 shows that the reason why the application was not successful was entirely due to the lack of evidence that the Respondent was the child’s father, and no other reason. That evidence is now to hand, in the form of the results of the DNA test.

11. The child’s birth was not registered until 15^th February 2013. The Applicant could have re-applied at any time after that date, providing a copy of the child’s birth certificate to show that she was in fact the mother of the child, but she did not do so until November 2013, presumably as a result of her making an application for legal aid in October 2013.

12. I am not satisfied that the Applicant should be granted an extension of time to enable her to rely on the letter of 31^st January 2013, because the refusal to make an assessment of child support was not based entirely on the lack of evidence that the Respondent was the child’s father. 

13. I am satisfied that the Applicant can rely on the letter of 29^th November 2013, being a notice in writing under the provisions of s.33 of the Child Support (Assessment) Act 1989.

14. Rule 25A.06 requires an applicant for a declaration under subsection 106A(2) to file an application within 56 days of the service on the applicant of a notice given under section 33 of the Act. The letter was dated 29 November 2013.

15. The Applicant filed her Application on 13^th December 2013, only 14 days later. The Applicant does not need an extension of time to apply. Her Application is within time.

16. Accordingly, it is open to the Court to make a declaration under paragraph (a) of subsection 106A(2), because the only reason for the Child Support Registrar to refuse to accept the application as set out in the notice under s.33 of 29 November 2013 was that the Registrar was not satisfied under section 29 that the person who was to be assessed in respect of the costs of the child was the parent of the child (in this case, the father).   

“Without Prejudice” letter annexed to affidavit

1. The undated letter from the Applicant’s solicitor to the Respondent asking him to complete a statutory declaration admitting to be the father of the child is marked WITHOUT PREJUDICE. At first glance, this letter would be inadmissible in evidence under s.131(1) of the Evidence Act 1995 (Cth), as it is evidence of a communication between persons in dispute in connection with an attempt to negotiate a settlement of the dispute. It is not necessary for the litigation to have commenced for the exclusion to apply (see Korean Airlines v Australian Competition & Consumer Commission (No.3)[14].

   [14] [2008] FCA 701; (2008) 247 ALR 781

2. However, the Respondent has seen fit to annex a copy of that same “Without prejudice” letter to his affidavit, which can be taken to be a consent to the letter being adduced in evidence under the exception in s.131(2)(a).

3. As a general rule, it is inadvisable to annex a “without prejudice” letter to an affidavit in support of an application.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  23 April 2014