Johnston and Hayward

The Federal Circuit Court of Australia heard an application by Ms Johnston, the mother of a child named Y, seeking a declaration that the Respondent, Mr Hayward, is the father of the child and should be assessed for child support. Ms Johnston sought leave to proceed out of time with her application for a child support assessment, relying on either a refusal decision from the Child Support Registrar dated 31 January 2013 or, alternatively, a refusal decision dated 29 November 2013. Mr Hayward consented to a declaration of paternity under s.69VA of the Family Law Act 1975 but opposed the grant of leave for an extension of time, as this would result in child support arrears being created.

The court was required to determine whether to grant Ms Johnston leave to proceed out of time with her application for a child support assessment under s.106A(2) of the Child Support (Assessment) Act 1989. This involved considering the legal issues surrounding the timing of such applications, the discretion of the court to extend time, and the principles governing the exercise of that discretion, including the explanation for delay, prejudice to the respondent, and the merits of the substantive application. The court also had to consider the admissibility of a "without prejudice" letter annexed to an affidavit, which was a communication in connection with an attempt to negotiate a settlement.

The court applied the principles established in *Re Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment* and followed in *Jordan & Fielding* to guide its discretion. These principles require the court to be satisfied that it is proper to grant an extension, that there is an acceptable explanation for the delay, and that it is fair and equitable to do so, while also considering any prejudice to the respondent and the merits of the application. The court found that while the first refusal letter of 31 January 2013 was based on multiple grounds, including a lack of evidence of Ms Johnston's maternity, the second refusal letter of 29 November 2013 was solely due to insufficient evidence of Mr Hayward's paternity. Crucially, the court determined that Ms Johnston's application filed on 13 December 2013, following the 29 November 2013 refusal, was within the 56-day time limit prescribed by Rule 25A.06 of the Federal Circuit Court Rules 2001, meaning an extension of time was not required for that application.

The court declared that Mr Hayward is the father of the child Y, in accordance with s.69VA of the Family Law Act 1975, based on his consent and the uncontested DNA evidence. The court further declared that Mr Hayward is to be assessed for child support for the child Y, as he is the child's parent, under s.106A(2) of the Child Support (Assessment) Act 1989. The court noted that Ms Johnston's application was within time in relation to the refusal letter of 29 November 2013, and therefore, leave to proceed out of time was not required for that aspect of her application.