Jones and Dalton - [2004] FMCAfam 610

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JONES & DALTON

[2004] FMCAfam 610

CHILD SUPPORT – Declaration – parentage testing – registration and collection – application for stay – application for declaration that the Respondent is not entitled to administrative assessment of child support – where subject children are adults.

FAMILY LAW – Child maintenance – arrears – parentage testing.

COSTS – Circumstances justifying order – conduct of a party to the proceeding – failure by party to comply with court order – where party has been wholly unsuccessful – order for payment of disbursements to Respondent where Applicant failed to submit to parentage testing after order.

Child Support (Assessment) Act 1989 (Cth), ss.107, 140
Child Support (Registration and Collection) Act 1988 (Cth), ss.17. 30
Family Law Act 1975 (Cth), ss.66W, 69R, 69S, 69T, 69W, 69X, 69Y, 117(2A)
Federal Magistrates Court Rules 2001, Rr 21.02, 21.10

Applicant:

CHRISTOPHER IAN JONES

Respondent:

MARGARET PATRICIA DALTON

File No:

PAM 4286 of 2003

Delivered on:

7 October 2004

Delivered at:

Parramatta

Hearing date:

23 September 2004

Judgment of:

Scarlett FM

REPRESENTATION

The Applicant appeared on his own behalf

The Respondent appeared on her own behalf

ORDERS

The order for a stay of enforcement of collection of arrears of child maintenance made on 23 November 2003 is discharged.
The Application filed on 13 October 2003 is dismissed.
The Applicant is to pay the sum of $1841.27 to the Child Support Registrar on account of his child support debt (Reference 135 223 113) by instalments of $37.60 per fortnight, the first payment to be made on or before Thursday 21 October 2004 and the final payment is to be made on or before Thursday, 7 September 2006.
The Applicant is to pay the Respondent's costs of this application in the sum of $412.50 being a disbursement properly incurred, such payment to be made within six (6) months of the date of this order.
I DIRECT THAT a sealed copy of these orders is to be forwarded to the Acting Regional Registrar, Child Support, at GPO Box 9815 Sydney New South Wales 2001 within seven (7) days.
A transcript of reasons for this decision is required.
The Application is removed from the list of cases awaiting finalisation.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 4286 of 2004

CHRISTOPHER IAN JONES

Applicant

And

MARGARET PATRICIA DALTON

Respondent

REASONS FOR JUDGMENT

This is an application by Christopher Ian Jones for orders for parentage testing in respect of the two children who are now adults. He also seeks a declaration under s 107 of the Child Support Assessment Act that the Respondent, who is the mother of these children, is not entitled to administrative assessment of child support for those children payable by the Applicant.
The Applicant sought interim orders for a stay of enforcement of an amount of money claimed by the Child Support Registrar.
The matter came before the Court for the first time on Tuesday, 25 November 2003. The Applicant had experienced some difficulties as far as service was concerned and I made a direction that he serve a sealed copy of the documents on the Child Support Registrar before the matter could proceed.
On 25 November 2003 an order was made that enforcement of arrears of child maintenance in respect of the adult children, JAMIE CHRISTOPHER JONES, born 27 October 1981 and IAN RAYMOND LESLIE JONES, born 2 November 1983, were to be stayed until further order. It had become clear by that stage that the proceedings related not to child support under the Child Support Assessment Act but to child maintenance made by a Local Court and registered with the Child Support Agency pursuant to s.17 of the Child Support Registration and Collection Act. The orders relating to child maintenance were in fact made on the 12 May 1987. The matter was adjourned until 6 January 2004. At that stage the Respondent mother appeared and sought orders that the application for DNA testing in respect of the two adult children should in fact be served on those two adult children as they are adults.
That came back before the Court on 2 March and on the application of the Applicant was adjourned until 3 August. There was no appearance on that date so I adjourned the matter until 24 August for further mention. On 24 August the matter came before Federal Magistrate Emmett who made directions about filing further material by 30 August and adjourned the matter to 6 September. On that occasion the father appeared, the mother did not. I listed the matter for final hearing on Thursday 23 September and both parties attended.
On that occasion the parties elected to deal with the matter by way of submissions rather than by giving of oral evidence and cross-examination. The parties tendered a number of documents and I also had regard to their affidavits.
It was always the Applicant's case that as he had discovered that two other children were not his children and that he had suspicions that the two adult children, Ian and Jamie were not his children either. The mother had been adamant throughout the case that that was the situation and that the question of parentage testing would only prove, yet again, that the Applicant was the father of these two children. He is estranged from both of them.
Accordingly, I made orders on the 6 January that the Applicant, the Respondent and Ian Raymond Leslie Jones, should undertake parentage testing by giving the appropriate bodily samples and that each would initially meet half the costs of the parentage test report and would pay the sum requested within one month of the date of the order.
I did not make a similar order in respect of Jamie Christopher Jones as the Applicant had been unable to serve him as ordered.
The situation is that the Applicant father did not undertake the parentage testing which he sought and which was the subject of the order.
The mother tendered into evidence, without objection, two letters from Silbase Scientific Services. One, dated 12 February 2004 confirmed that she had completed the application form and had paid the sum of $412.50 to go towards the parentage testing. At that stage the scientific laboratory had not seen an application for the father. The letter goes on to say:
Once this document and outstanding payment of $412.50 has been received, we will arrange to have the samples taken.
The next letter is dated 27 August 2004. That letter confirmed that no application form had been received from the Applicant nor had there been a payment of $412.50. Accordingly, no arrangement had been made to collect samples. That remained the situation on the date of appeal.
The father submitted that there were arrears of child maintenance of $1841.27. This in fact was confirmed by a letter to him from the Child Support Registrar dated 8 September 2004. He noted that the letter referred to the fact that if the money was paid within - or an agreement entered into, that the Child Support Agency would waive the late payment penalties.
He agreed that he had not pursued the DNA testing and gave, as his reason:
If they're not (my children) it would kill me. I would probably jump off the bridge.
He went on to say:
I know Ms Dalton is entitled to the money. She doesn't need the $1800.
The mother submitted that she and the father had never lived together since December 1983. She had been required to seek administrative assessment of child support by Centrelink. She said that the father had admitted paternity and had in fact agreed that his name would go on the children's birth certificates.
On 25 August 1987, she said that the order was varied by reducing it to $5 per child per week.
She confirmed that she did apply to have the DNA tests taken and paid the money but the father did not.
She submitted that the father, to her mind, had done everything possible to avoid paying child support arrears saying:
He's done everything under the sun to get out of child support.
She said she was still on a pension. She said that the child, Ian, suffers from certain disabilities. He was born prematurely and has had a learning difficulty. He is deaf but he can read (a little tiny bit). He is not able to obtain employment. He lives with the mother. The other child, Jamie, does not suffer from a disability and does not live with the mother.
She submitted that it was the father who asked for the DNA testing to be done and then did not take the test himself. In her view, as other fathers were paying up to $1000 per week for child support, she did not see why the Applicant should be let off.
The Applicant denied trying to put off these proceedings and pointed out that he does not get paid in his employment whenever he is at Court. He says that he does not have the money to pay any amount of child support or maintenance and had an appointment with the Insolvency Trustee and may well go bankrupt. Those then are the proceedings.
It is quite clear that the application that the father has brought is inappropriate in that it seeks a declaration under the Child Support Act when the details relate to child maintenance. It is just that the maintenance is being collected by the Child Support Registrar. The Applicant has been aware of that since 6 January.
The Court arranged for him to obtain legal advice from on a duty solicitor basis from a Mr Ken McWhinney, a legal officer from the Child Support Agency. Mr McWhinney examined the papers and advised the Applicant about this situation. The Applicant in fact tendered a letter to him from Mr McWhinney, dated 6 January, in which Mr McWhinney quite correctly sums up the position:
I note your application was for a stay of enforcement under s 140 of the Child Support Assessment Act (1989) and a declaration under s 107 of the Act for the children, Jamie and Ian. Upon returning to my office I reviewed the case documents and noted the following details: The CSA case is based on a Court order registered under the Child Support (Registration and Collection) Act 1988 and that order expired upon the youngest child turning 18 years of age. Therefore the Court application has been brought under the incorrect legislation. I only bring this to your attention in the event that the Court ordered DNA testing finds you not to be the father of the children. If this occurs, the Court would need to consider what orders it may make in relation to the expired Court order and not a declaration under s 107 of the Act.
The situation is that the Applicant has sought relief from the Court under the incorrect legislation. The letter from Mr McWhinney of the Child Support Agency sums up the legal position.
In my view the evidence points strongly to the fact that the Applicant is the father of these children. There are in fact a number of presumptions as to parentage under ss.69R, 69S, 69T, 69W, 69X and 69Y of the Family Law Act.
The Applicant did, on 12 May 1987, admit the paternity of the children. At Liverpool Local Court on that date, with the aid of a solicitor who acted as amicus curiae, a friend of the Court, consent orders were entered and which the father signed. The first order is:
That Christopher Ian Jones admits to the paternity of the children of the relationship, namely Jamie, born 27 October 1981 and Ian, born 2 November 1983, between himself and the informant, Margaret Dalton.
He then went on to consent to payments of child maintenance. In my view, the admission made to the Court is in fact an acknowledgment of paternity and there is a consent order of the Local Court of New South Wales at Liverpool which sets out that position.
The mother has tendered copies of the children's birth certificates as Exhibit 7 and Exhibit 8. In each case the Applicant is recorded as the father of Jamie Christopher Jones, formerly known as Dalton and Ian Raymond Leslie Jones. Having the father's name entered on a birth certificate enables the Court to make a presumption of paternity.
The Applicant sought orders for DNA testing on the basis that he believed that he may not have been the father. He obtained the order that he sought and despite the fact that the mother complied with the requirement, including paying the $412.50, the Applicant chose not to go through the procedure which he himself had asked the Court to do. His explanation for that was that if he found out that he was not the father of one or other of the children then it would kill him.
I do not accept this explanation. In my view, the Applicant is being disingenuous. He asked for DNA testing. He submitted an affidavit to the Court expressing doubt about parentage of the two boys and then when he obtained an order, at least in respect of the child Ian, he declined to comply with that order and attend and provide the appropriate bodily samples, let alone pay his half of the testing fee. The Respondent did comply and in fact has paid the amount of $412.50. For the Applicant to turn round and say that if he found out that he was not the father that it would kill him, leads to the question of why he commenced the proceedings in the first place.
The Applicant was advised by the Child Support Registrar, under cover of a letter dated 8 September 2004, that the Child Support Agency was offering an incentive to paying parents with overdue child support, or in this case, child maintenance. The letter of 8 September 2004 says and I quote:
For a short time, CSA is offering an incentive to all paying parents with overdue child support. If you make an agreement to pay your debt and your regular child support, then CSA will cancel all the late payment penalties.
Your current debt for child support as at 8.9.2004 is $1841.27. If you make a payment arrangement to pay this amount as a one payment payoff or negotiate a payment arrangement to pay this amount in instalments, provided you stick to the agreement and pay your debt in two years, CSA will guarantee that all your penalties, which currently amount to $6113.75 will be cancelled once all your debt has been paid.
In my view, the action by the Acting Regional Registrar Child Support would offer a powerful incentive to any paying parent to get child support up to date, certainly any parent who was mindful of his or her responsibilities.
In my view the Applicant's actions in conducting these proceedings leave him open to severe criticism. He sough DNA testing in order disprove paternity. The Respondent complied with the orders, at her cost, but he himself declined to do so on the basis that he could not bear to find out the result. He has denied that these proceedings have been brought about by a desire to get out of paying child maintenance but the evidence tells a different story. The mother tendered a letter which the father chose to send to the child, Ian, which was written in the most insulting terms. The letter that he sent, along with a copy of the orders as directed by this Court on 6 January 2004, is addressed to Ian Jones as follows:
Mr Ian Raymond Leslie Dalton/Jones or whatever ??? I did not want to find you so don't worry I won't come near you. This is because child support and your mother are trying to fuck me over and the only way to get your fucking mother out of my life and pocket is to find out who is who and who was fucking who. I told the Court that I would pay you but into your account as you are a man and I don't see why I have to pay your mother!!. It was her idea to serve you and Jamie as you are both over 18 years old and the Court agreed with her. So see you in Court or write a letter to the Court on what you want ???? I don't care as long as I can get your fuckwit, half a brain mother out of my pocket and life. PS. I hope you stay away from me and your mother and have a real life and be happy with whatever you do. Up yours or up mine. Shit happens !!!!! You can work out who this is from.
To my mind this letter amply sums up the father's attitude towards his child. I am more than satisfied that all of the evidence leads to a presumption that the Applicant is the father of both of the children. His refusal to undertake the DNA testing when he got the order that he sought shows him up in a particularly poor light. I am of the view that these proceedings were totally without merit and were, as the mother suspects, brought to frustrate the intention of the Child Support Registrar to collect outstanding payments.
The purpose of the Child Support Legislation is so that parents may meet their responsibilities. The evidence shows that this father has failed in his responsibility to his children for a considerable period of time.
Because of the unmeritorious nature of the proceedings, because of the fact that the application has failed completely, because of the way in which the Applicant has failed to comply with the Court order which he himself sought and because of the fact that the Respondent has complied with the order that the applicant asked the Court for as far as DNA testing was concerned, in my view this is a matter that would justify an order for costs.
I also propose to make an order that the Applicant pay the outstanding child support. If he had taken advantage of the offer made to him by the Child Support Registrar on 6 September he would be in a better position than he is now.
I make the orders set out at the commencement of these Reasons.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V Lee

Date: 4 November 2004