JORDAN & FIELDING

[2013] FCCA 725

FEDERAL CIRCUIT COURT OF AUSTRALIA

JORDAN & FIELDING [2013] FCCA 725

Catchwords:
CHILD SUPPORT – Application for a declaration pursuant to s.106A(2) of the Child Support (Assessment) Act – whether the mother should be given leave to proceed with the application out of time – where the effect of giving the mother leave to proceed out of time will be to create eight months of arrears of child support for the father.

Legislation:  

Child Support (Assessment) Act (Cth) ss.29, 33, 106A
Evidence Act (Cth) ss.160, 182
Family Law Act (Cth) ss.67B, 69VA
Federal Circuit Court Rules(Cth) rr.3, 25A

Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR305

Applicant: MS JORDAN

Respondent: MR FIELDING

File Number: NCC 96 of 2013

Judgment of: Judge Terry

Hearing date: 14 June 2013

Date of Last Submission: 14 June 2013

Delivered at: Newcastle

Delivered on: 17 June 2013

REPRESENTATION

Solicitor Advocate for the  Applicant: Ms McShan

Solicitors for the Applicant: Legal Aid NSW

Solicitor Advocate for the Respondent Ms Galloway

Solicitors for the Respondent: Galloway Family Law

ORDERS

1. Pursuant to section 69VA of the Family Law Act 1975 MR FIELDING is declared to be the father of the child X born (omitted) 2012.

2. Pursuant to Rule 3.05 of the Federal Circuit Court Rules 2001 the time in which the applicant has to file an application pursuant to section 106A of the Child Support (Assessment) Act 1989, be extended to the filing date of the application.

3. Pursuant to section 106A of the Child Support (Assessment) Act 1989, a declaration that MR FIELDING should be assessed in relation to the costs of the child X born (omitted) 2012 because MR FIELDING is a parent of the child X. 

4. Within 28 days the father is to pay direct to the Legal Aid Commission the sum of $275.00 being his half share of the costs of the paternity testing.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT NEWCASTLE

NCC 96 of 2013

MS JORDAN

Applicant

And

MR FIELDING

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally. They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. In October 2012 Ms Jordan (“the mother”) applied for a child support assessment in respect of her daughter X, naming Mr Fielding (“the father”) as X’s father. The application was refused by the Child Support Registrar on the basis that the Registrar could not be satisfied that Mr Fielding was a parent of the child.

3. On 17 January 2013 the mother filed an application seeking a declaration pursuant to s.106A(2) of the Child Support (Assessment) Act that the father was a person who should be assessed for the payment of child support for X.

4. S.106A(1), (2), (3), (5) & (6) provide as follows:

   (1) This section applies if:

   (a)  the Registrar refuses to accept from an applicant 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.

   Applications for declarations

   (2)  An application may be made to a court having jurisdiction under this Act for a declaration that:

   (a)  if the reason referred to in paragraph (1)(b) was the only reason for the Registrar refusing to accept the application--a person should be assessed in respect of the costs of the child because the person is a parent of the child; and

   (b)  if the reason referred to in paragraph (1)(b) was one of the reasons for the Registrar refusing to accept the application--the Registrar should reconsider the application under Division 2 of Part 4 because a person who was to be assessed in respect of the costs of the child is a parent of the child.

   (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.

   Declarations

   5)  The court may grant the declaration if the court is satisfied that:

   (a)  if the reason referred to in paragraph (1)(b) was the only reason for the Registrar refusing to accept the application--the person should be assessed in respect of the costs of the child because the person is a parent of the child; or

   (b)  if the reason referred to in paragraph (1)(b) was one of the reasons for the Registrar refusing to accept the application--the Registrar should reconsider the application under Division 2 of Part 4 because the person who was to be assessed in respect of the costs of the child is a parent of the child.

   (6)  If the court grants the declaration:

   (a)  if the reason referred to in paragraph (1)(b) was the only reason for the Registrar refusing to accept the application--the Registrar is taken to have accepted the application for administrative assessment of child support; and

   (b)  if the reason referred to in paragraph (1)(b) was one of the reasons for the Registrar refusing to accept the application--the Registrar must reconsider the application under Division 2 of Part 4.

5. The Federal Circuit Court Rules contain the relevant provision about the time limit for filing a s.106A application. The mother’s application was filed out of time and she sought an order for an extension of time.

6. After the mother commenced proceedings paternity was established by means of paternity testing and the issue in dispute then became whether the mother should be given an extension of time to file her application.

7. The father opposed the mother being given an extension of time, and the significance of the issue is that if the mother is given an extension of time and a declaration is made then pursuant to s.106A (6) the assessment will be backdated to the date on which the mother originally lodged her application for child support with the Child Support Agency, creating nearly eight months of arrears for the father.

8. The father said that now that paternity testing had established that he was X’s father he was willing to consent to a declaration pursuant to section 69VA of the Family Law Act and that this was all that was required. This would satisfy s.29(2)(c)(i) of the Child Support (Assessment) Act and armed with this declaration the mother could lodge a fresh application for child support which would be successful. Child support would then be payable from the date of that application.

Background

1. The father is 37 and the mother 32.  They had a relationship for about one week in January 2012 and had sexual intercourse on one occasion. 

2. In April 2012 the mother discovered that she was pregnant. She informed the father that he was the father and he went with her to her first medical appointment.

3. The father said that as a result of what the parties were told at the appointment he formed the view that he could not be the father of the unborn child.  The mother said that she had not had sexual intercourse with anyone else for some time and that there was no doubt in her mind that the father was the father.

4. There was a dispute about whether the father suggested that the mother have an abortion or the mother suggested that she was undecided about whether to keep the baby, but it was common ground that later in April the mother told the father that she intended to keep the baby.  The mother informed the father that she intended to place his name on the birth certificate. The father made it clear that he did not accept that he was the father and he told the mother that she could not put his name on the birth certificate without his consent.

5. The mother and father then had no further contact.

6. X was born a month premature on (omitted) 2012, and on 10 October 2012 the mother applied for a child support assessment.  She was perfectly entitled to do so but in addition she is on a Disability Support Pension and as a recipient of Centrelink benefits she had no option but to make the application.

7. The mother named the father as X’s father but as his name was not on X’s birth certificate the Child Support Registrar wrote to the father asking him to confirm this. The father replied saying that he disputed paternity and by letter dated 12 October 2012 the Child Support Registrar informed the mother that her application could not be accepted because none of the conditions in s.29 of the Child Support (Assessment) Act were met. 

8. The mother did not say when she received this letter and she may not remember.

9. 12 October 2012 was a Friday. The mother’s solicitor referred me to s.160 of the Evidence Act which provides that a letter sent by ordinary pre-paid post is taken to have been received on the fourth business day after it was posted.  There was no evidence about when this letter was posted but I consider it reasonable to find that the date on which the mother should be taken to have received it is 18 October 2012.

10. At some point after she received the letter the mother contacted Legal Aid and on 6 December 2012 Legal Aid wrote to the father requesting that he acknowledge paternity. They informed him that if he did not respond to their letter within 14 days a court application would be filed.

11. The father chose not to respond and on 17 January 2013 Legal Aid filed an application on the mother’s behalf seeking a declaration of paternity pursuant to section 69VA of the Family Law Act, a declaration pursuant to 106A(2) of the Child Support (Assessment) Act and an extension of time to file the application for the s.106A(2) declaration.

12. The time limit for filing an application pursuant to s.106A(2) is contained in rule 25.06 of the Federal Circuit Court Rules which provides as follows:

    A person must file an application for a declaration under subsection 106A(2) or 107(1) of the Assessment Act within 56 days of the service on the applicant of a notice given under section 33 or 34 of that Act.

13. The letter to the mother dated 12 October 2012 was a notice under s.33 of the Child Support (Assessment) Act and adopting 18 October 2012 as the start date for the running of the 56 days the mother’s time for the filing of the application expired on 13 December 2012. Her application was filed a little over a month out of time.

14. After the father was served with an application he consulted a solicitor, and on 27 February 2012 he filed a response seeking the dismissal of the mother’s application and costs. Behind the scenes however his solicitor contacted the mother’s solicitor and an agreement was reached for paternity testing to be carried out.

15. On 5 March 2013, the first mention date of the matter before me, an order for paternity testing was made by consent and the matter was adjourned to 29 May 2013 for further consideration.

16. On 29 May 2013 I was informed that the paternity testing had confirmed that the father was X’s father.

17. The mother’s solicitor then asked me to make a s.69VA declaration, a s.106A(2) declaration and an order for an extension of time.

18. The father’s solicitor said that the father consented to a s.69VA declaration being made but opposed the mother being granted an extension of time to file the s.106A(2) application and sought the dismissal of that application.

19. I listed the dispute for hearing on 14 June 2013 and on that date each parties’ solicitor made submissions.

Discussion

1. Pursuant to rule 3.05 of the Federal Circuit Court Rules this court has the power to extend or shorten time fixed by the rules and time may be extended even if the time fixed has passed.

2. There are many reported cases dealing with the issue of the matters to be taken into account when an extension of time is sought. It is something which arises in every court from time to time.

3. A useful case is the Federal Court decision Hunter Valley Developments Pty v Minister for Home Affairs and Environment[1] to which I was referred in another child support matter. In that case the Federal Court distilled the following principles to guide the exercise of the court’s discretion (my summary):

   (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 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.

   [1] Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR305

4. On the face of it, taking these considerations into account, the mother has a compelling case for an extension of time.

5. The mother provided an acceptable explanation for delay. She sought legal advice reasonably promptly after her application was refused by the Child Support Registrar and when she went to see Legal Aid she was still within time to file a s.106A application. Legal Aid however adopted their usual policy of trying to secure an agreement from the father before going to Court, and then the Christmas shutdown intervened, and as a result the mother’s application was filed about a month out of time.

6. The mother’s application clearly has merit – the father is X’s father – and it will cause the mother hardship if she is not granted the extension of time. She will miss out on the child support to which she would otherwise have been entitled dating back to early October 2012. She is on a Disability Support Pension and is in a poor financial position.

7. The father did not contribute in any way to the maintenance costs for the mother during her pregnancy although I note that an application concerning this could still be made pursuant to section 67B of the Family Law Act. The father has not contributed to any of the costs of supporting X since her birth and the mother has had significant costs in that regard. X was born with a heart condition and this has required a number of medical appointments and trips from the mother’s home further up the (omitted) to (omitted). 

8. The issue in the case is whether the prejudice to the father of granting the extension of time trumps the considerations which favour the mother.

9. If the extension of time is granted the child support assessment will be backdated to when the mother first made her application ie October 2012.

10. The father was not entirely frank in his affidavit about his financial circumstances and he did not inform the Court about his gross income or provide a payslip.  However he asserted that on his calculation – he is a (occupation omitted) I might add – on his calculation he would be assessed to pay the maximum amount which would result in an assessment of $277.00 per week and arrears on his calculation of about $9000.00

11. The father said that he simply did not have $9000.00.

12. I accept that suddenly being faced with arrears of $9000.00 will be very unpleasant for the father and that if he had to find this all at once it would cause him hardship.  However for the reasons given below I do not consider that this outweighs the factors which favour the granting of the mother’s application for an extension of time.   

13. First, the Child Support Agency will not necessarily require the father to come up with $9000.00 in a lump sum. From my experience in dealing with child support matters it is much more likely that the father will be able to pay this amount off over time.

14. Most importantly however in my view the father has made a contribution to the fact that the arrears have reached this point.

15. The mother may not have told the father about X’s birth but he was aware within a month that she had been born and that the mother was claiming that he was the father, because the Child Support Registrar contacted him. 

16. He well knew that the mother had not simply picked him out of the phonebook. He had had a brief relationship with her and had sexual intercourse with her in January 2012 and the mother informed him in April 2012 that she believed that he was the father.

17. When the father was contacted by the Child Support Registrar he simply denied paternity.  He did not suggest that he and the mother undergo paternity testing.  His solicitor submitted to me from the bar table that the father may have been unaware of this option, but I cannot accept this given that we are living in 21^st Century Australia..

18. The father had another opportunity to suggest this when he was contacted by Legal Aid in early December 2012.  He chose to ignore the letter from Legal Aid however and it was only after the mother filed an application that the father sought legal advice and an order was made for paternity testing.

19. The father took a risk in letting the matter drag on after he was first notified of the mother’s claim in October 2012 and it would be unreasonable to require the mother to bear the cost of the father choosing to take that risk. 

20. There may be cases – I am sure there will be cases – where a failure to file an application for a s.106A(2) declaration within time will result in no extension of time being granted, for example where there has been a lengthy delay and a father has been lulled into a false sense of security and has made financial decisions during the period of the delay which will make it hard for him to pay the arrears, or where the mother tells the father that she does not intend to pursue child support and then changes her mind.

21. Those factors do not exist in this case however. The mother acted reasonably promptly and was still within time when she went to see Legal Aid, and while I accept that it will not be easy for the father to pay off the arrears he is in an exponentially stronger financial position than the mother.

22. I do have some sympathy for the father. He did not plan to become a parent and he is one as a result of a very brief relationship and a single instance of sexual intercourse. However s.3 of the Child Support (Assessment) Act requires that parents support their children and s.3(2) provides as follows:

    (2)  Without limiting subsection (1), the duty of a parent to maintain a child:

    (a)  is not of lower priority than the duty of the parent to maintain any other child or another person; and

    (b) has priority over all commitments of the parent other than commitments necessary to enable the parent to support:

    (i)  himself or herself; and

    (ii)  any other child or another person that the parent has a duty to maintain; and

    (c)  is not affected by:

    (i)  the duty of any other person to maintain the child; or

    (ii)  any entitlement of the child or another person to an income tested pension, allowance or benefit.

23. Absent this kind of provision the cost of maintaining children would be cast back onto the community much more extensively than it is. 

24. Therefore while I have some sympathy for the father I am satisfied that the mother’s application should be granted and I intend to make the order sought by the mother in relation to the extension of time and also the declarations pursuant to s.106A(2) and s.69VA.

I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:  9 July 2013