K and C

[2002] FMCAfam 396

FEDERAL MAGISTRATES COURT OF AUSTRALIA

K & C [2002] FMCAfam 396

FAMILY LAW – Child support – paternity – application for declaration by unsuccessful carer applicant for administrative assessment – presumption of parentage – declaration of parentage – persistent failure by the Respondent to attend to provide samples for parentage testing – inference drawn from contravention of parentage testing order.

Child Support (Assessment) Act 1989, s.106
Family Law Act 1975, ss.69VA, 69W, 69X, 69Y

G v H (1994) FLC 92-504

Applicant: MJK

Respondent: BC

File No: PAM 1235 of 2002

Delivered on: 17 September 2002

Delivered at: Parramatta

Hearing Date: 17 September

Judgment of: Scarlett FM

REPRESENTATION

Solicitors for the Applicant: Ms Beckhouse

Solicitors for the Respondent: Heard ex parte

ORDERS

1. Pursuant to section 69VA of the Family Law Act, it is declared that the Respondent BC is the father of the child JRK born 8 October 2001. It is further declared that the Respondent is a resident of Australia.

2. Pursuant to the provisions of section 106(1) of the Child Support (Assessment) Act, the Applicant mother is entitled to administrative assessment of child support payable by the Respondent.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 1235 of 2002

MJK

Applicant

And

BC

Respondent

REASONS FOR JUDGMENT

1. The Applicant, who is the mother of a child called JRK, seeks a declaration that the Respondent is the father of her child. She also seeks a declaration that she is entitled to an administrative assessment of child support payable by the Respondent.

2. The Respondent has not filed any documents in reply.

Background

1. The Applicant says that she and the Respondent were, for some period of time, involved in an exclusive sexual relationship and she became pregnant. Whilst she was pregnant, she and the Respondent parted company. On 8^th October, 2001, the child JRK was born.

2. The Applicant applied for an assessment of child support, but the application was refused, because the Respondent’s name did not appear on the child’s birth certificate and there was no evidence that the parties had cohabited during the relevant time. The Applicant and the Respondent were never married.

3. The Applicant then lodged an objection to the Child Support Agency against the refusal of the Registrar to accept her application for administrative assessment of child support. This objection was unsuccessful.

4. The Application then brought the present application. The application was served on the Respondent, but he did not appear when the matter was first before the Court, on 21^st May 2002. The application was then adjourned to 4^th June, and on that occasion the Respondent did appear.

5. When the Respondent appeared at this Court on 4^th June 2002, he consented to an order that he should provide a sample to an approved laboratory for the purpose of paternity testing. Despite several appointments being made, the Respondent did not attend and did not provide a sample. The Respondent attended Court on 30^th July when he was again ordered to attend for the purpose of providing a sample for testing, and the matter was listed for final hearing today.

6. The Respondent has not attended Court today. He has not attended again for paternity testing.

The relevant law

1. Section 69VA allows the Court, as well as deciding the issue of the parentage for the purposes of proceedings, to make a declaration of parentage. Section 69W empowers the Court to make an order that parties should undergo a parentage testing procedure if the parentage of a child is a question in issue in proceedings before the Court. Section 69X enables the Court to make specific orders to require a person concerned to submit to a medical procedure or provide the necessary sample so that the parentage testing can be carried out.

2. Section 69Y, most importantly, provides for the situation where a person over the age of 18 contravenes an order under section 69W or section 69X. There is no liability for a penalty, but the subsection 69Y(2) allows the Court to draw such inferences as appear just from the contravention of the order by the person concerned.

Conclusions

1. This is not a matter where the Respondent has not attended Court, because he has attended on two of the four occasions. He has consented to orders for paternity testing. What he has not done on each occasion is to comply with the testing. I am of the view that the only reasonable inference that I can draw from the persistent failure to attend for the giving of samples for paternity testing, is that the Respondent has some specific reason as to why he does not wish to attend paternity testing. There is no evidence from the Respondent explaining his failure to attend.

2. I am also of the view that the evidence is capable of allowing the Court to draw the inference that the reason why the Respondent does not wish to attend this testing is that it is more probable than not that this testing will indeed prove the Applicant’s contention. In forming that view, I am conscious of the decision of the High Court of Australia in G v H (1994) FLC 92-504, where it was held that the inference which is to be drawn is that from the contravention of the order. The inference, if any, to be drawn will depend on the circumstances of the particular case. It was further held that an inference may be drawn contrary to the interests of a party who, although having it within his or her power to provide or give evidence on some issue, declines to do so.

3. In this case, orders were made for parentage testing, to which the Respondent consented. He failed to comply with those orders on more than occasion. In the circumstances of this case, I am satisfied that the just inference to be drawn is that it is more probable than not that the outcome of the test would be unfavourable to the Respondent. Bearing in mind the accuracy of the test that is now performed, that must lead to the finding that, on the balance of probabilities, the Respondent is the father of the child JRK. I am satisfied, therefore, that I should make a declaration pursuant to the provisions of section 69VA of the Family Law Act 1975 that the Respondent BC is the father of the child JRK, born on the 8^th October 2001. I declare that the Respondent is a resident of Australia.

4. I further declare that, pursuant to the provisions of section 106(1) of the Child Support (Assessment) Act 1989, the Applicant, MK, is entitled to administrative assessment of child support for the child, payable by the Respondent.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  6 December 2002