KAY & MABEN

[2015] FCCA 1547

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAY & MABEN [2015] FCCA 1547

Catchwords:
FAMILY LAW – Children – paternity – declaration that the applicant is the father of the respondent’s child – where respondent did not file a Response or an affidavit – where parties entered into consent orders to undergo DNA testing to ascertain paternity of child – where DNA test showed that the applicant is the father of the child.

FAMILY LAW – Children – parenting orders – where applicant sought order for him to spend time with child once paternity ascertained – child aged 3 years and 6 months – where respondent did not contest application – parental responsibility – equal shared parental responsibility – no reason for presumption to be rebutted – residence – where child has lived with respondent all her life – where respondent has always been the child’s primary caregiver – best interests of the child considered.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA, 69VA, 69W

Federal Circuit Court Rules 2001, r.13.03C

Applicant: MR KAY

Respondent: MS MABEN

File Number: SYC 2076 of 2014

Judgment of: Judge Scarlett

Hearing date: 3 June 2015

Date of Last Submission: 3 June 2015

Delivered at: Sydney

Delivered on: 3 June 2015

REPRESENTATION

Solicitor for the Applicant: Mr Cohen

Solicitors for the Applicant: David H. Cohen & Co.

Respondent: No appearance

ORDERS

1. The Applicant is granted leave to proceed ex parte.

2. It is declared in accordance with section 69VA of the Family Law Act 1975 that the Applicant MR KAY is the father of the child X (also known as X) born (omitted) 2011.

3. The Applicant and the Respondent are to have equal shared parental responsibility for the child X.

4. The child X is to live with the Respondent mother.

5. The Applicant father is to spend time with the child X as agreed between the parties.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2076 of 2014

MR KAY

Applicant

And

MS MABEN

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for a declaration that the Applicant is the father of a little girl called X, who is three and a half years old. The father also seeks an order that he can spend time with the child at times agreed with her mother, who is the Respondent to the Application.

2. The mother has not filed either a Response or an affidavit, although she did consult a solicitor, who filed a Notice of Address for Service. The parties entered into Consent Orders on 3 July 2014 providing that they should undergo a parentage testing procedure by way of providing samples of their DNA.

3. The Parentage Testing Report dated 19 August 2014 was tendered in evidence today. The Report shows that the Applicant is not excluded from identification as the child’s father, saying:

   I further report that the probability that Mr Kay is the genetic father of X[1]has been calculated as follows:

   *Mr Kay is 1417671 times more likely to produce a child with the required alleles than an unrelated man drawn randomly from the general population. This equates to a Relative Chance of Paternity of 99.99992%.

   [1] The reason why the child has the surname of “(omitted)” when her parents’ surnames are “Kay” and “Maben” has not been explained.

4. The mother’s solicitor filed a Notice of Withdrawal as Lawyer on 2 April 2015. The mother has not filed a further Notice of Address for Service.

5. The mother did not attend Court, so a decision was made to proceed with the hearing generally under the provisions of Rule 13.03C.

Paternity

1. The Parentage Testing Procedure Report clearly shows that the Applicant is the father of the child and a declaration will be made accordingly.

Parenting Orders

1. The Applicant seeks a parenting order allowing him to spend time with the child and he relies on his affidavit of 31 March 2014. He deposed in his affidavit that he engaged in a short sexual relationship with the Respondent from (omitted) until about late (omitted) or early (omitted) 2011. The Respondent gave birth to a girl on (omitted) 2011.

2. The Applicant deposed that the Respondent told him she had not placed his name on the child’s birth certificate because she did not want to. He spent time with the child on occasions at the mother’s home on various occasions until about (omitted) 2012, when he stated that the mother “refused to allow me to have more time.”[2] After he and the mother had an argument about her refusal to allow him more time with the child, he decided to wait until the paternity issue resolved.

   [2] Affidavit of Mr Kay 31.3.2014 at paragraph [14]

Conclusions

1. The child has lived with her mother since her birth, and it appears clear that an Order should be made that she should continue to do so. This would appear to be in her best interests (s.60CC, Family Law Act 1975 (Cth)). The mother has not filed a Response or an affidavit, although she has had the benefit of legal representation. She has not at any time indicated any opposition to the father spending time with his daughter. It is a reasonable inference in the circumstances that there will be a benefit to the child in having a meaningful relationship with both of her parents and there is no evidence of any need to protect her from physical or psychological harm (s.60CC(2)).

2. Consequently, I propose to order that the father should spend time with the child as agreed between the parties.

3. There is no evidence that would rebut the presumption in s.61DA(1) that it is in the child’s best interests for her parents to have equal shared parental responsibility for her, or to show that it does not apply. Consequently, I will order that the parties are to have equal shared parental responsibility for X.

4. The Applicant is not seeking an equal time arrangement with the child or that she should spend substantial and significant time with him. I am satisfied that equal time is neither in the child’s best interests nor reasonably practicable at this juncture (s.65DAA(1)). I am equally satisfied that at present it is neither in the child’s best interests nor reasonably practicable for the father to spend substantial and significant time with her (s.65DAA(2)).

5. The father may seek further parenting orders at some time in the future, but he will need to make fresh application if he wishes to do so.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date:  5 June 2015