Keefe & Benbow
[2023] FedCFamC2F 1626
•23 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Keefe & Benbow [2023] FedCFamC2F 1626
File number(s): MLC 2554 of 2023 Judgment of: JUDGE J YOUNG Date of judgment: 23 October 2023 Catchwords: FAMILY LAW – CHILD SUPPORT – undefended hearing – extension of time –declaration of parentage under s 106A of the Child Support (Assessment) Act 1989 – declaration applicant entitled to administrative assessment of child support for the child payable by the respondent – Costs ordered against respondent. Legislation: Child Support (Assessment) Act 1989 ss 33, 34, 106A
Family Law Act1975 ss 69VA, 117.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 1.13(3), 2.34, 15.06
Division: Division 2 Family Law Number of paragraphs: 24 Date of hearing: 23 October 2023 Place: Melbourne Solicitor for the Applicant: Ms Zahidee of Victoria Legal Aid Solicitor for the Respondent: Did not participate ORDERS
MLC 2554 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KEEFE
Applicant
AND: MR BENBOW
Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
23 OCTOBER 2023
THE COURT ORDERS THAT:
1.Pursuant to r 15.06 of the Federal Circuit and Family Court (Family Law) Rules 2021 (Rules), the Applicant be granted leave to file and proceed with the Initiating Application out of time.
2.Pursuant to r 4.01 of the Rules, the Applicant be granted an exemption from participating in family dispute resolution and from filing a family dispute resolution certificate.
THE COURT DECLARES THAT:
3.Pursuant to s 69VA of the Family Law Act 1975 (Cth), MR BENBOW is a parent of the child, X born in 2022.
4.Pursuant to s 106A(5)(a) of the Child Support (Assessment) Act 1989 (Cth), MS KEEFE is entitled to administrative assessment of child support for the child, X born in 2022 because MR BENBOW is a parent of the child.
THE COURT FURTHER ORDERS THAT:
5.Within 60 days, the Respondent pay the costs of this application fixed in the amount of $2400.00 being the costs of Victoria Legal Aid.
6.Pursuant to r 2.34 of the Rules, the Applicant’s solicitor is to serve a sealed copy of these Orders to the Respondent forthwith by:
(a)Sending a copy of these Orders by pre-paid registered post to the Respondent’s residential address at C Street, Suburb D; and
(b)Sending a copy of these Orders to the Respondent at the Respondent’s email address.
7.The Applicant’s solicitor is to provide a sealed copy of these Orders to the Child Support Registrar forthwith.
8.All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
A.The matter was called at 9.43am, there was no appearance by or for the Respondent and the matter proceeded undefended pursuant to r 1.33(2)(a) of the Rules.
B.The Respondent has liberty to apply to set aside these Orders pursuant to r 10.13 of the Rules provided that:
(a)he makes such an application within 28 days of service upon him of these Orders; and
(b)he files an affidavit setting out the basis of the application and explaining his non- attendance at Court today.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
JUDGE J YOUNG:
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.
Before the Court is an Application seeking a declaration as to the parentage of X, born in 2022, and a declaration for the purposes of the Child Support (Assessment) Act 1989 (Assessment Act), that the child’s mother, Ms Keefe, is entitled to administrative assessment of child support.
The applicant filed an Initiating Application on 14 March 2023 in which she seeks the following orders:
(1)pursuant to s 69VA of the Family Law Act1975(Family Law Act), there be a declaration that the respondent is a parent of the child.
(2)pursuant to s 106A(5)(a) of the Assessment Act, there be a declaration that the applicant is entitled to administrative assessment of child support for the child because the respondent is a parent of the child.
(3)the respondent pay the cost of this application of $2400, being Victoria Legal Aid’s lump sum fee, within 28 days; and
(4)such further order as the Court deems fit.
BACKGROUND
The applicant deposes that she met the respondent in or around 2018. Sometime thereafter, the parties commenced a casual sexual relationship. The applicant deposes that the parties were in a casual sexual relationship from 2018 until around late 2021. In 2021, the applicant discovered that she was pregnant. The applicant’s doctor confirmed the pregnancy by blood test, and the applicant deposes that she was informed that conception occurred sometime in 2021. The applicant deposes that she was not taking contraception, and the parties did not take precautions to prevent pregnancy. The applicant deposes that she did not have sexual intercourse with anyone other than the respondent during the parties’ relationship. On the evidence of the applicant, there is no possibility of anyone other than the respondent being the father of the child.
The applicant deposes that she informed the respondent she was pregnant as soon as she found out, at around the same time the applicant and respondent ended their casual sexual relationship.
As already set out above, the child was born in 2022. The applicant deposes that she informed the respondent about the birth of the child by message on social media. The respondent has never met or spent any time with the child. The applicant deposes that she unsuccessfully sought the respondent’s signature on the Birth Registration Statement or a statutory declaration. The respondent refused, and, accordingly, the child’s birth has been registered without the respondent’s details.
Sometime thereafter, the applicant made an application with Child Support for the respondent to pay child support. On 22 August 2022, the applicant’s application for a child support assessment was rejected on the basis, in summary, that there was inadequate evidence of paternity.
In October 2022, the applicant’s solicitor wrote to the respondent seeking that the respondent either sign a statutory declaration stating he is the father or undergo an accredited DNA test, and stating that if he fails to respond or refuses a DNA test, the applicant will commence proceedings in order to establish parentage of the child. A copy of that correspondence is annexed to the applicant’s affidavit filed on 14 March 2023.
The applicant deposes that sometime in November 2022, the applicant attended the respondent’s workplace to ask him to sign the child’s birth registration statement or sign the statutory declaration stating that he is the father. The respondent refused to sign either document. The applicant deposes that on 14 November 2022, the applicant’s solicitor spoke to the respondent on telephone, whereby the respondent agreed to undertake paternity DNA testing. Subsequently, the applicant’s solicitor deposes to numerous attempts she made to arrange for the respondent to undertake DNA testing to ascertain the paternity of the child. Despite agreeing on a number of occasions to undertake such testing, the respondent has failed to do so.
APPLICATION BEFORE THE COURT
As at the date of hearing, the evidence before the Court is that the respondent has failed to undertake a DNA test and, indeed, has now ceased all communication with the applicant’s solicitor. It is for this reason that the applicant seeks a declaration of parentage pursuant to s 69VA of the Family Law Act, and a declaration pursuant to s 106A(5)(a) of the Assessment Act that the respondent, as a parent of the child, is a person to be assessed in respect of the costs of the child.
The applicant also seeks an extension of time for the filing of the application, in circumstances where an Application for a declaration under s 106A of the Assessment Act is required to be filed within 56 days after being served with a notice given under s 33 or s 34 of the Assessment Act. The notice in this case was given on 22 August 2022 pursuant to s 33.
The applicant also seeks an exemption from filing a family dispute resolution certificate. Given that these proceedings relate to parentage, the respondent’s non-participation in these proceedings and the cessation of communication with the applicant’s solicitor, I consider it unlikely that the respondent would have participated in dispute resolution. Accordingly, I am satisfied that it is appropriate for the matter to be heard and determined without the parties having participated in family dispute resolution.
Proceeding on an undefended basis
Before considering the Application, it is necessary for me to determine whether it is appropriate to proceed in the absence of the respondent. The respondent did not attend the hearing today. The respondent was called at just after 10.00am. The respondent was not in court. The applicant issued proceedings on 14 March 2023. Before the first return date on 14 June 2023, the Judicial Registrar determined that, pursuant to r 2.34 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Rules), the respondent be served in lieu of personal service with the following documents:
(1)Application for final orders filed on 14 March 2023;
(2)Application in a proceeding filed 14 June 2023;
(3)affidavit of the applicant filed 14 March 2023;
(4)genuine steps certificate filed 14 March 2023.
Pursuant to those orders, service on the respondent was to be effected by pre-paid post, email and text message.
The applicant solicitor’s affidavit of service filed on 7 July 2023 deposed to the respondent being served with the documents via registered post, email and text. The applicant solicitor’s affidavit of service filed on 6 October 2023 deposes to the respondent being served a copy of the orders made on 22 August 2023, informing the respondent of the adjourned date. Service was effected by the same three methods referred to above. I am satisfied, in those circumstances, that the applicant has served the respondent in accordance with the orders made by this Court, and that the respondent is on notice of these proceedings. I also rely on the Acknowledgement of Service filed on 27 June 2023, confirming the child support registrar was served with a copy of the documents.
The respondent has not filed any court documents in these proceedings, failing to comply with the orders of 22 August 2023 specifically requiring him to do so. The respondent has not attended any of the hearings to date. In circumstances where the respondent has failed to appear at the hearing and file material in the proceedings, I am satisfied that the applicant should have leave to proceed with her Application on an undefended basis.
CONSIDERATION
I have earlier set out the applicant’s evidence in relation to the parties’ relationship, and the reasons she believes the respondent is a parent of the child. On the basis of the applicant’s unchallenged evidence, I am satisfied on the balance of probabilities that the respondent is the parent of the child. I am satisfied it is appropriate to make a declaration of parentage pursuant to s 69VA of the Family Law Act that the respondent is a parent of the child. In relation to the child support application, I am satisfied that the applicant falls within the categories of persons who may apply for a child support assessment as a biological parent of the child. I note that, in accordance with the objects of Australia’s Child Support Scheme, both parents of the child are obliged to maintain that child. This is regardless of whether either parent has a relationship with the child, now or in the future.
The applicant applied to Services Australia for an assessment of child support in relation to the child. On 22 August 2022, the applicant was provided a notice by the child support registrar rejecting the applicant’s application for a child support assessment, as the Registrar was not satisfied on the evidence provided that the respondent was the parent of the child. I have found that the respondent is a parent of the child and have determined to make a declaration to that effect. Section 106A(3) of the Assessment Act specifies the time limit for filing an Application to the Court for a declaration, providing that the application must be made in the time prescribed by applicable Rules of Court, or such further time as is allowed under the applicable Rules of Court.
Rule 1.13(3) of the Rules requires that an application for a declaration under s 106A(2) of the Assessment Act be filed within 56 days after service on the applicant of a notice refusing an application for child support assessment. As already stated, the notice of refusal by the registrar was received by the applicant on 22 August 2022. An application for a declaration under s 106A(2) was therefore required to be filed by 17 October 2022. Accordingly, the application was some five months after the expiry of the statutory timeframe. Pursuant to r 15.06 of the Rules, the Court may grant leave for an extension of time to file an Application after the expiry of the prescribed time.
I am satisfied that the applicant has shown adequate reasons for the delay in filing, having deposed to the efforts to get the respondent to sign a statutory declaration as to the child’s parentage or sign the child’s birth registration statement, and also subsequently, to undertake DNA testing to establish the parentage of the child prior to proceedings being commenced in March 2023. I also note that the applicant contacted Legal Aid for assistance in September 2023 and that initial contact with the respondent was made soon thereafter by Legal Aid on 13 October 2023.
In relation to costs, I will make an order that the respondent pay the applicant’s costs of these proceedings fixed in the amount of $2400. The general principle that is expressed in s 117 of the Family Law Act is that each party is to bear their own costs of family law proceedings. However, the Court retains a discretion pursuant to s 117(2) of the Family Law Act to make such orders as to costs as it considers just if there are circumstances that justify it in doing so, having regard to the matters specified in s 117(2A) of the Family Law Act. No one of these factors prevails over any of the others. It is a matter of the weight that is to be accorded to each of the relevant factors in my discretion, in the circumstances of the case. There is also nothing to prevent any factor being the sole foundation for an order for costs. There are no particular features that are required in parenting cases, to the extent that this is a parenting case, which impact my discretion to make such an order for costs.
There is no evidence before me as to either party’s financial circumstances. However, I note that the applicant’s evidence is that she is in receipt of family tax benefits and a parenting payment. I take into account that the applicant is represented by Victoria Legal Aid. I take into account the conduct of the parties in relation to the proceedings, including the failure of the respondent to undertake agreed DNA testing, the adjournment of proceedings to allow this to occur, the applicant’s effort to bring the proceedings to the attention of the respondent, and the respondent’s non-participation in the proceedings and failure to comply with the orders of this Court. The fact that the respondent has not engaged in these proceedings and has repeatedly failed to undertake DNA testing, while agreeing to do so, means that the applicant has incurred legal costs via Legal Aid funding, which may otherwise have been avoided. The applicant has been wholly successful in her Application.
Taking all of the above into consideration, I consider there are circumstances justifying an order for costs in relation to these proceedings. Accordingly, I shall order that the respondent pay the cost of this Application, being the Victorian Legal Aid lump sum fee, of $2400. However, in the absence of any evidence in relation to the parties’ financial circumstances, I will provide the respondent with 60 days within which to make that payment.
Accordingly, I make the orders set out at the start of these reasons.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge J Young. Associate:
Dated: 23 October 2023
0
0
3