KORBELL & ASHTON

[2014] FCCA 2600

FEDERAL CIRCUIT COURT OF AUSTRALIA

KORBELL & ASHTON [2014] FCCA 2600

Catchwords:
CHILD SUPPORT – Declaration that Respondent should be assessed in relation to costs of the applicant’s child – where Respondent did not attend court on the hearing of the application.

FAMILY LAW – Paternity – declaration that Respondent is the father of the Applicant’s child – where Respondent did not attend court – where Respondent resides in the United Kingdom – where Respondent did not file any Response or affidavit.

PRACTICE AND PROCEDURE – Service – personal service – dispensation with personal service – substituted service by post – where Respondent resides in the United Kingdom.

Legislation:

Child Support (Assessment) Act 1989 (Cth), ss.29, 30, 106A

Family Law Act 1975 (Cth), ss.69V, 69VA

Applicant: MS KORBELL

Respondent: MR ASHTON

File Number: SYC 2749 of 2014

Judgment of: Judge Scarlett

Hearing date: 11 November 2014

Date of Last Submission: 11 November 2014

Delivered at: Sydney

Delivered on: 11 November 2014

REPRESENTATION

Solicitor for the Applicant: Ms Cameron

Solicitors for the Applicant: Legal Aid NSW

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 Respondent MR ASHTON is the father of the child X born on (omitted) 2004.

3. It is declared in accordance with section 106A of the Child Support (Assessment) Act 1989 that the Respondent MR ASHTON should be assessed in relation to the costs of the child X born on (omitted) 2004 because the said Respondent is a parent of the child with effect from 12 June 2008.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2749 of 2014

MS KORBELL

Applicant

And

MR ASHTON

Respondent

REASONS FOR JUDGMENT

As Corrected

Application

1. This is an Application by the Mother of a boy called X for declarations that the Respondent is X’s father and that the Respondent should be liable for an assessment of child support in respect of the child. X was born on (omitted) 2004 and lives with his mother.

Service

1. The Applicant’s lawyer filed an Application in a Case seeking orders dispensing with the requirement for personal service of the Court documents and that service could be effected by posting the documents to the Respondent both at his residential address and care of his employer in the United Kingdom.

2. On 15^th July 2014 his Honour Judge Kemp made orders accordingly.

3. The Applicant has now filed an affidavit of service affirmed on 23^rd July 2014, advising that the documents were forwarded to the Respondent in accordance with his Honour’s orders.

4. I am satisfied as to service.

Procedural History

1. The substantive Application and the Application in a Case were both returnable on 15^th July 2014, on which date Judge Kemp made the Orders dispensing with the requirement for personal service and listed the matter for mention before me on 9^th September 2014. However, the Applicant, by way of a latter to the Court dated 27^th August 2014, sought an administrative adjournment.

2. The Application was adjourned to 11^th November 2014. The Applicant attended Court on that day but the Respondent did not. The Respondent has not filed a Response or an affidavit in reply to the Application.

Evidence and Submissions

1. The Applicant relied on her affidavit of 2^nd May 2014 and gave short oral evidence. She deposed that she commenced a sexual relationship with the Respondent in 2002, when she was 15 years old. The relationship continued until August or September 2003. She did not have a sexual relationship with any other man for the whole of 2003. She discovered that she was pregnant in May 2003.

2. The Applicant deposed that she registered the child’s birth without naming the father. The Father later signed an acknowledgment to have his name added to the child’s particulars of birth but she elected not to apply to the Registrar of Births, Deaths and Marriages to change the particulars of the child’s registration. This was to prove to be an error.

3. The Applicant also stated that the Father moved to the United Kingdom in 2004 and has lived there permanently ever since. However, he visited Australia on three occasions since his move to the United Kingdom and spent time with the child and acknowledged him as his son on each occasion.

4. The Father married in 2012 and has had no contact with the child since then.

5. The Mother applied to the Child Support Agency in 2008 for an administrative assessment of child support. Her application was refused because the Child Support Agency was not satisfied that the Respondent was the child’s father. She sought legal advice and was told that there was nothing she could do to obtain proof of paternity.

6. The Applicant again applied for child support in February 2014. Her application was refused and a copy of the letter of refusal dated 20^th February 2014 is annexed to her affidavit.

7. The Applicant again sought legal advice and her current solicitor commenced proceedings on her behalf.

8. It is the Applicant’s evidence that she has had the care of the child X since his birth.

Parentage Evidence

1. Section 69V of the Family Law Act 1975 (Cth) permits the Court, if the parentage of a child is a question in issue in proceedings under the Act, to make an order requiring any person to give such evidence as is material. The Applicant has given oral and written evidence and the Respondent would have been directed to give evidence had he attended Court.

2. Section 69VA of the Act empowers the Court not only to decide the issue of parentage of a child after receiving evidence, but to issue a declaration of parentage for the purposes of all laws of the Commonwealth.

Declaration of Parentage

1. I am satisfied from the Applicant’s evidence that the Respondent is the father of the child X. I propose to issue a declaration that the Respondent is the father of X.

Declaration that a person should be assessed in respect of the costs of the child

1. Section 106A of the Child Support (Assessment) Act 1989 (Cth) permits the court to make a declaration should be assessed in respect of the costs of the child (i.e. an assessment of child support) where:

   a)the Child Support Registrar has refused to accept an application for administrative assessment of child support under s.30(2) of the Act; and

   b)one of the reasons for the refusal was that the Registrar was not satisfied under s.29 that the person to be assessed was a parent of the child.

Conclusions

1. I am satisfied that the Applicant has established that the Respondent is the father of the child X, who was born on (omitted) 2004. I am also satisfied that the Applicant has applied for an assessment of child support which was refused because the Registrar was not satisfied that the Respondent is a parent of the child.

2. I propose to make a declaration that the Respondent should be assessed in respect of the costs of the child because the Respondent is a parent of the child.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  11 November 2014

Corrections:

(1) The date in Order 3 was changed from 20 February 2014 to 12 June 2008.