Lavigne & Wexler

[2021] FCCA 439

FEDERAL CIRCUIT COURT OF AUSTRALIA

Lavigne & Wexler [2021] FCCA 439

File number(s):

DNC 107 of 2020

Judgment of:

JUDGE YOUNG

Date of judgment:

11 February 2021

Catchwords:

FAMILY LAW – parentage – whether the child should be served with a copy of the application – where the child is over eighteen years of age – where the applicant seeks a declaration of parentage – where the applicant seeks an amendment to the birth certificate of the child – order for the child to be served with a copy of the application

Legislation:

Family Law Act 1975 (Cth)

Child Support (Assessment) Act 1989 (Cth)

Number of paragraphs:

8

Date of last submission:

11 February 2021

Date of hearing:

11 February 2021

Place:

Darwin

Solicitor for the Applicant:

Maleys Barristers & Solicitors

Counsel for the Applicant:

Ms Koulianos

Counsel for the Respondent:

No appearance by the Respondent

ORDERS

DNC 107 of 2020

BETWEEN:

MR LAVIGNE

Applicant

AND:

MS WEXLER

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	11 FEBRUARY 2021

THE COURT ORDERS THAT:

1.That the applicant file and serve an amended initiating application within 14 days to add a further ground that the applicant seeks a declaration pursuant to s 107 of the Child Support (Assessment) Act 1989 (Cth) that he is not the father of the child.

2.That the matter be adjourned to 16 April 2021 at 9.30am for further consideration.

3.That the applicant arrange for a copy of the amended initiating application to be served on the adult child by personal service as soon as reasonably practicable.

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

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

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. This is a twofold application. One aspect is for a declaration of parentage under section 69VA of the Family Law Act 1975 (Cth) (“the Act”) declaring that the applicant is not the father of the child, Mr A Lavigne, who was born 2002. It is apparent from the date of birth that Mr A Lavigne is now an adult. Further, the applicant seeks a declaration in accordance with sections 69Q and 69R of the Act. It is unclear what the reference to sections 69Q and 69R is intended to mean because they are sections which give rise to presumptions of parentage. They do not appear relevant to this application. The second aspect of the application is that there be an order amending the birth certificate of the adult child.

3. Ms Koulianos, appearing for the applicant, has in her written submissions effectively sought to amend her application to pursue a declaration under section 107 of the Child Support (Assessment) Act 1989 (Cth) as to the child’s parentage rather than under section 69VA of the Act. I will direct that the amended initiating application be further amended to add an additional ground that the applicant seeks a declaration pursuant to section 107 of the Child Support (Assessment) Act that he is not the father of the child.

4. The mother has not appeared in the proceeding. I raised with Ms Koulianos my concern that a declaration of the kind that she sought on behalf of her client may affect the rights of the adult child. Ms Koulianos effectively abandoned the application in respect of the declaration under section 69VA, but, as I said, pursues the application pursuant to section 107 of the Child Support (Assessment) Act. It appears to me that the application to amend the birth certificate must, however, involve a declaration under section 69VA of the Act though I am not certain about that.

5. Ms Koulianos said that in respect of the application to amend the birth certificate she will arrange for service on the adult child. However, she stated that she wants the order pursuant to section 107 of the Child Support (Assessment) Act made without having the adult child served.

6. I think there is a distinct possibility that the child’s interests may be affected by such a declaration. The obvious one is if the applicant were to die then under any intestacy legislation it may be that the adult child would be a beneficiary of some kind under that legislation. I am satisfied, particularly in respect of section 69VA of the Act, that the adult child’s rights may be affected by such a declaration. For that reason I am satisfied that he ought to be served.

7. Ms Koulianos asserted that the declaration pursuant to section 107 of the Child Support (Assessment) Act would only affect the right to collect child support. That may be correct to some extent, but I am not completely convinced by that argument. The declaration is dependent upon a finding that the applicant is not the parent. It appears to me that this may affect the rights of the adult child.

8. In the circumstances I am not prepared to make either order.  I direct that the amended application be served on the adult child, and I will adjourn the matter for mention to 16 April 2021 at 9.30 am.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       9 March 2021