LEVINE & LEVINE
[2011] FMCAfam 821
•22 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEVINE & LEVINE | [2011] FMCAfam 821 |
| CHILD SUPPORT – Declaration – declaration that Applicant should not be assessed for child support – recovery of overpayments – adjustment of parties’ rights under Child Support (Assessment) Act 1989 (Cth), s.143 – relevant considerations – where parentage test showed Applicant excluded from identification as father of child subject to administrative assessment of child support – where Respondent declined to consent to further parentage test – inference to be drawn. CHILD SUPPORT – Recovery of amounts paid where no liability exists – whether the Court has jurisdiction under Child Support (Assessment) Act 1989 to order repayment of amounts paid for the child under a voluntary agreement made prior to the making of an administrative assessment of child support. CHILD SUPPORT – Cost of DNA test – cost of parentage test obtained by one party without the knowledge or consent of the other and without an order having been made under Family Law Act 1975 (Cth), s.69W not recoverable under Family Law Act 1975, s.117(2) or Child Support (Assessment) Act 1989, s.143(1). PRACTICE & PROCEDURE – Application for leave to commence out of time. COURTS AND PROFESSIONAL PRACTICE – Unqualified person giving advice – whether a breach of the Legal Profession Act 2004 (NSW), s.14 established. |
| Child Support (Assessment) Act 1989 (Cth), ss.29, 33, 34, 100, 107, 143 Child Support (Registration and Collection) Act 1988 (Cth), s.111C Child Support Legislation (Reform of the Child support Scheme – New Formula and Other Measures) Act 2006 (Cth) Family Law Act 1975 (Cth), ss.61C, 69R, 69U, 69V, 69W, 69Z, 117 Legal Profession Act 2004 (NSW), s.14 Family Law Regulations 1984 (Cth), Part IIA Federal Magistrates Court Rules 2001, Rules 3.05, 25A.06 |
| Child Support Registrar v Z (2002) 28 Fam LR 543; [2002] FamCA 182 DRP & AJL [2004] FMCAfam 440 F & Z [2005] FMCAfam 394 |
| Applicant: | MR LEVINE |
| Respondent: | MS LEVINE |
| File Number: | SYC 1358 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 22 July 2011 |
| Date of Last Submission: | 22 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 22 August 2011 |
REPRESENTATION
| Solicitors for the Applicant: | E.H. Tebbutt & Sons |
| The Respondent: | In person |
ORDERS
The time for making an Application for a declaration under subsection 107(1) of the Child Support (Assessment) Act 1989 is extended to 8 November 2010.
THE COURT DECLARES that the Applicant MR LEVINE should not be assessed in respect of the costs of the child [X] born [in] 1995 because MR LEVINE is not a parent of the child.
The Respondent is to pay to the Applicant the sum of $12,969.34 by way of recovery of child support payments under s.143 of the Child Support (Assessment) Act 1989 within twelve (12) months of the date of this Order.
The Respondent is to pay towards the Applicant’s costs of this Application the sum of $4,038.50 within four (4) months of the date of this Order.
The Principal Registrar of the Court is to forward a sealed copy of this Decision to the Professional Standards Department of the Law Society of NSW at 170 Phillip Street, Sydney in the State of New South Wales with a view to an investigation being undertaken as to whether any breach of section 14 of the Legal Profession Act 2004 has been established.
IT IS NOTED that publication of this judgment under the pseudonym Levine & Levine is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1358 of 2010
| MR LEVINE |
Applicant
And
| MS LEVINE |
Respondent
REASONS FOR JUDGMENT
Application
The Applicant is asking the Court to make a declaration under the provisions of s.107 of the Child Support (Assessment) Act 1989 that he should not be assessed in respect of the costs of the child [X] who was born [in] 1995 on the basis that he is not the child’s father.
The Applicant is also asking the Court to make an order under s.143 of the Act that the Respondent repay to him the amount of $12,888.50 (calculated as at 9th September 2010) as reimbursement of the following:
a)$4,064.00 paid for the child’s school fees;
b)$1,402.51 paid for the child’s Bali holiday expenses; and
c)$7,421.00 (calculated as at 9th September 2010) paid to the Child Support Agency in respect of the child.
The Applicant also asks the Court to make an order that the Respondent reimburse him for the cost of a parentage test report conducted by DNA Solutions dated 24th June 2010 in the sum of $695.00.
He seeks an order that the Respondent pay his costs of the Application.
In order to conduct these proceedings, the Applicant needs leave to file and serve his Application out of time.
The Respondent, who is the child’s mother, filed a Response on 16th February 2011, opposing all of the orders sought by the applicant with the exception of the application for leave to proceed out of time.
Background
The Applicant was born [in] 1955.
The Respondent was born [in] 1954.
The parties commenced living together in 1983. They were married [in] 1984. They separated on 2nd January 2009 and were divorced on 23rd May 2010.
The child [X] was born [in] 1995. The Applicant’s name was recorded on the child’s birth certificate as the child’s father. [X] lives with the Respondent.
The Applicant underwent a parentage test on 3rd June 2010. He took the child with him. He did not tell the Respondent what he was doing. On 24th June 2010 the testing laboratory, DNA Solutions Pty Ltd, prepared a report stating that the Applicant was not the biological father of the child [X].
The Applicant telephoned the Respondent on 19th August 2010 and advised her of the result of the DNA test.
In September 2010 the Applicant sought legal advice and on 22nd September the Applicant’s solicitors wrote to the Respondent, advising her of their client’s intentions to commence proceedings in this Court.
The Respondent consulted an Independent Advocate, Ms M, who wrote to the Applicant’s solicitors on 5th October 2011, saying that the Applicant had acted inappropriately by taking the child for a DNA test without the Respondent’s knowledge or consent. Ms M wrote that:
a)without a sample of the mother’s DNA the test is not as accurate;
b)the Respondent no longer trusts the Applicant; and
c)if the matter were to proceed to Court the letter would be lodged together with a statement from the child and his mother.
There was further correspondence between the Applicant’s solicitors and Ms M, but the matter did not resolve.
On 8th November 2010 the Applicant commenced proceedings in this Court.
The Respondent filed a Response, an affidavit and an affidavit on 16th February 2011 and a Financial Statement on 7th March.
On 8th March 2011 the Court ordered a stay of payments of child support under the provisions of s.111C of the Child Support (Registration and Collection) Act 1988.
The parties attended Court for a final hearing on 22nd July 2011. The application proceeded on the papers by way of submissions and neither party gave oral evidence.
Evidence
The Applicant relies on his affidavit sworn on 5th November 2010. In that affidavit, he deposes that:
a)The child [X] was born [in] 1995, during the marriage and he had no reason to doubt that he was the child’s father;[1]
b)On separation from the Respondent, he came to an agreement with her that in lieu of paying child support through the Child Support Agency he would pay for the child’s school fees, clothing and holiday spending money;[2]
c)He paid a total of $4,064.00 to [S] School for the child’s fees in the year 2009;
d)The Respondent sought an administrative assessment of Child Support through the Child Support Agency and an assessment issued with effect from 1st November 2009;[3]
e)The Applicant commenced making payments of child support and from 8th February 2010 the sum of $772.33 was deducted from his salary each month;[4]
f)The Applicant’s mother made comments to him from about the time the child was four years of age that he bore no resemblance to either him or his own father, to whom he bore a strong resemblance;[5]
g)Other friends and family members commented to him that the child did not appear to resemble him;[6]
h)In April 2010 the Applicant made inquiries about paternity testing and on 3rd June the Applicant and the child attended the testing centre for a DNA test;[7]
i)The Applicant received a report from DNA Solutions in June 2010 stating that he was excluded from identification as the child’s father;[8] and
j)The Applicant stated that he was prepared to undergo a further DNA test with the Respondent as he was aware that a test without the Respondent’s DNA was not as accurate as a test that did include the mother.[9]
[1] Affidavit of Mr Levine 5.11.2010 at paragraph [3]
[2] Ibid at [4]
[3] Ibid at [6]
[4] Ibid at [7]
[5] Ibid at [8], [10] and [12]
[6] Ibid at [9]
[7] Ibid at [13]
[8] Ibid at [14], Annexure “G”
[9] Affidavit of Mr Levine 5.11.2010 at [20]-[21], Annexure “G”
The Respondent deposed in her affidavit sworn or affirmed on 14th February 2011 that:
a)Child support was not paid to her until December 2009 and the Applicant was forced to pay by the Child Support Agency;[10]
b)She requests that the Applicant should be assessed for the costs of the child because she had always believed that the Applicant was the child’s father;[11]
c)She was unaware that the father and the child had undergone a DNA test;[12]
d)The child was unaware of the nature of the test;[13]
e)She opposes the Applicant’s claim for reimbursement of costs;[14]
f)She opposes any order for a DNA test;[15]
g)She opposes (presumably disagrees with the contents of) paragraphs 8, 9, 10, 15, 20, 21 and 22 of the Applicant’s affidavit.[16]
[10] Affidavit of Ms Levine 14.2.2011 at paragraphs [4]-[5]
[11] Ibid at [7]
[12] Ibid at [8]
[13] Ibid at [9]
[14] Ibid at [10]
[15] Ibid at [11]
[16] Ibid at [12]
The Respondent annexed a statement to her affidavit in which she stated that she had always believed that the Applicant was the child’s father. She did not wish to undertake a DNA test because she believed that it would cause the child emotional pain:
He has already suffered enough with [Mr Levine] stopping all contact with him since June 2010…This has been an extremely difficult time and difficult to comprehend given the very loving relationship [X] and [Mr Levine] had shared for 14 years to just suddenly cease.[17]
[17] Affidavit of Ms Levine 14.2.2011 Annexure “A”
The Respondent’s Financial Statement shows her total average weekly income as $1145.00 and her total personal expenditure as $700.00 per week. She estimates the total value of her property, a Holden Commodore and household contents, at $54,000.00 and her superannuation at $60,000.00.
Submissions
The Respondent told the Court that she would not undergo a DNA test. It was put to her by the Bench that the effect of her refusal to undergo a DNA test may lead to an inference being drawn by the Court and she said that she understood the effect of her decision.
Ms Deirmendjian, who appeared for the Applicant, told the Court that her client did not take issue with the matters set out in the Respondent’s Financial Statement.
It was submitted that the Applicant should be granted leave to commence proceedings out of time. Ms Deirmendjian noted that Rule 25A.06(1) requires an applicant for a declaration under s.107 of the Child Support (Assessment) Act 1989 to file the application within 56 days of the service of a notice of an application for administrative assessment of child support.
As the applicant was assessed for child support in November 2009 he should have filed an application by January 2010 but did not do so until November of that year.
Ms Deirmendjian submitted that there was a satisfactory explanation for the delay in making an application, as doubts about parentage did not arise until some time after the assessment of child support had issued. The Applicant’s doubts only reached the stage that he decided to inquire about paternity testing in April 2010 and it was not until late June that he received the results of the paternity testing.
It was further submitted that the Applicant had established a basis for the Court to make a declaration under s.107 of the Child Support (Assessment) Act 1989, even though the Respondent has complained about the testing process. The submission is that:
a)The Applicant, as the child’s father, provided the relevant consent under s.69Z of the Family Law Act 1975;
b)The test was conducted by a reputable organisation and, apart from the absence of a Court order, the report complies with the Regulations;
c)Whilst the Respondent has taken issue with the testing process, she has not taken issue with the conclusion in the report that the applicant is not the child’s father; and
d)The Court may draw inferences under sections 69Y and 69Z of the Family Law Act 1975 when a party either contravenes a parentage testing order or fails or refuses to agree to the making of orders for further parentage testing.
The Applicant seeks repayment from the Respondent under s.143 of the Child Support (Assessment) Act 1989 of the following amounts:
a)Payment of the school fees (in lieu of child support) $4064.00
b)Payment of child’s holiday expenses $1402.51
c)Payments of child support to the CSA $12969.34
Total$18435.85
The Applicant’s solicitor noted that the Child Support Agency makes reference to having retained $3983.35 which is yet to be applied or paid to the Respondent.
The Applicant also seeks reimbursement of the sum of $695.00 paid to DNA Solutions for the parentage testing report.
The Applicant also seeks costs in the sum of $6026.20 up to and including the date of hearing. It is submitted that the legal costs would have been substantially less if the Respondent to the proposed orders in the Applicant’s solicitors’ letter to the Respondent of the 22nd September 2011.
The Applicant submits that the Respondent has a greater capacity to pay than her Financial Statement would suggest. Subpoenaed documents produced by the Respondent indicate that she paid for a
Mr F to travel from The Netherlands to Sydney and return on two occasions in 2009. The documents indicate that she paid a total of $3940.14 for Mr F’s travel expenses.
It was also submitted that the Respondent had paid further travel-related expenses between April and August 2009 amounting to $2300.52.
The Applicant submits that the Respondent has the capacity to repay the amounts sought and to pay the Applicant’s legal costs.
Whether Leave Should be Granted
The Respondent did not object to the application being brought out of time. Whilst the Applicant submitted that “In the Response filed on 16 February 2011, the respondent does not oppose the interim order for leave to file and serve the Application out of time” it is clear that there is no opposition to the proceedings being commenced out of time. It is artificial to submit that a party can consent to an application to commence proceedings out of time on an interim basis but not on a final basis. An application is either brought out of time or it is not.
The Respondent is critical of the Applicant for waiting until the child was 14 or 15 years old before taking any action to query his paternity.[18] However, the Applicant deposed that his mother had started making comments about the child’s paternity from the time the child was about four years old, in about 1999. The Applicant also deposed that in early 1988 he had caught the Respondent in a compromising position with a neighbour, but that incident was about seven years before the child was born.
[18] See letter from Ms M to the applicant’s solicitors 5.10.2010 Annexure “K” to affidavit of Mr Levine 5.11.2010
The facts are similar to those described by Riethmuller FM in DRP & AJL[19], where his Honour said at [17]:
There was nothing, of which the applicant was aware, which would have led him to have any doubt as to the paternity of the child. It is not appropriate to suggest that the applicant ought to have taken any active steps to inquire of the mother as to the paternity of the child when the child was conceived in a matrimonial relationship where there was no suggestion of infidelity. Indeed, to make such enquiries would be offensive and destructive to the relationship that most married spouses enjoy. There is no conduct of the applicant with respect to these issues, that should be the subject of criticism.[20]
[19] [2004] FMCAfam 440
[20] [2004] FMCAfam 440 at [17]
Once the Applicant in this matter had obtained the result of the DNA test, he took steps to deal with the situation, first by seeking to resolve the matter without the necessity of litigation, and then by bringing an Application later that same year.
Subsection 107(2) prescribes that the application must be made within the time prescribed by the applicable Rules of Court or within such further time as is allowed under those Rules. The applicable rules are the Federal Magistrates Court Rules 2001. Subrule 25A.06(1) provides that:
A person must file an application for a declaration under subsection 106A(2) or 107(1) of the Assessment Act within 56 days of the service on the applicant of a notice given under section 33 or 34 of that Act.
Section 33 refers to a notice that the Child Support Registrar has refused to accept an application for administrative assessment of child support. Section 34 refers to a notice that the Registrar has accepted an application for administrative assessment of child support.
The Respondent applied for an administrative assessment of child support in about November 2009 and the Applicant deposed that he received an assessment and commenced paying that assessment in December 2009.[21] To comply with Rule 25A.06 the Applicant would have had to file an Application before the end of January 2010. However, the evidence is that he did not become suspicious enough to act on those suspicions until April 2010 and did not receive the result of the DNA test until late June of that year.
[21] Affidavit of Mr Levine 5.11.2010 at [7]
In my view the Applicant has provided a satisfactory explanation for the delay in making an application for a declaration. The Court has the power to extend the time for making an application under Rule 3.05.
I propose to order that the time for making an application for a declaration under s.107(1) of the Child Support (Assessment) Act 1989 be extended to the date on which the Application was filed, namely 8th November 2010.
Whether a Declaration Should be Made
The Respondent is critical of the Applicant for the way he went about obtaining the DNA test, where he did not tell her of his intention to do so and did not tell the child what the test was about. The Applicant submits that he had the power to consent to the child having the parentage testing under s.69Z of the Family Law Act 1975, but I am doubtful that this section gives the Applicant as much power as has been submitted. Subsection 69Z(1) provides that:
This section applies if a parentage testing order, or an order under section 69X, requires a medical procedure or other act to be carried out in relation to a child who is under 18.
There was no order. However, there was no parenting order in force and the Applicant, as a parent (as he thought) of the child, had parental responsibility under s.61C of the Act.
The fact is, however, that there is no challenge to the result of the test that was obtained by this means.
The Applicant sought interim orders that the Respondent should also submit to DNA Parentage testing to supplement the test taken by the Applicant and the child. However, the Respondent refused to consent to this procedure.
When the child was born, the Applicant’s name was recorded on the child’s birth certificate. The Applicant deposed:
I had no reason to doubt that I was [X]’ father.[22]
[22] Affidavit of Mr Levine 5.11.2010 at [3]
There is a presumption of parentage resulting from the registration of a person’s name as a parent of a child in a register of births, under s.69R of the Act. However, that is a presumption that may be rebutted. Section 69U provides that the presumption is rebuttable by proof on a balance of probabilities.
In F & Z[23], Walters FM held at [86] et seq. that a presumption such as that recorded in s.69R is of little assistance to the Court where a party leads evidence – “even relatively weak evidence” – to rebut the presumption.
[23] [2005] FMCAfam 394
Where a child’s parentage is a question in issue, the Court may, under s.69V, make an order requiring a person to give material evidence. The Court may make a parentage testing order under s.69W.
However, the Respondent has refused to consent to such an order. Under subsection 69Z(3), the Court may draw such inferences from a failure or refusal to consent as appear just in the circumstances.
Clearly, if there were to be a second DNA test, both parents and the child would have to be involved for the test to be any more accurate than the one already conducted. The Respondent’s refusal to consent to such an order means that no further test can be carried out. In my view, the inference that the Court can reasonably draw is that a further DNA test would not assist to show any different result from that already shown by the earlier test.
In the circumstances, I am satisfied that the Court should make a declaration under subsection 107(1) of the Child Support (Assessment) Act 1989 that the Applicant should not be assessed in respect of the costs of the child because the Applicant is not a parent of the child.
Whether an Order Should be Made for Recovery of Child Support Payments from the Payee
The Applicant seeks orders that the Respondent should repay various amounts paid on behalf of the child under the provisions of s.143 of the Child Support (Assessment) Act 1989. It is within the Court’s discretion as to whether or not the Respondent should be ordered to repay all or part of the sum of $18,435.85 sought by the Applicant. The discretion is to be exercised by the Court having regard to what the Court considers to be “just and equitable”.
Subsection 143(3A) was inserted by the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006. The subsection states:
If:
(a) a person (the payer) has paid an amount of child support to another person (the payee); and
(b) the court has made a declaration under section 017 that the payer should not be assessed in respect of the costs of the child because the payer is not a parent of the child; and
(c) the court:
(i) is considering whether to make an order under this section; or
(ii) if such an order is to be made, is determining the amount that is to be recovered and whether payment is to be made in the form of a lump sum payment or periodic amount;
then the court must have regard to the matters set out in subsection (3B). This subsection does not limit subsection (3).
Subsection 143(3B) sets out the six factors to which the Court must have regard. Whilst the Court may have an unfettered discretion, it is still bound to consider all of these factors.
(a) Whether the payee or the payer knew or suspected, or should reasonably have suspected, that the payer was not a parent of the child.
Whilst the Applicant had had regular contact with the child ever since he was a baby, it was only when the child reached the age of about four that the Applicant’s mother raised her concerns over the fact that the child did not resemble the Applicant in any way. However, the Applicant had no other cause to suspect that he was not the father of the child, because the child was born during the marriage. The compromising situation in which the Applicant found the Respondent with the neighbour had occurred approximately seven years before the child was born, so it is hardly surprising that the Applicant had no suspicions about the paternity of the child for a number of years.
It is not unreasonable for the Applicant to have formed the view that he was the father of the child. As the evidence shows that the Applicant is excluded from identification as the father of the child, it is a reasonable inference that the Respondent must have had some idea that the Applicant was not the father. However, the Respondent has led no evidence on this issue, and it is not possible to make a finding of fact as to the extent of any reasonable suspicion the Respondent must have had about the child’s paternity.
Once the Applicant obtained proof from the results of the DNA test, he acted promptly in commencing legal action and, in due course, filing an application for a declaration.
(b) Whether the payee or the payer engaged in any conduct (by act or omission) that directly or indirectly resulted in the application for administrative assessment of child support for the child being accepted by the Registrar.
Both parties engaged in conduct that resulted in the application for administrative assessment of child support being accepted by the Registrar.
Subsection 29(2) of the Child Support (Assessment) Act 1989 sets out various circumstances whereby the Registrar is to be satisfied that a person is a parent of a child. Two paragraphs of that subsection apply:
(2) The Registrar is to be satisfied that a person is a parent of a child only if the Registrar is satisfied:
(a) that the person is or was a party to a marriage and the child was born to the person, or the other party to the marriage, during the marriage; or
(b) that the person’s name is entered in a register of births or parentage information, kept under a law of the Commonwealth or a State or Territory or prescribed overseas jurisdiction as a parent of the child;
The child was born during the course of the parties’ marriage. Both parties consented to be listed on the child’s birth certificate.
(c) Whether there was any delay by the payer in applying under section 107 for a declaration once he knew, or should reasonably have known, that he was not a parent of the child.
The Applicant had become suspicious that he may not be the father of the child, but it was not until early 2010 that the Applicant’s mother said to him words to the following effect:
“[X] is looking less and less like you. There is nothing similar, not even his ears or toes or fingers”.[24]
[24] Affidavit of Mr Levine 5.11.2010 at [12]
The Applicant deposed that he agreed with his mother. He made inquiries in April about a paternity test and, by subterfuge, arranged for the child and himself to provide samples on 3rd June. The Applicant received the report dated 24th June 2010 shortly after that date.
The Applicant did not contact the Respondent immediately. He said:
It took me some weeks to come to grips with the content of the DNA Solutions report.[25]
[25] Ibid at [15]
It was not until 19th August that he telephoned the Respondent and told her about the report. It was in early September that the Applicant sought legal advice, and correspondence ensued between 22nd September and 16th October 2010. No resolution was reached.
The Applicant filed his Application and Affidavit in support on 8th November 2010.
I am not satisfied that, in the circumstances, there was any delay by the Applicant in applying for a declaration under section 107 of the Child Support (Assessment) Act 1989.
(d) Whether there is any other child support that is, or may become, payable to the payee for the child by the person who is a parent of the child.
There is no evidence as to the identity of the child’s natural father. The Applicant has referred to an incident involving a man who was a neighbour seven years before the child was born, but that does not go any way towards establishing that this particular person is the child’s natural father.
Consequently, in the absence of any evidence, the Court is unable to make any finding as to whether any other child support is or may become payable by the child’s natural father.
(e) The Relationship between the Payer and the Child
The evidence is that the Applicant had a relationship with the child in the belief that he was the child’s father. Apparently, neither party has told the child about the results of the DNA test.
The Applicant lived with the Respondent and the child from the time of the child’s birth until the Applicant left the former matrimonial home on 2nd January 2009. The parties agreed to an informal arrangement for the child to spend time with the Applicant. The Applicant and the child holidayed together in Bali in April 2009.
However, on the Respondent’s affidavit evidence, what was a loving relationship between the Applicant and the child came to an abrupt halt when the father stopped all contact him in June 2010. As the Respondent deposed:
This has been an extremely difficult time and difficult to comprehend, given the very loving relationship [X] and [Mr Levine] had shared for 14 years to just suddenly cease.[26]
[26] Affidavit of Ms Levine 14.2.2011 Annexure “A”
The evidence suggests that this child is still unaware that the Applicant is not his father. For him, this has been an unfortunate situation not of his own making. In January 2009, the parties separated and the person whom the child thought was his father moved out of the matrimonial home. Less than a year and a half later, the child’s father figure no longer has anything to do with him. Effectively, he is now without a father, through no fault of his own.
From the child’s point of view, his father (as he thought) has rejected him, for no apparent reason. The Applicant’s desire to find out the truth about the child’s paternity will result in a financial benefit to him, at the expense of “collateral damage” to the child.
One might well ask why, if [X] does not know about the result of the paternity test, the Applicant should not continue to give this child the benefit of his time, support and encouragement. An adult can still have a loving, nurturing relationship with a child even if the adult is not the child’s biological parent. Australian society is full of people who have loving relationships with their step-children or adopted children.
(f) The Financial Circumstances of the Payer and the Payee.
There is very little evidence about the Applicant’s financial circumstances, as he has not filed a Financial Statement. From his affidavit, it appears that he is in employment as a [omitted]. He was paying $772.33 per month from his salary to the Child Support Agency, which increased to $791.67 on 9th November 2010 and $796.67 on 7th December. Those payments should have been suspended with effect from the date of the Stay ordered by this Court on 8th March 2011, but the Child Support Payer Transaction Statement for the period 13/11/2009 to 11/7/2011 shows that a further salary deduction of $796.57 was made on 7th April 2011.
He has paid a total of $4,064.00 to [S] School for the child’s school fees in 2009. He also paid the sum of $2,805.02 for the holiday in Bali with the child in April 2009.
The Applicant has a bank account with HSBC and a Gold Credit Card with HSBC. There are no other financial details.
The Respondent has filed two Financial Statements, on 2nd February and 7th March 2011. Each of those documents shows on page 12 that it was prepared by “Ms M, Independent Advocate”.
The Financial Statement filed on 7th March 2011 shows the following information about the Respondent:
a)Total average weekly income $1145.00
b)Total personal expenditure $ 700.00
c)Total value of property owned $54,000.00
d)Total gross value of superannuation $60,000.00
e)Total liabilities No details provided
f)Total financial resources No details provided
The breakup of the Respondent’s weekly income, as shown in her Financial Statement, is as follows:
a)Total salary or wages before tax $800.00
b)Family Payment $145.00
c)Child Support paid by the Applicant: $200.00
Clearly, the $200.00 paid by way of child support will have been suspended as a result of the Stay order, and the declaration to be made by the Court under s.107(1) of the Child Support (Assessment) Act 1989 will mean that this amount will no longer be paid by the Applicant.
The child is shown as having an income of $100.00 per week, which apparently comes from his part time work with [omitted].
The Respondent also stated in her statement annexed to her affidavit:
My father will also provide financial assistance as required.[27]
[27] Affidavit of Ms Levine 14.2.2011 Annexure “A”
The Respondent shows a payment of $100.00 per week by her father, Mr H, towards the child’s school fees.
The Applicant’s solicitor notes in her written submission that:
The Child Support Agency makes reference to having retained $3,983.35 which is yet to be applied or paid to the respondent.[28]
[28] Applicant’s submission 18.7.2011 at paragraph [17]
The Respondent does not disclose any liabilities but pays $20.00 per week off her Visa account.
The Respondent discloses a bank account with a modest balance of $500.00, a 1996 Holden Commodore valued at $4000.00 and household contents worth $50,000.00.
Orders that are just and equitable
Subsection 143(3) of the Act provides that:
In proceedings in a court under this section, the court may make such orders in relation to the payee as it considers just and equitable for the purposes of adjusting, or giving effect to, the rights of the parties and of the child concerned.
The Applicant seeks that the Respondent repay the following amounts under s.143:
a)Payment of child’s school fees – a third party payment in lieu of child support $4,064.00
b)Payments of child’s holiday expenses – a third party payment in lieu of child support $1,402.51
c)Direct payments of child support paid to the Child Support Agency $12,969.34
The total figure sought is $18,435.85.
The payments to the child’s school were all made between 20th March and 21st October 2009. The payments were made as the result of an agreement between the parties, prior to any administrative assessment of child support having been made. The assessment does not seem to have been made until 13th November 2009, according to the Child Support Payer Transaction Statement that forms Annexure “F” to the Applicant’s affidavit.
It is doubtful, to say the least, that payments made by an informal agreement between the parties prior to an administrative assessment of child support being made are recoverable under s.143 of the Child Support (Assessment) Act 1989.
The declaration made under s.107(1) is a declaration that a person should not be assessed in respect of the costs of the child because the person is not a parent of the child. Whilst this clearly covers payments of child support under an administrative assessment, it does not, in my view, have any retrospective effect. Subsection 143(1) states:
(1) If:
(a) an amount of child support is paid by a person (the payer) to another person (the payee); and
(b) the payer is not liable, or subsequently becomes not liable, to pay the amount to the payee:
the amount may be recovered from the payee in a court having jurisdiction under this Act.
Consequently, I am satisfied that this Court does not have any jurisdiction under the Child Support (Assessment) Act 1989 to order repayment of amounts paid under a voluntary agreement between the parties prior to the making of an administrative assessment of child support. Thus, the Applicant’s claim for repayment to him of amounts paid for the child’s school fees in 2009 and the child’s holiday expenses in Bali in April 2009 must fail.
The Applicant may have a remedy against the respondent to recover those amounts in a State Court having a civil jurisdiction.
However, it follows that the Court does have jurisdiction to order repayment to the Applicant the sum of $12,969.34 paid by way of child support payments to the Child Support Agency under the administrative assessment of child support.
The Applicant’s solicitor has drawn the Court’s attention to the fact that the Child Support Agency has retained the sum of $3,983.35 which is yet to be applied or paid to the Respondent. The Court does not have power to order recovery of that amount from the Child Support Registrar (Child Support Registrar v Z[29] at [44]-[46]). An order for recovery can only be made against the payee, in this case, the Respondent. Subsection 143(4) makes it clear:
(4) An amount paid to the Commonwealth under section 30 of the Registration and Collection Act is to be taken, for the purpose of this section, to have been paid to the payee.
[29] (2002) 28 Fam LR 543; [2002] FamCA 182
Thus, it follows that an order for recovery can only be made against the Respondent. I propose to order that the Respondent should pay to the applicant by way of recovery of child support payments for which the Applicant was not liable the sum of $12,969.34.
The Applicant seeks to recover from the Respondent the sum of $695.00 paid to DNA Solutions for the parentage testing report. It is difficult to see the basis upon which the Court would have jurisdiction to make such an order.
The Family Law Act 1975 and the Federal Magistrates Court Rules 2001 apply to proceedings under the Child Support (Assessment) Act 1989. Thus, in making an order for costs, the Court is bound by s.117 of the Family Law Act 1975. The cost of a DNA test obtained by the Applicant on his own initiative, without the knowledge or consent of the Respondent and not as a result of an order under s.69W of the Family Law Act 1975 cannot form part of an order for costs under s.117(2) of the Act. This is so, even if the test otherwise complied with the procedures specified by Part IIA of the Family Law Regulations 1984.
I am not satisfied that the cost of a DNA test obtained in such circumstances is recoverable under s.143 of the Child Support (Assessment) Act 1989. It is not an amount of child support paid by one party to the other. Consequently, that claim must fail.
Costs
The Applicant seeks an order that the Respondent pay his legal costs from 5th October 2010 up to and including the date of hearing in the sum of $6.026.20. That amount is made up as follows:
a)Professional costs and disbursements up to and including 22 July 2011 $5,582.20
b)Hearing fee $ 444.00
Total $6,026.20
As has already been set out, costs in this jurisdiction are covered by section 117 of the Family Law Act 1975. Costs are discretionary, and if the Court is considering what order should be made under s.117(2), the Court must consider the matters set out in s.117(2A).
I have considered the financial circumstances of the parties at [80] to [92] above.
Neither party is in receipt of assistance by way of legal aid.
The conduct of the parties is relevant in that the Applicant initiated correspondence with the Respondent in an endeavour to negotiate some form of resolution without the necessity of protracted court proceedings, but the Respondent declined to make any admissions.
Neither party has failed to comply with any previous court order.
The Respondent has not been wholly unsuccessful in these proceedings, but the Applicant has been granted leave to make an application out of time, has obtained a declaration under s.107(1) of the Act and will obtain an order that he recovers the amount of child support paid under the administrative assessment.
There is no evidence of any offer to settle the proceedings apart from the matters discussed in open correspondence between the Applicant’s solicitors and the Respondent’s Independent Advocate, Ms M.
Whilst I am of the view that the Respondent’s capacity to pay is limited, and I take into account the fact that the Respondent is facing an order for recovery of the sum of $12,693.34 in payments of child support, I am satisfied that an order for costs is appropriate.
In my view, costs should be awarded on a party and party basis, taking account of Schedule 1 of the Rules. There were two mentions and a half day hearing. Applying the scale, I assess the costs payable as follows:
a)Stage 1 – Initiating application up to completion of first court day, including daily hearing fee plus advocacy loading $1808.00
b)Mention on 8.3.2011 $382.50
c)Hearing on 22.7.2011 $1404.00
Total $3594.50
Disbursement – hearing fee $444.00 444.00
Total costs and disbursement $4038.50
I am satisfied that the Respondent should pay the Applicant’s costs fixed in the sum of $4038.50.
Time to Pay
It is clear that the Respondent does not have the capacity to pay the amounts ordered by this Court at short notice. Accordingly, I propose to allow a period of four months to pay the costs and twelve months to pay the sum of $12,969.34 payable under s.143 of the Child Support (Assessment) Act 1989.
The Independent Advocate
The Respondent was not legally represented. However, she sought the assistance of one Ms M, of PO Box [omitted], who styles herself as an Independent Advocate. Ms M states that she is not a solicitor of barrister and does not give legal advice.
However, Ms M played a significant role in these proceedings:
a)She engaged in correspondence with the Applicant’s solicitors on 5th and 16th October 2010;[30]
b)The Court records show that she attended this Court to mention the matter on behalf of the Respondent on 8th February and 8th March 2011; and
c)She prepared the Respondent’s Financial Statements filed on 2nd February and 7th March 2011.
[30] Affidavit of Mr Levine 5.11.2010 Annexures “K” and “M”
I am not aware as to whether Ms M charged any fee to the Respondent for the actions she took on her behalf. However, there is a serious concern that her involvement in the Respondent’s case has all the appearances of engaging in legal practice. If that is the case, there may be a breach of section 14 of the Legal Profession Act 2004 (NSW), which prohibits a person from engaging in legal practice in New South Wales unless the person is an Australian Legal Practitioner.
I have sufficient concern that I consider that the Principal Registrar should forward a copy of this decision to the Professional Standards Department of the Law Society of NSW, at 170 Phillip Street, Sydney, with a request that consideration should be given to carrying out an investigation of the circumstances of Ms M’s involvement in this matter.
I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 22 August 2011
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