LEVINE & LEVINE - [2011] FMCAfam 821

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: LEVINE & LEVINE [2011] FMCAfam 821
Case: [2011] FMCAfam 821
Decision Date: 22 August 2011

CaseChat Overview and Summary

The case of Levine & Levine involved the Applicant, Mr Levine, seeking a declaration that he should not be assessed for child support for a child born in 1995, and the recovery of overpayments made. The Respondent, who had declined to consent to further parentage testing, was required to pay the Applicant for the recovery of child support payments and towards the Applicant’s costs of the application. Additionally, the court directed that an investigation be undertaken to determine whether any breach of the Legal Profession Act 2004 had been established by an unqualified person providing advice.

The legal issues before the court encompassed whether the court had jurisdiction to declare that the Applicant should not be assessed for child support, to order repayment of amounts paid under a voluntary agreement, and to recover the cost of a DNA test. Furthermore, the court needed to determine if an inference could be drawn from the Respondent’s refusal to consent to further parentage testing.

The court found that the Applicant was not the father of the child in question, based on the parentage test results, and hence, should not be assessed for child support. It was determined that the court had jurisdiction to order the recovery of overpayments made under a voluntary agreement prior to the administrative assessment of child support. The court also held that the cost of the DNA test, obtained without consent and without a relevant order, was not recoverable. Regarding the refusal to consent to further testing, the court inferred that this could impact the assessment of child support. Finally, the court found that an investigation should be initiated to determine if any breach of the Legal Profession Act 2004 had occurred.

The final orders of the court extended the time for making an application for a declaration, declared that the Applicant should not be assessed for child support, ordered the Respondent to pay the Applicant for the recovery of child support payments, and mandated the payment of costs. Additionally, the court directed that an investigation be conducted into any potential breach of the Legal Profession Act 2004.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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