LOVEGOOD & CREEVEY
[2010] FMCAfam 1113
•5 October 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LOVEGOOD & CREEVEY | [2010] FMCAfam 1113 |
| FAMILY LAW – Parentage – Application for declaration by Mother – paternity – presumption of parentage – declaration of parentage – where Respondent did not attend Court. CHILD SUPPORT – Declaration that the Respondent should be assessed for costs of child. |
| Family Law Act 1975 (Cth), s.69VA Child Support (Assessment) Act 1989 (Cth), s.106A |
| Applicant: | MS LOVEGOOD |
| Respondent: | MR CREEVEY |
| File Number: | SYC 4554 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 October 2010 |
| Date of Last Submission: | 5 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 5 October 2010 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Cole |
| Solicitors for the Applicant: | Legal Aid NSW |
| Respondent: | No Appearance |
ORDERS
A declaration that pursuant to s.69VA of the Family Law Act 1975 the Respondent Mr Creevey is the father of the child [X] born in 2010.
A declaration that pursuant to s.106A of the Child Support (Assessment) Act 1989, the Respondent Mr Creevey should be assessed in relation to the costs of the child [X] born in 2010, because
Mr Creevey is a parent of the child [X].
IT IS NOTED that publication of this judgment under the pseudonym Lovegood & Creevey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4554 of 2010
| MS LOVEGOOD |
Applicant
And
| MR CREEVEY |
Respondent
REASONS FOR JUDGMENT
The application before the Court is an application by the Mother of a little girl called [X] who was born in 2010. I am satisfied as to the date of birth from the birth certificate annexed to the Mother’s affidavit and I have also had the privilege of meeting the little girl in Court, who is here with her mother.
The orders that are sought are, in fact, declarations. First of all a declaration that, under section 69VA of the Family Law Act, the Respondent is the father of the child and second that, pursuant to section 106A of the Child Support Assessment Act, the Respondent should be assessed in relation to the costs of the child, born in 2010, because he is a parent of the child.
The Respondent is the man whom the Applicant says is the father. The Applicant has given evidence, both in affidavit and in the witness box which she has affirmed, that she started the relationship with the Respondent in June 2009. The relationship included sexual intercourse. The Applicant moved to Sydney from Queensland to be with the Respondent. She spent some time at the Respondent’s parents home and some time at his home until October 2009 when they moved into an apartment in a suburb of Sydney but they broke up about a month later.
The Respondent is not present in Court. He is, at the moment, incarcerated in the B Correctional Centre at Suburb A, New South Wales. He was served with the application and the affidavit in support. He has received a letter, a copy of which has been tendered, from the Applicant’s solicitor, advising him of the hearing date. The Respondent has not sought any order requiring him to be brought to Court for these proceedings nor has he sought to file a response or an affidavit or any document indicating that he wishes to oppose the proceedings.
He has, in fact, made no communication with the Court whatsoever nor, as I understand it, has he made any communication with the solicitor for the Applicant. Accordingly, I consider it appropriate for the matter to proceed to hearing today on an undefended basis.
The Applicant was, in fact, married in 2007 to another man,
Mr Lovegood, and she separated from him in February 2009 before she commenced the relationship with the Respondent. The Applicant’s husband has been, on her evidence, incarcerated in the state of Queensland for several years and there is no possibility that he is the father of the child.
The Applicant asserts in her affidavit, and has asserted again in her evidence to the Court today that she is certain that the Respondent is [X]'s father because he is the only person with whom she had intercourse for a period of over 12 months before the child was born. She has confirmed that she was not living with another man when she became pregnant with the child nor did she participate in any other medical procedure which would have lead to her pregnancy. She has sought these orders because of an application that she made to the Child Support Agency for an administrative assessment of Child Support.
That application was refused because the agency was not, at that stage, satisfied that the Respondent was the child’s father. Quite correctly, she has provided evidence to the Court of a letter from the Child Support Agency, dated 15th June 2010, rejecting her application because the agency said she had not supplied acceptable information that the Respondent was the child’s father. However, as a result of the evidence before the Court today, both written and oral, I am satisfied, on the balance of probability, that the Respondent is the father of the child, [X].
The evidence indicates that he and only he could have been the Father, due to the Mother’s relationship with him at the relevant times and the lack of a relationship with any other person at the relevant times. Quite clearly, I am satisfied that the Applicant’s estranged husband could not have been the child’s father, due to his imprisonment in the state of Queensland.
Accordingly, I am satisfied that I should make the declarations that the Applicant seeks. I make the following declarations:
a)The Court declares that, pursuant to section 69VA of the Family Law Act 1975, the Respondent, Mr Creevey, is the father of the child, [X], born in 2010.
b)The Court declares that, pursuant to section 106A of the Child Support Assessment Act 1989, the Respondent, Mr Creevey, should be assessed in relation to the costs of the child, [X], born in 2010 because Mr Creevey is a parent of the child, [X].
I will remove the application from the list of cases awaiting finalisation.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 8 October 2010
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