Lynton & Penzack
[2024] FedCFamC1F 671
•3 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lynton & Penzack [2024] FedCFamC1F 671
File number: SYC 5983 of 2024 Judgment of: CAMPTON J Date of judgment: 3 October 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the primary case of the applicant is that he was not a parent of the child – Where the mother and the child live in Country B and have travelled to Australia for a holiday – Where the applicant attempted to use the placement of the child on the Family Law Watchlist as an instrument to require the mother to submit the child for a parentage test – Where the applicant’s conduct shadows an abuse of process – Where orders were made removing the child from the Family Law Watchlist. Legislation: Child Support (Assessment) Act 1989 (Cth) s 107
Family Law Act 1979 (Cth) ss 69VA, 69ZW
Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 3 October 2024 Place: Sydney Solicitor for the Applicant: Dorter Family Lawyers & Mediators Solicitor for the Respondent: Litigant in person ORDERS
SYC 5983 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LYNTON
Applicant
AND: MS PENZACK
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
3 OCTOBER 2024
THE COURT ORDERS THAT:
1.The Australian Federal Police are hereby requested to remove the names of the mother, Ms Penzack born in 1987, and the child, X born 2023, from the Family Law Watchlist.
2.The proceeding be referred to the Deputy Chief Justice for consideration of the transfer of the proceeding to the Federal Circuit and Family Court of Australia (Division 2) with a listing before a judicial registrar for further directions.
3.It is noted that the mother agrees to undertaking together with the child the parentage testing procedure as proposed by the applicant in his Application in a Proceeding filed 2 August 2024. In this regard, the applicant is to do all things as are necessary to forward to the mother by email (...@...) and to the judicial registrar a draft form of order providing for the parentage testing procedure by way of DNA sample to be undertaken within 14 days of this order. It is anticipated those orders will be actively considered by the judicial registrar on the listing in Division 2.
4.It is noted that issue may exist as to payment of the parentage testing procedure in the first instance. That will be a matter for the judicial registrar to determine.
5.The mother is to file a Notice of Address for Service within seven days recording her email as identified in these orders for service of notices in respect of these proceedings.
6.In so far as is necessary both the mother and the applicant have leave to appear by Microsoft Teams for the purposes of a listing before a judicial registrar in Division 2.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lynton & Penzack has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CAMPTON:
This proceeding has been listed before me this afternoon after an order was made today by a judicial registrar in the Federal Circuit Court and Family Court of Australia (Division 2) transferring the proceedings to this Court for determination of urgent issues as to the parenting of a child, X (“the child”), born 2023.
BACKGROUND
Mr Lynton (“the applicant”), by way of an Initiating Application filed on 2 August 2024, sought by way of primary relief:
(a)Pursuant to s 107 of the Child Support (Assessment) Act 1989 (Cth) a declaration that he was not the parent of the child X, born 2023; and
(b)For reimbursement of any child support paid pursuant to an administrative assessment of child support received by the child's mother, Ms Penzack (“the mother”).
In the alternative, he sought pursuant to s 69VA of the Family Law Act 1979 (Cth) (“the Act”) that he be declared a parent of the child and thereafter orders that he and the mother be responsible for joint long-term decision-making in respect of the child, that the child live with the mother, and he spend time with the child and communicate with the child as agreed between he and the mother.
At the same time as filing the Initiating Application, the applicant filed an Application in a Proceeding seeking the conduct of a parentage testing procedure pursuant to s 69ZW of the Act by way of DNA sampling, orders as to the preservation of periodic child support as paid, and an order that the mother be restrained by injunction from removing the child from Australia. He further sought that the Australian Federal Police be notified to place the child's name on a Family Law Watchlist, so as to ensure that the child was not removed from the jurisdiction.
It is uncontroversial that:
(a)the mother has been a resident in Country B since March 2023; and
(b)the child was born in Country B; and
(c)the mother and child have travelled from Country B to Australia for a holiday.
The applicant makes complaint as to the mother avoiding service of his Initiating Application. He says that the placement of the mother and the child on the Family Law Watchlist is necessary so as to ensure that the mother engaged in the parentage testing procedure.
The applicant has indicated today that he does not oppose the mother and the child returning to Country B “on condition” that the parentage testing procedure is undertaken “prior to their return”.
It is uncontroversial that:
(a)the mother and the child were scheduled to leave Australia to return to live in Country B in late 2024 and were stopped at the airport by way of the notification made by the applicant to the Australian Federal Police on filing of the applicant’s Initiating Application; and
(b)the mother and child are currently staying in temporary accommodation and do not receive support from the Commonwealth of Australia by way of Medicare benefits or social security.
The mother contends that the applicant does not pay periodic child support for the child.
CONSIDERATION
The approach taken by the applicant in placing the child and the mother's name on the Family Law Watchlist resonates with an abuse of process. His conduct ought not receive a modicum of endorsement. He is restraining the freedom of movement of the mother to achieve his objective of she and the child engaging in a DNA parentage testing procedure. The applicant’s conduct is made more egregious by way of his primary position being that he is not a parent of the child.
The mother has indicated that, if possible, she will attempt to return with the child to Country B, leaving tomorrow. The current retention of the child and therefore its sole carer, the mother, in this jurisdiction, ought not continue for one moment longer than is necessary.
The applicant contends that there are logistical and enforcement issues in undertaking a standardised DNA parenting testing procedure if the mother and the child are in Country B. He accepts there is no evidence before the Court to support that contention. It may or may not be accurate. That said, the failure of the mother to undertake a parentage testing procedure if ordered may result in he having capacity to proceed with the determination of the primary relief identified in his Initiating Application on an undefended basis.
The mother has indicated today that she will undertake the DNA parentage testing procedure as sought by the applicant. Issues exist as to which party ought to be responsible for the costs of the procedure, at least in the first instance. That can be determined by the judicial registrar. For all of these reasons I make the orders as set out herein.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 3 October 2024
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