Maddrey & Jane

[2021] FCCA 866

FEDERAL CIRCUIT COURT OF AUSTRALIA

Maddrey & Jane [2021] FCCA 866

File number(s):

BRC 16116 of 2020

Judgment of:

JUDGE JARRETT

Date of judgment:

9 March 2021

Catchwords:

FAMILY LAW– the Family Law Act 1975 (Cth) and related legislation – child support legislation – declaration.

Legislation:

Child Support (Assessment) Act 1989 (Cth) ss 29, 33, 33(3), 33(3)(b), 106A(2), 106A(2)(a), 106A(2)(b), 106A(5), 106A(5)(a), 106A(5)(b), 106A(6)

Family Law Act 1975 (Cth) s 69VA

Number of paragraphs:

11

Date of last submission/s:

9 March 2021

Date of hearing:

9 March 2021

Place:

Brisbane

Counsel for the Applicant:

Mr Cameron

Solicitor for the Applicant:

Redhill Legal

The Respondent:

No appearance

The Child Support Registrar appeared as a Friend of the Court

ORDERS

BRC 16116 of 2020

BETWEEN:

MS MADDREY

Applicant

AND:

MR JANE

Respondent

ORDER MADE BY:	JUDGE JARRETT
DATE OF ORDER:	9 MARCH 2021

THE COURT DECLARES upon being satisfied that the Respondent is a parent of the child X, born in 2017 (the Child):

1.Pursuant to s 106A of the Child Support (Assessment) Act 1989 (the Act), that the Respondent, MR JANE, shall be assessed in respect of the costs of the Child under the Act, and

2.Pursuant to s. 106A of the Act that the Registrar of the Child Support Agency is taken to have accepted the application for administrative assessment lodged by the Applicant, MS MADDREY, on or about 4 October 2017.

IT IS NOTED:

1.These orders were made in the absence of the respondent and that pursuant to rule 16.05(2)(a) of the Federal Circuit Court Rules2001 the respondent may apply to have these orders set aside.

Notation: So as to remove any doubt this Order shall be read with the Order made by the Court on 26 September 2018 in proceeding BRC6411/2018 as amended by the Court pursuant to r. 16.05(2)(e) of the Federal Circuit Court Rules 2001 on 28 January 2020 in the within proceeding to correct the misnomer of the Respondent’s name as it originally appeared in the Order made on 26 September 2018.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE JARRETT:

1. This is an application that came before me for the making of declarations as to parentage.  I made some declarations as to the parentage of the particular child who is the subject of these proceedings in 2018.  That declaration was made under the provisions of the Family Law Act 1975 (Cth). It declared that the respondent to the proceedings was the father of the relevant child. The application was necessary because the applicant had applied for child support and the application had been refused on the basis that the Registrar was not satisfied that the respondent was the father of the relevant child. I made a declaration under the Family Law Act that respondent was the father of the relevant child.

2. That apparently is insufficient for the Child Support Registrar to be able to determine the application for child support and the argument that is put is that it is necessary to make a declaration under s 106A(2)(a) of the Child Support (Assessment) Act 1989 (Cth), that a person should be assessed in respect of the costs of the child because the person is a parent of the child.

3. Courts generally only make declarations when the making of declarations are necessary.  The making of a declaration is usually only necessary when there is contention between parties about their rights settled by the making of the declaration.

4. Here, oddly, the contention seems to be between the applicant and the Child Support Registrar, for it is the Child Support Registrar who insists upon the making of the declaration. But again, the Court should only make a declaration if it is necessary to do so, otherwise the Court has no purpose in making a declaration. The making of a declaration is always discretionary. Section 106A bears that out in subsection (5) where it provides that the Court may grant the declaration if the Court is satisfied of certain things.

5. It is not ordinarily the case that the Court would make a declaration just to satisfy the needs or wants of some government department.  It is generally only made to quell disputes between protagonists to a justiciable controversy.  The argument put here is that upon making the application for child support, the Registrar was not satisfied that the respondent was a parent of the relevant child, and so determined the application for child support against the applicant.

6. It was said that in doing so, there was an obligation on the Registrar – as indeed there seems to have been under s 33 of the Act, to notify the applicant of certain matters. One of the requirements set out in s 33(3) is to give a statement to the relevant applicant where the Registrar was not satisfied under s 29 that the respondent to the application was a parent of the child and that was one of the reasons the Registrar refused to accept the application. The statement must be to the effect that an application may be made to a Court having jurisdiction under the Act, for a declaration under s 106A, that the person should be assessed in respect of the costs of a child because the person is a parent of the child. The requirements of s 33(3)(b) underscore that the application for the declaration is discretionary, that is, an applicant does not need to make one. It refers to a declaration under s 106A, the making of which I have already indicated is a discretionary exercise on the part of the Court.

7. The question really ultimately is whether the making of the declaration under the Family Law Act as to parentage has any sort of retrospective operation insofar as the application for child support is concerned. A couple of things ought to be noted. The first is that the declaration in this case that was made in 2018 operates between the parties to the proceedings that were before the Court then, and no doubt is something to which the Child Support Registrar would give appropriate acknowledgement. It is a declaration of paternity under s 69VA of the Family Law Act. So that’s the first thing. The second thing is that as a matter of common sense really, once a parent, always a parent. Even though one might deny parentage, if subsequently a Court is satisfied that a person is a parent and makes a declaration to that effect, the effect of the declaration is to recognise paternity or parentage for all time. It would be an absurd result that a person would not be seen to be a parent of a child for the period up to the making of a relevant declaration, but thereafter to be seen as a parent.

8. So the effect of the making of the declaration in 2018 in this case was, for all times, to declare the respondent a parent of the relevant child. The question then becomes, what is the effect of that, insofar as the obligations of the Child Support Registrar are concerned under the Child Support (Assessment) Act? It is necessary to analyse in a little more detail s 106A. First, it should be acknowledged that s 29 of the Act permits the Child Support Registrar to determine an application for child support against an applicant solely on the basis that the Registrar is not satisfied that the respondent is a parent of the child, or alternatively, it might be refused for that reason, amongst others.

9. Section 106A recognises that because in ss 106A(2) and 106A(5), it talks about different subject matter that might be the subject of declarations that might be applied for under those subsections. In each case, subsection (a) refers to the circumstance where the only reason for the Registrar refusing to accept the application was that a person should be assessed in respect of the costs of the child because the person is a parent of the child.  Subsection (b) talks about the circumstance where that was one of the reasons. 

10. The effect of granting a declaration is set out in s 106A(6). Again, it’s bifurcated into circumstances where the only reason for the Registrar refusing to accept the application is a lack of satisfaction about parentage, or secondly, where that is one of the reasons. In the first case, s 106A(5)(a) provides that the Registrar is taken to have accepted the application for administrative assessment of child support. Subsection 106A(6) talks about if the Court grants “the declaration”. Presumably, that is a reference – an inelegant reference to a declaration under 106A(5)(a) or (b), although contextually, it probably is a reference in each of the subparagraphs to the respective subparagraphs in s 106A(5). But if the Court makes that declaration, then the effect is, as I have stated.

11. Having regard to what fell from the representative for the Child Support Registrar that there was an obligation on the Registrar to accept or reject an application for child support when it is made – and there are certain statutory obligations about the time within which that might be done, and in this case, having regard to the fact that the application for child support was not accepted, and the only reason was because the Registrar was not satisfied about the respondent’s parentage, it seems that notwithstanding the declaration under s 69VA of the Family Law Act, there may not be retrospective operation of that declaration for the purposes of the Child Support (Assessment) Act. As odd as that might be, the declaration that is now pressed by the applicant at the insistence of the Child Support Registrar would put it beyond doubt, apparently, that the application should be taken to have been accepted. It seems an awful lot of trouble, having regard to the fact that the respondent was always a parent of this particular child - and was declared to be so by the Court so long ago, but out of deference to the way in which the Child Support Registrar has determined that the Act operates, and in the absence of any contrary argument, I am satisfied that it is necessary to make the declaration sought. I so declare.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 9 March, 2021.

Associate:

Dated:       29 April 2021