Madison and Orton

FAMILY COURT OF AUSTRALIA

MADISON & ORTON

[2010] FamCA 372

FAMILY LAW - ORDER - Applicant is subject to a s 118 order which restrains him from filing any further applications in this Court without first obtaining permission - Applicant has applied for permission to commence proceedings to file an application for paternity testing – Where four children over 18 – Application for paternity testing may not be made in a vacuum - Reasonable likelihood of success - The proposed application lacks a reasonable likelihood of success - Application dismissed

Family Law Act 1975 (Cth) ss 69W, 118, r 11.05
Child Support (Assessment) Act (1989) ss 24, 34, 107(4)

TNL & CYT (2005) FamCA 77

APPLICANT:

Mr Madison

RESPONDENT:

Ms Orton

FILE NUMBER:

(P)HBF

615

2001

DATE DELIVERED:

11 May 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

The Hon. Justice Ryan

HEARING DATE:

22 April 2010

REPRESENTATION

APPLICANT:

In person

REPONDENT:

No appearance

Orders

That the Application in a Case filed by Mr Madison on 9 March 2010 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: HBF615 of 2001

MR MADISON

Applicant

And

MS ORTON

Respondent

REASONS FOR JUDGMENT

Mr Madison (who I shall refer to as “the applicant”) has applied for permission to commence proceedings “to file an application for paternity testing”. Permission is necessary because on 9 March 2004, pursuant to s 118 of the Family Law Act 1975 (Cth), the Court ordered: “That the father [Mr Madison] be restrained from filing any further applications in this Court other than an appeal against this order without first obtaining permission of a Judge of the Court.” The s 118 order has not subsequently been discharged or varied.
In support of his application the applicant relied on an affidavit filed by him on 9 March 2010.
An application for permission to start or continue a case by a person against whom a s 118 restraint order operates attracts the application of r 11.05. Rule 11.05 is set out below:
(1)    This rule applies if:
(a) the court has made an order under subsection 118 (1) of the Act or paragraph 11.04 (1) (b); and
(b)the person against whom the order was made applies for permission to start or continue a case.
(2)    The application must be in an Application in a Case and must be made without notice to any other party.
Note An applicant must file an affidavit stating the facts relied on to establish the need for the orders sought (see rule 5.02).
(3)    On the first court date for the application:
(a) the court may dismiss the application; or
(b)the court may:
(i) order the person to:
(A) serve the application and affidavit; and
(B) file and serve any further affidavits in support of the application; and
(ii) list the application for hearing.
(4)    The court must not grant permission to start or continue a case unless it is satisfied that the case has a reasonable likelihood of success.
By r 11.05(4) the Court: “Must not grant permission to start or continue a case unless it is satisfied that the case has a reasonable likelihood of success”. This requires a preliminary assessment of the merits of the applicant’s application which, if leave were granted, would be initiated by him. Although applications for permission to start a case may be dealt with in chambers in this case it was difficult to determine in a way favourable to the applicant the merits of his proposed application. Accordingly, the application for permission to start a case was listed for hearing but without notice to the respondent. This hearing occurred on 22 April 2010. The applicant, who appeared without legal representation, spoke to his application and provided additional material for the Court’s consideration. This additional material comprised a report by Dr W, who is a psychiatrist, dated 24 May 2006. It appears that this report was prepared in the context of charges in which it was alleged the applicant “behaved in an offensive manner” and “malicious damage”. The Court is grateful to the applicant for provision of the report which, although not necessarily germane to the matters at issue in these proceedings, provided useful background.
Annexed to the applicant’s affidavit filed 9 March 2010 are a bundle of documents, including orders made in this Court at Hobart on 9 March 2004. Relevantly, the order 2 identifies that the applicant and proposed respondent are the parents of five children. They are N born in 1987, A born in 1988, T born in 1991, H born in 1992 and L born in 1996. As the children’s dates of birth demonstrate, L is the only child who has not celebrated his 18^th birthday.
The applicant deposes:
There has been no contact between the father and children since temporary orders were made in April 2003.
He said:
... medical documents regarding my fertility and an independent written opinion regarding my ability to father children have been pursued over the past 8 years obtaining them has been extremely difficult exacerbated by the misinformation initially told to me by these doctors, the deliberate lies of my doctor regarding an amphetamine induced delusional mental illness and the continued denial of access to these records regarding my fertility by the medical practitioner. (See attached (B1), (B2)). I have finally obtained access to some medical records regarding my fertility and an opinion of Dr [O] regarding paternity (see attached (C1), (C2), (C3)). The stated number being normal is not consistent with those of medical texts I have examined.
Attached to the applicant’s affidavit is a report from Dr O. Dr O’s report is as follows:
I saw [Mr Madison] today, 26^th August. As you know he was inquiring abut the paternity of his children. He had a vasectomy reversal back in 1999 and a follow-up semen analysis which was almost completely normal. I have no doubt that it is possible that he has fathered the children. On the other hand I was unable to provide a definite opinion without consent of the children to have testing for paternity. I have advised [Mr Madison] accordingly and indicated there was no further assistance I could provide.
Also attached to the applicant’s affidavit is a report by Dr J S, who is a reproductive biologist, dated 9 November 1999. This report is a semen analysis report which reports against a selection of semen characteristics. Dr S does not express an opinion about whether the criteria reported upon indicate whether the applicant could possibly have fathered the children referred to above. Apparently, at least partly reliant upon Dr S’s semen analysis report, two days later Dr O reported he had told the applicant: “That his sperm count was normal at 21 million sperm/ml semen.”
It is the applicant’s contention, as the Court understood it, that the medical material attached to his affidavit does not support the medical opinions expressed in the annexed reports. Namely that his sperm count was normal and it is possible he fathered the children. Although the applicant will not be happy to read this, the medical evidence relied upon by him is more consistent with a finding that he could have fathered the subject children than it is with a finding he could not have fathered the children.
Section 69W of the Family Law Act 1975 is as follows:
(1)If the parentage of a child is a question in issue in proceedings under this Act, the court may make an order (a parentage testing order) requiring a parentage testing procedure to be carried out on a person mentioned in subsection (2) for the purpose of obtaining information to assist in determining the parentage of the child.
(2)A court may make a parentage testing order:
(a)on its own initiative; or
(b)on the application of:
(i)a party to the proceedings; or
(ii)an independent children’s lawyer representing the child’s interests under an order made under section 68L.
(3)A parentage testing order may be made in relation to:
(a)the child; or
(b)a person known to be the mother of the child; or
(c)any other person, if the court is of the opinion that, if the parentage testing procedure were to be carried out in relation to the person, the information that could be obtained might assist in determining the parentage of the child.
(4)A parenting testing order may be made subject to terms and conditions.
(5)This section does not affect the generality of section 69V.
In TNL & CYT (2005) FamCA 77 the Full Court said:
The Court’s power to make an order for parentage testing is clearly subject to the parentage of the child being ‘a question in issue’ in proceedings under the Act. To satisfy this threshold question, the authorities suggest that the applicant must overcome two hurdles. First parentage must be relevant to the nature of the proceedings …
The second component of the threshold question is that there must be evidence which places the parentage of a child in doubt. ….
At this time the only application before the Court is the application for permission to commence an application for a parentage testing procedure. Although he did not identify that paternity would be a “question in issue” in the substantive proceedings the applicant alluded to the potential that he may have paid child support, assessed at the statutory minimum, for children who were not his. Through a combination of the children’s ages and the nature of the material presented by the applicant the Court deduced that the only potential “question in issue” could be an application for a declaration pursuant to s 107(4)(1) of the Child Support (Assessment) Act 1989 (“CSAA”). Thus for the sake of completeness the Court considered whether, although unstated by the applicant, he might nonetheless seek to amend his application so as to seek relief pursuant to s 107(1) of the CSAA. Section 107(1) is set out below:
If the Registrar accepts an application for administrative assessment of child support for a child, an application may be made, subject to subsection (1A) to a Court having jurisdiction under this Act for 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.
An application for a s 107 CSAA declaration must be filed within 28 days after receiving a notice under s 34 CSAA. A s 34 CSAA notice is a notice that the Child Support Registrar has accepted an application for administrative assessment of child support. It also includes a notice to the recipient that the recipient may object to the Child Support Registrar’s decision. Although argument was not addressed to the point, it is the Court’s preliminary view that an application for a s 107 declaration may only be made in relation to a child who is under the age of 18 years. See s 24 CSAA. This would limit any such application to only the two youngest of the applicant’s children.
The applicant did not provide evidence as to when he received the s 34 notice. The inference is that it was a long time ago. Undoubtedly the Court has a discretion to extend time to commence a s 107 CSAA declaration. Although the applicant reported he had difficulty obtaining the medical evidence attached to his affidavit, it is the Court’s opinion that even if this material had been made available to him sooner, it would not have positively influenced any application for an extension of time, nor an assessment that a putative s 107 application had a reasonable likelihood of success. It is the Court’s assessment that any proposed application for a s 107 CSAA declaration would have very limited prospects of success. This conclusion weighs heavily against any application by the applicant to extend time being assessed as likely to receive favourable consideration. In the Court’s assessment the applicant’s prospects of success would be very limited. It follows that the Court is satisfied that a putative application for a declaration under s 107 of the CSAA lacks a reasonable likelihood of success.
The applicant alluded to the possibility that he may seek to re-establish contact with his children. Once again, their ages would limit any such application to his two youngest children. It seemed to the Court that such an application was at best a theoretical possibility, which when regard is had to the passage of time since the applicant last had contact with his two youngest children would have very limited prospects of success.
If per chance the Court misinterpreted the applicant’s submissions as suggesting he may intend to commence an application for a s 107 CSAA declaration, it is noteworthy that a Court may only make a parentage testing order where “parentage of a child is a question in issue in proceedings under this Act”. In other words, the Court may not make a parentage testing order in a vacuum. It follows that if leave were granted to commence the proposed application it too lacks a reasonable likelihood of success.
For these reasons the applicant has failed to establish that he should be granted permission to start a case.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate:

Date: 11 May 2010

[2010] FamCA 372

11 May 2010

Key Legal Topics

Areas of Law

Civil Procedure