Meilnik and Jenk

[2014] FamCA 18

FAMILY COURT OF AUSTRALIA

MEILNIK & JENK [2014] FamCA 18

FAMILY LAW – DECLARATION – Application for declarations as to paternity where the proceedings are undefended but where the respondent participates in initial hearing before a registrar and makes admissions and concessions.
FAMILY LAW – COSTS.

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)

APPLICANT: Mr Meilnik

RESPONDENT: Ms Jenk

FILE NUMBER: MLC 7925 of 2013

DATE DELIVERED: 14 January 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 14 January 2014

REPRESENTATION

THE APPLICANT: In Person

FOR THE RESPONDENT: No appearance

Orders

1. That the applicant have leave to proceed on an undefended basis.

2. That pursuant to s 107 of the Child Support (Assessment) Act 1989 (Cth) the Court declares that Mr Meilnik should not be assessed in respect of the costs of the child W born … August 2012 as he is not a parent of the child.

3. That pursuant to s 69VA of the Family Law Act 1975 (Cth), the Court declares that the applicant Mr Meilnik is not a parent of the child W born … August 2012.

4. That the respondent pay the costs of the parentage testing procedure and the consequential preparation of the report by B Pty Ltd.

5. That the respondent pay the applicant’s costs fixed in the sum of $1000.

6. That the orders this day and in due course, the reasons for judgment arising out the orders, be served upon the respondent by ordinary post to … C Street, Suburb D, Qld.

7. That the application filed 17 September 2013 be otherwise dismissed.

8. That the reasons this day be transcribed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Meilnik & Jenk has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7925 of 2013

Mr Meilnik

Applicant

And

Ms Jenk

Respondent

REASONS FOR JUDGMENT

1. This is the return date of an initiating application filed by Mr Meilnik on 17 September 2013.  The respondent to the proceedings is Ms Jenk.  Ms Jenk has been called outside of the court earlier this morning, and there has been no appearance.  In addition to that, no lawyer has announced an appearance on her behalf today, nor has she filed any documents, and no person has filed a Notice of Address for Service on her behalf.

2. The procedural history of this case is that, having been filed on 17 September, the case was listed before Registrar Moser on 16 October 2013.  Shortly prior to that hearing, an application or request to attend by electronic communication was filed by Ms Jenk.  Registrar Moser, in chambers, granted the application for the hearing to be conducted by telephone.  The applicant attended that day as well, and although the documents were drawn by lawyers who appear to have acted for him all of the way through these proceedings, he has always attended the proceedings himself.

3. Accordingly, I have requested that he file a Notice of Address for Service. 

4. On 16 October 2013, Ms Jenk, who had indicated in the request that she was going to be with a solicitor, appears to have attended personally and without representation.  The applicant has given oral evidence today which indicates that, in the hearing, Ms Jenk told the Registrar that she had been served with all of the documents, and that she did not dispute that the applicant was not the father of the child W, (“the child”). 

5. Further, she told the Registrar that the applicant’s name had been removed from the child’s birth certificate, and that she had notified the Child Support Registrar not to pursue child support.  Registrar Moser appears to have been disquieted by all of that, and was not prepared to make orders on a final basis.  She therefore adjourned the proceedings to another procedural hearing on 27 November 2013, and made a notation to the order that the respondent was intending to seek legal advice with a view to resolving all issues by consent.

6. The notation went on to say that if consent orders were sought, the matter was to be listed in the Judicial Duty List on the basis that the Registrar did not have power to make the final orders.  The notation also said that if there was no resolution, then the mother was to file answering material for the adjourned date. 

7. The return date of the application was then 27 November 2013 before Registrar Marrone.  Again, the applicant appeared in person, but upon that occasion, there was no request for attendance by electronic communication by the respondent and she had not filed any documents nor sent any correspondence to the Court.

8. The Registrar then made an order that the matter be adjourned until today into the Judicial Duty List.  She ordered that both parties appear and/or be represented on the hearing date.  Importantly, the Registrar made an order that the respondent comply with orders made on 16 October 2013 in relation to the filing of material and extended the time to 20 December 2013 for that to occur.  It goes without saying that no documents were then filed.

9. To ensure that the respondent was aware that these proceedings were listed, the applicant arranged for a process server to serve the order of the Registrar made on 27 November 2013.  According to an affidavit that I have from the court file, sworn by Mr E, on 6 December 2013, at C Street, Suburb D in the State of Queensland, he personally served the order on a person who identified herself to him as Ms Jenk.  Not only did she so identify herself, but she also signed a document acknowledging service.

10. Whilst I am not a handwriting expert, the acknowledgement of service signature, signed on 6 December 2013, looks remarkably like the signature on the Request to Attend by Electronic Communication for the hearing on 16 October 2013. 

11. The applicant has given evidence today that he identified the voice of Ms Jenk, so I can safely presume that the person who received the order in December is the same person referred to throughout the proceedings as the respondent.

12. I am satisfied that the respondent has had sufficient time to contemplate her position.  If she has had legal advice, no doubt she has adopted a position consistent with what she told the Registrar in October, and on that basis, I give leave to the applicant to proceed on an undefended basis.

13. This is therefore an application for orders relating to the child W, who was born in August 2012. The application seeks a declaration under s 107 of the Child Support (Assessment) Act 1989 (Cth) that he should not be assessed in respect of the costs of the child, and a further declaration as to parentage under s 69VA of the Family Law Act (1975) (Cth).  

14. I hesitate here because the application does not seek that.  It actually seeks a declaration of “percentage,” which I presume was meant to read “parentage.”  But as the section has been identified in the application, there can be little doubt that the respondent knew exactly what it was that the applicant was seeking. 

15. The applicant also seeks orders in relation to the costs of the parentage testing procedure, and legal costs.  Whilst it may be somewhat academic in respect of the latter, the reality is that if the application is made, then the Court needs to deal with it.

16. Dealing, then, first with the parentage point, the evidence of the applicant is modestly brief.  It indicates that between approximately March 2011 and March 2013, he was in a casual relationship with the respondent.  He then says, “I am unaware if, during the time the respondent went out with other men or what any relationship may have been.”  He then says that he was not present at the child’s birth, but he confirms today in a statement from the body of the court that he continued his relationship with the respondent up until March 2013, and as a result, he formed a relationship with the child.

17. Just exactly what precipitated the parentage testing process is not clear, but as a result of discussions between the applicant and the respondent, the parentage testing process was carried out and completed on 6 August 2013 by a scientist employed by B Proprietary Limited.  That organisation seems, from the certificate dated 29 August 2013, to have followed the process that I understand they are required to follow, and the scientist reported that the exclusion of the applicant was clear from the contradictions of the laws of genetic inheritance in seven out of the 15 genetic markers.

18. It is important to note that that report was attached to the affidavit of the applicant, and, as I earlier indicated, the respondent confirmed she had received and read the document.  In addition to those facts, there is a concession by the respondent to the Registrar in what is a public record that the applicant is not the father of the child. 

19. The position of the father is slightly different from that, in that he had some difficulty getting the respondent to go through the process.  He says that there was a position for some time where she maintained that he was the father, and she went so far as to not only name him on the birth certificate in the state of Queensland, but also completed the necessary application for an assessment for child support, which was undoubtedly based upon the fact that he was the father.

20. Section 107 of the Child Support Assessment Act provides that, if the Registrar of Child Support accepts an application for an administrative assessment of a child, an application may be made to a court for a declaration that the person should not be assessed in respect of the costs of the child because the person is not a parent of that child.

21. The Act defines costs of a child to refer to child support in its general sense.  In this case, the mother, who is the respondent, seems to have conceded the point and told the Registrar that she does not want child support collected because the applicant is not the parent of the child.  The application is necessary because it puts the Registrar otherwise in an invidious position of knowing not what to do. 

22. There is sufficient evidence in this case for me to make a finding that the applicant is not the parent of the child.  I do so on the basis of his affidavit material and his oral evidence before me today.  That oral evidence particularly relates to the concession by the respondent. 

23. Section 69VA of the Family Law Act relates to declarations of parentage. It provides that, if after receiving evidence, the issue of the parentage of a child for the purposes of proceedings is relevant, the Court may also issue a declaration that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth that the applicant is not the parent of the child. Accordingly, I make both declarations under s 107 and s 69VA. In this case, it was not necessary for the applicant to seek an order for the carrying out of the parentage testing procedure, because the respondent agreed to it.

24. He having incurred the costs in circumstances where his position was that the respondent maintained right to the end that he was the father of the child, has unnecessarily had to go through the process to establish the outcome.  Under those circumstances, he ought not to have to be responsible for those costs.  This is a case where, even though the respondent may be impecunious, I see no reason why, on the basis of the undefended evidence of the applicant, the respondent should not pay all of the costs of the carrying out of the parentage testing process.  In this case, those costs are set out in his affidavit, and they can be borne by the respondent, regardless of her financial position. 

25. That finally leaves the question of the applicant’s costs.  Although the applicant has been self-represented in the proceedings, it is quite clear that the various steps have been undertaken, on his instructions, by a lawyer.  He has presented to me today a tax invoice on the letterhead of the solicitors whose name is also on the original application.  The document refers to the fact that the scale of costs used in the tax invoice is Schedule C to the Family Law Rules.  But it is quite clear from looking at how the charges have been structured that the scale has not been used.  Rather, an amount has been applied which looks to me most likely to be about $100 per hour more than the scale rate.

26. Section 117 of the Family Law Act provides that in proceedings in this jurisdiction each party shall bear their own costs, unless there is a circumstance that justifies the departure from that principle. If the Court considers there is such a justifying fact, it must consider the matters set out in s 117(2A) of the Act before it makes such an order. It is clear that, notwithstanding the concession by the respondent that the applicant was not the father of the child and the fact that she told the Registrar of Birth, Deaths and Marriages in Queensland and also the Registrar of Child Support that he was not, the applicant still had to come to Court to get a declaration to overcome the problems with child support, and other matters under laws of the Commonwealth of Australia.

27. Having regard to the concessions that the respondent made and should have made earlier, these proceedings could have been avoided.  On that basis, there is a justifiable circumstance to depart from the principle that each party pays their own costs. 

28. Section 117(2A), however, requires the Court before making such an order to contemplate a list of factors. Those factors include a number of matters, such as the financial position of each of the parties. The evidence is scant in relation to the respondent’s position, because she indicated only in the Request to attend by Electronic Communication that she was on a “low income” and supporting a child and otherwise assisting with a disabled relative.

29. The financial circumstances of the applicant are set out in the financial statement that he filed on 17 September, and in his position, he is currently earning about $1360 per week.  There is a vast difference between the two financial positions. 

30. The second consideration is whether any party is assisted by Legal Aid, and it is clear that the applicant is not.  The third factor is the conduct of the parties to the proceedings.  I take into account that the respondent has failed to file any material, including in relation to the original hearing.  The Registrar was somewhat generous in allowing her to participate when she had not filed any material.

31. The absence of material, presumably, necessitated the adjournment of the proceedings to enable her to get some legal advice.  Had she filed the material and/or obtained legal advice earlier, bearing in mind that she had had the documents for some time, the matter might have been resolved at that point in time. 

32. A fourth matter is whether or not a party to the proceedings has been wholly unsuccessful.  I cannot think of a better description of a case where the respondent has been wholly unsuccessful than this one.

33. Other matters as the Court considers relevant, such as offers in writing in relation to costs, are matters that should be considered.  In this case, there is no evidence that would support such a conclusion. 

34. The applicant has incurred legal costs to some extent unnecessarily.  Whilst costs are not a punishment but, rather, to compensate the party who has had to do what they have done for the purposes of exercising their rights, this is a case where an order for costs should be made of some nature.

35. Costs as a quantum are a discretionary issue for courts, and I would not be prepared to put the parties through a situation where they went to a taxation or an assessment, because that would simply incur further costs.  Based on the absence of the respondent today, it would seem most likely she would not participate anyway.  Having regard to the fact that the applicant needed the declarations, to some extent, it is to his benefit that the matter is sorted out through this process.  It would be unfair to make the respondent contribute all of the costs that he has incurred.  I propose to exercise my discretion and order that she pay $1000 towards his legal costs. 

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 14 January 2014.

Associate: 

Date:  22 January 2014