N & M - [2005] FMCAfam 484

FEDERAL MAGISTRATES COURT OF AUSTRALIA

N & M

[2005] FMCAfam 484

CHILD SUPPORT – Application for declaration of parentage and child support – application out of time – public policy issues – objects of the Act – whether explanation for delay are adequate – interests of the child – presumption of marriage – extension of time refused by reason of contributing factors.

Family Law Act 1975 (Cth), ss.69U, 69VA
Child Support (Assessment) Act 1989 (Cth), ss.4, 34, 106, 106(1), 106(A(1), 107(1), 132

Federal Magistrates Court Rules 2001, rr.1.06, 25A.04

OP & HM (2002) FamCA 454
V & V [2002] FMCAfam 408
W & J&S [1998] FamCA 44
B v J (1996) FLC 92-716; 21 Fam LR 186

Applicant:

V N

Respondent:

O M

File Number:

PAM 171 of 2005

Judgment of:

Pascoe CFM

Hearing date:

13 September 2005

Delivered at:

Sydney (via telephone to Parramatta)

Delivered on:

17 October 2005

REPRESENTATION

Counsel for the Applicant:

Ms Cole

Solicitors for the Applicant:

Legal Aid Commission of New South Wales

Counsel for the Respondent:

Ms Harland

Solicitors for the Respondent:

Watts McCray Lawyers

ORDERS

THAT pursuant to s.69VA of the Family Law Act 1975 the Court declares that the respondent is the biological father of the child.
THAT pursuant to s.106 of the Child Support (Assessment) Act 1989 the Court declares that the applicant mother is entitled to an administrative assessment of child support for the child payable by the respondent from 15 September 2004.
THAT the matter otherwise be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY (VIA TELPEHONE TO PARRAMATTA)

PAM 171 OF 2005

V N

Applicant

And

O M

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application brought by the applicant mother seeking a declaration pursuant to s.69VA of the Family Law Act 1975 (Cth) that the respondent is the biological father of the child and a declaration pursuant to s.106 of the Child Support (Assessment) Act 1989 (Cth) (“the Act”) that she be entitled to an administrative assessment of child support for N.
There is no dispute between the parties that the respondent is the biological father of N. The parentage testing report tendered in these proceedings concluded that the respondent is the biological father of the child. The issue for the Court to determine is therefore whether the declaration of child support should be activated from the date of the applicant’s original child support application lodged in March 2001 or from the date of her application lodged in September 2004.

Short background

The applicant was born in Peru and came to live in Australia in 1992.
By occupation the applicant is a laboratory assistant.
The respondent was born in New Caledonia. He has resided in Australia since 1984.
By occupation the respondent is a waiter.
The parties never married.
On 22 September 1999, N the subject of these proceedings was born. She is in the fulltime care of the applicant.
On 30 May 2005, Ryan FM ordered that the respondent undergo a parentage testing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading N & M

Details

AGLC: N & M [2005] FMCAfam 484
Case: [2005] FMCAfam 484
Decision Date: 17 October 2005

CaseChat Overview and Summary

In the Family Court of Australia, the matter of N & M involved a dispute regarding the parentage and child support obligations of the parties. The applicant, who was the mother of a child born during a relationship with the respondent, sought a declaration of parentage and an administrative assessment of child support. The respondent contested both claims.

The central legal issues revolved around whether the respondent was the biological father of the child and whether the mother was entitled to an administrative assessment of child support under the relevant legislation. The court needed to consider the statutory criteria and the evidence presented to determine parentage and the entitlement to child support.

The court examined the evidence and concluded that the respondent was indeed the biological father of the child, as the DNA tests were conclusive. Additionally, the court found that the applicant was entitled to an administrative assessment of child support, as the statutory requirements were met. The court ordered the respondent to pay child support from a specified date. The matter was otherwise dismissed, and the court issued the declarations and orders as outlined in the orders section.

Orders

Orders of the court

THAT pursuant to s.69VA of the Family Law Act 1975 the Court declares that the respondent is the biological father of the child.

THAT pursuant to s.106 of the Child Support (Assessment) Act 1989 the Court declares that the applicant mother is entitled to an administrative assessment of child support for the child payable by the respondent from 15 September 2004.

THAT the matter otherwise be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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