N & M
[2005] FMCAfam 484
•17 October 2005
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 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 procedure. On 29 July 2005 a procedure was carried out by Silbase Scientific Services.
The evidence
At the hearing both parties were represented. Neither party gave evidence but relied on their respective affidavits.
The parties met at a singles night in Chatswood in around June/July 1998, at which time the applicant was married and thereafter commenced a sexual relationship which ended in or around February 1999.
During her relationship with the respondent the applicant was not involved in a sexual relationship with another man. The applicant deposes that prior to her involvement with the respondent she had not had a sexual relationship with another man since 1995.
The applicant did not believe that she could conceive a child and therefore during her sexual relationship used no form of contraception. On the respondent’s evidence he used a condom only on the first occasion they had intercourse.
The applicant married on 14 October 1993 in Sydney. The applicant gave evidence that her marriage came to an end in 1995 when her husband left Australia and returned to Peru. Since separation the applicant had not had any contact with her husband. A decree nisi was pronounced in the Family Court of Australia on 12 January 2000. It was submitted by the respondent that the applicant’s evidence as to the details of the date of separation and divorce from her husband are somewhat uncertain. This is not denied by the applicant. She claimed that in Peru separation and divorce are treated as the same which may explain the confusion. I note that at paragraph 24 of her affidavit filed 14 January 2005 the applicant deposes that she divorced her husband sometime in 1999, at which time N was conceived.
After the applicant discovered that she was pregnant she told the respondent who was not supportive. Following the birth of N the applicant attempted contact with the respondent but was unsuccessful.
The legal framework
It is not in dispute that the applicant’s application is out of time. Under Rule 25A.04 of the Federal Magistrates Court Rules 2001 (“the Rules”), a person must file an application or appeal under subsection 106(1), 106A(1), 107(1) or 107(1) or s.132 of the Act within 28 days of receiving a notice given under s.34 by the Registrar of the Child Support Agency (“the Agency”). However, in the interests of justice, the Court may exercise its discretion and dispense with its Rules. Rule 1.06 provides:
(1)The Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules at any time.
(2)If, in a proceeding, the Court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the Court prevails in that proceeding.
The approach to be taken in applications of this kind was set out by the Full Family Court in OP & HM (2002) FamCA 454, where the Full Court said at [19]:
The principles to be applied in determining an application for an extension of time are fairly well settled. Whilst there is a broad discretion, the fundamental issue is whether an extension of time will enable the court to do justice between the parties. This is normally shown by the applicant demonstrating that there are adequate reasons which explain the delay, that there is a substantial issue to be raised on the hearing of the application, and that no hardship or injustice will be caused to the respondent which cannot be compensated by orders as to costs or otherwise (see McMahon and McMahon (1976) FLC 90-038; 1 Fam LR 11.260 at FLC 75,144; Fam LR 11,261, and Tormsen v Tormsen (1993) FLC 92-392; 18 Fam LR 232 at FLC 80,017; Fam LR 234).
In V & V [2002] FMCAfam 408, Bryant CFM (as she then was) stated at [8]:
In considering whether to extend the time in other matters under the Family Law Act and other legislation [presumably child support legislation] there are generally three basic principles to which a court would have regard. They are first the reasons for the delay; secondly, whether the application itself has any merit this is where a prima facie case has been made out, whether there would be any prejudice to the respondent or whether there would be any hardship to the applicant if the time were or were not extended. In addition the Court would normally consider any other relevant matters. (emphasis added)
Reasons for delay
The applicant submitted that following the birth of N she was not aware of her right to child support. It was not until March 2001 that she became aware she could apply for child support and on 6 March 2001 the applicant applied for assessment. In response to her application the Agency issued an assessment of child support. However, in a letter dated 9 May 2001 the Agency advised the parties that the assessment of child support had been revoked in accordance with the applicant’s request. The applicant denies that she withdrew her application for child support and said that it was an error made by the Agency.
The applicant submitted that in 2001 she was not aware of how to obtain specialist child support legal advice because of her limited grasp of the English language. In any event, the applicant wrote to the Agency (via e-mail received on 21 June 2001) stating that she was objecting to its decision and stating that the respondent was the father of the child.
On 9 July 2001 the Agency wrote to the applicant in response to her letter of 21 June 2001. The letter indicated that the Agency could not treat her letter as an objection because her objection had not been lodged within 28 days after service of the notice of decision. Following receipt of the Agency’s letter the applicant lodged an objection with respect to the decision of 9 May 2001. In a letter dated 7 September 2001 the applicant was advised by the Agency that her objection had been disallowed. At that time the applicant was in Peru and was not able to obtain legal advice. I note that the applicant was unable to recall the date she actually received that notice.
The applicant was in Peru because in March 2000 she developed a painful tendonitis condition affecting her arms. She found it difficult to cope and care for N without any financial and family support in Australia and returned to Peru where her family could assist her during her period of illness. The applicant and N returned to Australia in July 2004.
In September 2004, the applicant reapplied for an assessment of child support and on 15 September 2004 the Agency refused her application due to a lack of evidence as to paternity. A further objection was lodged by the applicant on 18 October 2004 and it too was refused for the same reasons.
Finally, the applicant submitted that her delay in bringing her application was caused by the respondent’s lack of cooperation in taking steps to resolve the question of paternity. In particular, the applicant referred the Court to her letter of 9 May 2001 addressed to the respondent which enclosed a child support statutory declaration. The applicant submitted that it was her understanding that if the respondent chose not to sign the declaration then the Agency would commence Court proceedings on her behalf to determine the question of paternity. In other words, she did not understand that the onus fell on her to commence Court proceedings to decide the question of paternity.
The merits
As far as merit is concerned, it is conceded between the parties that the respondent is the biological father of the child.
Prejudice caused to the respondent
In relation to any prejudice likely to be caused to the respondent the applicant submitted that the respondent would not suffer any prejudice if the extension of time were granted because the applicant was on notice as early as March 2001 that he may be the father of N and thus have a financial obligation to support her.
The applicant submitted that having regard to the objects of the Act, it would be unfair that the respondent’s obligation to provide support for N start only from September 2004 and not from March 2001 and that if the applicant’s application were refused it would impose a heavy financial burden on the applicant. The applicant submitted that the Court should have regard to the respondent’s conduct and in particular his refusal to sign the statutory declaration in May 2001 and his refusal to participate in a paternity test or to take any other steps to resolve the issues. The applicant argued that if the Court refuses to grant the extension of time the respondent will have essentially derived a financial gain by delaying the determination of paternity.
Public policy reasons
I must bear in mind the interests of public policy. In W & J&S [1998] FamCA 44, the Full Family Court, comprising Fogarty, Baker and Kay JJ, a case which involved issues of public interest and the interest of the child and the community. At para [2.9] Fogarty J said:
it would have been most unlikely that the Local Court would have refused that application. It was essential in the interests not merely of the parties but also of the child and the community that the issue of paternity be determined.
At page 12 in the same Judgment Baker J said:
This matter could have been easily remedied by the mother seeking the requisite leave, and, in the circumstances given the interests of the child in the outcome of this litigation, it would almost certainly have been granted by the Court.
In B v J (1996) FLC 92-716 at (83,618); 21 Fam LR 186 at [195] Fogarty J made the following statement in relation to public interest:
The financial support of children is a matter of great public interest. The community as a whole would be adversely affected if a person were permitted to waive a “right” to seek support from a child’s parent. The enactment itself of the Assessment Act in 1989 and the amendments made to the child support provisions of the Family Law Act in 1987 emphasise the significance of the primary responsibility of parents for the support of their children and were specifically enacted to deal with what were regarded as deficiencies in the previous position. Longstanding authority in Australia and overseas has made it clear that such is the nature of the responsibility in this area that parents may not contract out of that responsibility. In addition, it needs to be emphasised that not only has the community a substantial interest in this area but the right to child support is the right of the child which may not be waived or contracted out by that child’s parents, both of whom have the responsibility for that child.
This is not a case where the respondent has waived or contracted out of his obligation to provide support for his child. The very nature of the child support legislation in Australia is to provide ongoing periodic child support for the child. For the respondent to be placed in a situation where he may face a four year retrospective assessment does in my view raise a serious issue and requires careful consideration of the relevant circumstances.
I have regard to the child’s interests and note the objects of the Act in that both parents have an ongoing responsibility to provide for the financial support of the child. I am mindful of the submissions of the applicant in that she has not so far had any financial support from the respondent for N. However, for the three years preceding her application she has had the support of her family in Peru.
Consideration
I am satisfied that the respondent was aware of the pregnancy in early 1999. I accept the respondent’s evidence that the applicant told him that she was married at the time of their relationship and I am satisfied that the respondent was entitled to act on the presumption that the husband of the applicant may be the father of N. As noted previously, the applicant’s evidence in relation to her marriage and the precise dates of separation and divorce are somewhat confusing. However, s.69P(1) of the Family Law Act provides that if a child is born to a woman while she is married, the child is presumed to be a child of the woman and her husband. At the time of N’s birth the applicant was still married to her husband. Subsection (3) of s.69P says that if a child is born to a woman within 44 weeks after the end of the cohabitation but after the dissolution of marriage the child is presumed to be a child of the woman and the husband. Section 69U of the Act provides the presumption is rebuttable "on the balance of probabilities". The parties had what appeared to be a casual sexual relationship over a course of some months at which time the applicant remained married. They never cohabited. There is no evidence to show that the respondent had any reason to believe the applicant may not also have had intercourse with her husband. Accordingly, I accept that it was reasonable for the respondent to believe that it was possible for the applicant’s husband to be the father of N.
In my view the respondent was entitled at the time he received the Agency’s letter to assume that he was not obliged to pay child support and moreover when nothing further happened for a period of three years he could reasonably assume that the applicant was either not pursuing him for support or that his obligation did not exist.
I do not accept the applicant’s submission that an extension of time would not create prejudice to the respondent. The leave application involves a three year period. Clearly that could potentially create significant arrears for the respondent. To grant an extension in circumstances where there were contributing factors for which the respondent was not responsible for would in my view be manifestly unfair. Although it may be the case that the applicant did not withdraw her application as the Agency’s notice suggests, it was not unreasonable for the respondent to rely on the Agency’s letter.
I accept that the applicant faced difficulties in gaining access to appropriate legal advice and that her poor health was a compelling reason for her to return to Peru. Nevertheless it is apparent that she received substantial family support over that period and that there was no prejudice to N as a result of child support not being paid for that period. In all the circumstances I am therefore of the opinion it would be unjust for the extension of time to be granted.
There is no doubt that the application made in September 2004 and the subsequent steps the applicant took thereafter were all within time. The Act says that child support is to start from the date the application for assessment is made namely there will be no prejudice to the applicant in terms of the length of time these proceedings have taken and the respondent will need to make up a significant period of arrears
Accordingly, the applicant’s application for leave to file out of time is dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Pascoe CFM
Legal Associate: Peter Smith
Date: 17 October 2005
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