Nagle and Fallon

[2008] FMCAfam 437

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAGLE & FALLON [2008] FMCAfam 437

CHILD SUPPPORT – Declaration of paternity – application filed eight years out of time – no adequate explanation for delay – application for extension of time within which to file application for declaration refused.

Child Support (Assessment) Act 1989, s.107(1)
Federal Magistrates Act1999, s.43
Family Law Rules 1984, Or 31B r10(1)

OP & HM  [2002] 29 Fam LR 251

Applicant: MR NAGLE

Respondent: MS FALLON

File number: BRC 12811 of 2007

Judgment of: Jarrett FM

Hearing date: 28 February 2008

Date of last submission: 28 February 2008

Delivered at: Brisbane

Delivered on: 5 March 2008

REPRESENTATION

Solicitor for the Applicant: Mr Rosen

Solicitors for the Applicant: Rosen Lawyers

Solicitor for the Respondent: Ms Barnes

Solicitors for the Respondent: Smith & Stanton

ORDERS

1. That the application filed on 6 November 2007 be dismissed.

2. That the applicant to pay the respondent's costs of and incidental to the application fixed in the sum of one thousand, seven hundred and five dollars ($1,705.00).

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC12811 of 2007

MR NAGLE

Applicant

And

MS FALLON

Respondent

REASONS FOR JUDGMENT

(Revised from the transcript)

1. This is an application for the extension of time to bring an application for a parentage testing procedure to be carried out in aid of a claim for relief under the Child Support (Assessment) Act 1989. The amended, amended application filed on 26 February, 2008 seeks an order that pursuant to r.3.05 of the Federal Magistrates Court Rules 2001 that the filing of the application be extended up to and including 14 January, 2008.

2. In the course of argument the applicant submitted that, in fact, leave was not necessary because at the relevant time this Court and perhaps, more importantly, the Rules of this Court did not exist.  The relevant time limitation is imposed by the Rules of this Court.  Put simply, there was no time limit with which he needed to comply when commencing this application.

3. Some background is necessary.  The applicant and the respondent have a child in respect of which an assessment of child support has apparently been issued.  The evidence permits me to find, I think, that the first assessment was issued and perhaps notified to the applicant on or about 14 February, 2000.  He says in his affidavit filed on

   
   13 February, 2008

   that he may have received the relevant document from the Child Support Agency on 14 February, 2000.

4. The parties seem to accept that that was the trigger that enabled Mr Nagle to apply for an order that he was not a liable parent in respect of the child the subject of the assessment (and the particular child concerned in this application) pursuant to s.107 of the Act and to also seek paternity testing in aid of that relief.

5. It is true to say that at the time that the notice from the CSA was given to the applicant, the Rules of this Court did not exist.  They commenced operation in 2001.  The relevant rule in this particular case seems to me to be a rule which derives from the Family Law Rules1984.  It was submitted for the applicant, in answer to a direct question from me, that there was no time limit imposed by the rules of the Family Court (in which the applicant may have brought his proceedings at the relevant time) and that there was no time limit in this Court: there being no rules in force at the relevant time. 

6. But s.43(2) of the Federal Magistrates Act1999 provides, in effect, for the application of the Rules of Court made under the Family Law Rules1984 to proceedings in this Court, until such time as this Court promulgated its own rules under s.88 of the Act, and thereafter to the extent that any Rules of this Court are insufficient for any particular purpose. When the Federal Magistrates Act 1999 was passed, the Family Law Rules 1984 were extant.  So, proceedings in this Court, in so far as they concerned family law jurisdiction or child support jurisdiction, were governed by the Family Law Rules1984 until the Court promulgated its own rules.

7. There is a rule in the Family Law Rules1984 that provides much in the same terms as the Rules of this Court concerning an application such as that now before me: Or31B r10(1) Family Law Rules1984.  That rule requires that an application under subsection 107(1) of the Assessment Act must be filed within 28 days after receipt by the applicant of the notice given under subsection 98ZC(2) of that Act or, within such further time as the Court allows.

8. I am satisfied that the applicant was bound to bring this application now before me, within 28 days of receipt of the relevant document by him, which seems to be accepted on the material as 14 February, 2000.  Thus an order that extends the time within which to file this application is necessary. 

9. It seems to me to be unnecessary to determine whether leave is necessary under r.3.05 of the Federal Magistrates Courts Rules 2001 or the coincident provision in the 1984 rules which, at least in part, still apply in this Court.  Whatever the case might be, an extension of time is necessary and in my view the factors to be considered are likely to be the same whichever rule one considers.

10. The decision to extend time is, of course, discretionary and there are no fetters upon the discretion other than to say that it ought to be exercised judicially.  The fundamental issue is whether an extension of time will enable the Court to do justice between the parties: OP & HM [2002] 29 Fam LR 251 in which the Family Court set out the principles that one might apply in determining an application for an extension of time. The applicant needs to demonstrate that:

    a)there are adequate reasons that explain his delay;

    b)there is a substantial issue to be raised on the hearing of the application; and

    c)no hardship or injustice will be caused to the respondent mother which could not be compensated by orders as to costs or otherwise. 

11. I will deal with the last two factors first because they are the easiest. 

12. The mother says that she resists the order for paternity testing because she is protecting the child who is, at the moment, eight years old, from psychological harm.  The nature and extent of that harm is not entirely spelled out nor is there any medical evidence that might support her assertion but, clearly enough, she is concerned with the potential effect on J if he was to discover that the applicant is not his father.  Why that might be so is curious because, on the evidence, although J knows that the applicant is his father, he seems to have very little, if any relationship with him.

13. No other matters were pointed to by the mother which suggested that she would suffer hardship or injustice by reason of extending the time in which the father might make this application and, indeed, if her case is to be accepted, namely that there is no doubt that the applicant is the father, then it is difficult to conceive of circumstances in which it could be said that hardship or injustice would be caused to her by extending the time and then perhaps ordering the testing.

14. The second issue is the question of whether there is a substantial issue to be raised on the hearing of the application. The application seeks an order for parentage testing and ultimately a declaration that the applicant is not liable to pay child support. It is the application for the declaration that needs to be considered under this heading, not the application for paternity testing for there is no time limit on bringing an application for paternity testing, rather a time limit on bringing an application for relief under s.107 of the Act.

15. There is really no argument that the issue to be determined in the s.107 proceedings, that is whether the applicant has a liability for child support in respect of this child, is a substantial issue. As part of the determination of that issue, the issue of paternity will arise. That too is a substantial issue, on its face.

16. The remaining factor to be considered however, is whether there are adequate reasons which explain the delay in approaching the Court for relief.  Mr Nagle deposes that he may have received the relevant child support assessment for the first time in February, 2000.

17. He says that soon after 14 February, 2000 he wrote to the Regional Child Support Registrar and told the Registrar that he had grave doubts as to whether he was the child's father.  He asked the Registrar to withhold payments to the mother until it was confirmed that he was the biological father.  Thus, on the evidence, from some time soon after

    
    14 February, 2000

    the applicant began agitating his doubts about him being the child's father and sought, in one form or another it seems, some confirmation that he was the biological father. 

18. In 2001, he engaged some lawyers to act on his behalf in relation to certain matters relating to the breakdown of his marriage to the respondent.  It seems that those instructions were given some time early in 2001 because the correspondence attached to his affidavit commences in February, 2001.  The apparent inactivity between early February, 2000 and February, 2001 is not explained.

19. The letter of 12 February, 2001 from the applicant's solicitor to the mother again raised doubts about J's parentage and sought for the first time in express terms, DNA testing.  Some lawyers were engaged by the mother and they responded on 26 February, 2001 indicating that the mother was not prepared to undergo DNA testing and that she did not agree with the assertion that the applicant was not J's father.

20. Soon after, in February, 2001 a letter was sent by a solicitor on behalf of the applicant to the Child Support Agency informing them that he had gone to New Guinea for employment and that employment had commenced in November, 2000.  Further correspondence ensued in 2001 between the applicant's solicitor and the respondent's solicitor, again, the applicant asserting doubts about parentage and seeking parentage testing and the respondent replying that she would not participate, unless specific reasons for the applicant’s doubts about J’s paternity and the necessity for testing were provided.  The correspondence seems to have ended with the respondent's response on 14 May, 2001.

21. The applicant next took up the cause on 8 November, 2001 by writing directly to the respondent.  Again, he raised the issue of DNA testing with her in his correspondence.  The respondent replied by a letter she wrote on 24 January, 2002.  She did not address the paternity issue, but made a proposal for parenting and property issues.  The applicant responded on 6 March, 2002.  His concern in that letter was child support and the respondent’s intentions about that matter.

22. There seems to have been no further correspondence until the respondent’s solicitors wrote to the applicant on 8 November, 2004.  Their letter refers to a letter from the applicant of the “4^th instant”.  That letter is not in evidence.  Again, the mother refused to agree to DNA testing.  There was no explanation in the material from the applicant as to what occurred between March, 2002 and November, 2004, although it seems that he may have been working in Papua New Guinea until September, 2004. 

23. Thereafter, further correspondence ensued with the Child Support Agency but that is not particularly significant except that the applicant points out that the Child Support Agency did not tell him that there was a time limit on him bringing an application for a declaration as to paternity.  He says that:

    I then engaged Paul Williams Lawyers to act on my behalf.

    He does not say when he engaged them, what he engaged them for and what they did for him. He swears that in 2007 he spoke to some solicitors at Wynnum and then some different solicitors at Wynnum. He says that none of them told him that he needed or could seek a declaration pursuant to s.107 of the Child Support Assessment Act in relation to the paternity of J or that in order to bring an application, it needed to be brought within 28 days of the original notice and that if he wished to proceed out of time he would need leave to do so.

24. There is no explanation as to what he did between December, 2004, when he seemingly last corresponded with the Child Support Agency, and 2007 when he spoke to the solicitors at Wynnum.  At best the applicant says he did not know that there was a time limit and no-one told him of it.  Of course people are presumed to know the law and so it seems to me that the fact that his solicitors did not tell him of the time limit is really neither here nor there.  For that to be significant it would be necessary to know, it seems to me, significantly more about the terms of the instructions given by him to the lawyers and the nature and extent of the advices received by him from them.  That would necessarily mean, of course, that he might have to waive the client-lawyer privilege that might otherwise apply to those communications, but in the absence of that information, it is difficult to see how his ignorance of the time limit is of any relevance.

25. Since the first notice from the Child Support Agency in 2000 the applicant has asserted a dispute about J’s parentage.  He has long been aware that DNA testing could be carried out and he has asked the respondent to participate.  She has steadfastly refused from his first request.  Despite that, the applicant seems to have done nothing but engage in sporadic correspondence.  There are large gaps of time in which nothing seems to have occurred and for which there is no explanation.

26. I am not satisfied that there are adequate reasons that explain the delay, of now over eight years, in making a properly constituted application for relief pursuant to s.107(1) of the Act.

27. The application for an extension of time will be dismissed.

28. I think it is appropriate that there be an order for costs.  The application has been wholly unsuccessful. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Associate:  S. Haysom

Date:  6 May 2008