Nandi and Listberg

[2011] FamCA 861

FAMILY COURT OF AUSTRALIA

NANDI & LISTBERG [2011] FamCA 861

FAMILY COURT – CHILDREN – Jurisdiction of Family Court – Respondent’s application for summary dismissal of the mother’s application for lack of jurisdiction– Whether this Court has the jurisdiction to make the orders the mother seeks –Where the mother seeks a declaration that the respondent is the father of the child – Where the mother and child are Country D citizens and habitually reside in Country D and the respondent is an Australian citizen and habitually resides in this country – Where the mother seeks a mandatory injunction against the respondent to do all acts and things necessary to amend or otherwise advise and record particulars of the child’s parentage records or registration in Country D – Where the mother seeks an order that  the respondent pay maintenance for the child – Court is not satisfied that this Court does not have jurisdiction.

Child Support (Assessment) Act 1989 s 24, s 25, s 29A, s 29B, s 106A, s 99, s 100
Child Support (Registration and Collection) Regulations 1988 (Cth)
Evidence Act 1995 (Cth) s 174, s 175, s 79
Family Law Act 1975 (Cth) s 69VA, s 66G, s 111CS, s 42, s 111CA, s 68B, s 66G, s 31, s 111A, s 69E, s 69ZE, s 69U, s 66E
Family Law Amendment (Child Protection Convention) Act 2001

Bigg v Suzi (1998) FLC 92-799
Harris v Harris [1979] 2 NSWLR 252
Robinson v Field (1981) 7 Fam LR 866

APPLICANT: Ms Nandi

RESPONDENT: Mr Listberg

FILE NUMBER: BRC 10934 of 2010

DATE DELIVERED: 4 November 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 12 September 2011

REPRESENTATION

FOR THE APPLICANT: Ms Galvin, Solicitor
Journey Family Lawyers

FOR THE RESPONDENT: Mr Listberg in Person

Orders

1. The respondent’s application in a case for summary dismissal of the applicant’s proceedings is dismissed.

2. The proceedings are adjourned to a Registrar of the Brisbane Registry, Family Court of Australia for case management, preparatory for trial.  

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10934 of 2010

Ms Nandi

Applicant

And

Mr Listberg

Respondent

REASONS FOR JUDGMENT

Introduction  

1. E was born in Country D in 1996.  She is now 15 years of age.  She lives in Country D with her mother, Ms Nandi, who is the applicant in proceedings that were commenced in the Federal Magistrates Court of Australia here in Brisbane and transferred to this Court on 9 May 2011.  The proceedings were listed for mention before me in the Duty List on 12 September 2011.

2. By an Amended Amended Initiating Application filed in this court on 8 September 2011, but apparently incorrectly date stamped in the Brisbane Registry as filed on 14 August 2011, the mother seeks final orders against the respondent, Mr Listberg.  Ms. Nandi and Mr. Listberg were never lawfully married but Ms. Nandi alleges that Mr. Listberg is the father of the child. Mr. Listberg does not admit that he is.

3. The mother seeks a declaration that the respondent is the father of the said child. That declaration is sought pursuant to s 69VA of the Family Law Act (“the FLA”). She also seeks an order that the father join with her in doing all acts and things necessary to amend or otherwise advise and record particulars of the child’s parentage records or registration in Country D, and she seeks an order, pursuant to s 66G of the FLA, that the respondent pay maintenance for the said child in the sum of $600 per month. 

4. The respondent appeared without legal representation when the matter was mentioned on 12 September 2011.  He indicated that he opposed the application and sought that it be dismissed. 

5. Although he did not articulate it as such, I effectively treated the respondent’s application as one for summary dismissal of the applicant’s application for final orders. There is no doubt the Court has the power to summarily dismiss proceedings. The power to do so is to be sparingly used.[1] If the respondent shows that it is clear that the applicant lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious then he must succeed in having the proceedings summarily dismissed.

   [1](1996) 136 ALR 251; 70 ALJR 541 approved and applied by the Full Court of the Family Court in Bigg v Suzi (1998) FLC 92-799. See also the discussion in Bigg v Suzi about the Court’s inherent power to dismiss an application which cannot succeed.

6. The respondent submitted that it should be dismissed immediately because this Court has no jurisdiction to make the orders that are sought by the applicant.  The respondent’s principal submission was that the Court has no jurisdiction to entertain the applicant mother’s application because the mother is a Country D citizen living in Country D and her child is also Country D and living in Country D. He submitted that under Country D law all parental responsibility and obligation for ex nuptial children lies solely with the mother. He submitted that Country D law applies in these circumstances.

7. In the course of developing his submission, the respondent referred to s 111CS(1), (2) and (6) as well as s 42(2) of the FLA and he submitted that they applied in such a way as to support his principal submission.  His argument, that he sought to support by reference to those sections was, as I understood it, that all aspects of parental responsibility, including responsibility for the financial support of a child born in Country D to a Country D mother who continues to live with that child in Country D are to be determined in accordance with the law of Country D and that this Court has no jurisdiction in respect thereof. 

8. With respect to the respondent, I do not accept that submission and I do not accept that this Court does not have the jurisdiction to make the orders that the mother seeks. 

Statutory Provisions referred to by the Respondent

1. As I just noted, the respondent referred to s 111CS in support of his submission. That section is a part of Part XIIIAA of the FLA, which is headed “International Conventions, International Agreements and International Enforcement”. Within Part XIIIAA it falls within Division 4, which is headed “International Protection of Children” and within that Division it falls under Subdivision D, which is headed “Applicable Law”.

2. S 111CS is headed “Applicable law concerning parental responsibility”. It says:

   (1)The principles set out in this section apply despite anything in this Act.

   (2)The circumstances in which parental responsibility for a child is attributed to a person, or extinguished, by operation of law (without the intervention of a court or appropriate authority) are governed by the law that applies in the country of the child's habitual residence.

   (3)The circumstances in which parental responsibility for a child is attributed to a person, or extinguished, by an agreement or a unilateral act (without the intervention of a court or appropriate authority) are governed by the law that applies in the country of the child's habitual residence when the agreement or act takes effect.

   (4)The exercise of parental responsibility for a child is governed by the law applying in the country of the child's habitual residence.

   (5)      If a child's country of habitual residence changes to another country:

   (a)parental responsibility for the child that exists under the law applying in the country in which the child was habitually resident continues to exist; and

   (b)the circumstances in which parental responsibility for the child is attributed by operation of law to a person who does not already have such responsibility are governed by the law applying in the country of the new habitual residence; and

   (c)the exercise of parental responsibility for the child is governed by the law applying in the country of the new habitual residence.

   (6)      Despite subsections (2) to (5), if:

   (a)the law that applies because of this section is the law of a non-Convention country; and

   (b)the choice of law rules of that non-Convention country designate that the law of another non-Convention country applies; and

   (c)      the other non-Convention country would apply its own law;

   the law of that other non-Convention country applies instead.

   (7)The parental responsibility referred to in subsection (2), (3), (4) or (5) may be ended, or the conditions of its exercise changed, by a measure taken in accordance with section 111CD or 111CK.

   (8)A court need not apply a principle set out in subsection (2), (3), (4) or (5) if, on the application of an interested person, the court considers that doing so would be manifestly contrary to public policy having regard to the best interests of the child concerned.

3. As I understand the respondent’s submission, he argues that s 111CS(2) applies in the circumstances of this case and that it is to be read as requiring this Court to find that all matters pertaining to the parenting of the child, the child, including as to maintenance obligations, are to be determined according to Country D law as Country D is her country of habitual residence. He refers to s 111CS(1) as support for the argument that the proper application of the provisions of s 111CS(2) overrides all other provisions of the FLA.

4. All of Division 4 of Part XIIIAA of the FLA was included in the FLA by the enactment of the Family Law Amendment (Child Protection Convention) Act 2001.  The general outline in the Explanatory Memorandum circulated by the then Attorney-General, the Honourable Daryl Williams AM QC MP, says as follows:

   The Family Law Amendment (Child Protection Convention) Bill 2001 amends the Family Law Act 1975 to enable Australia to ratify the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children 1996.

   The Convention establishes conflicts of law rules to be applied in parental responsibility litigation which has an international aspect. These rules govern the questions whether a court has jurisdiction to hear an international parental responsibility dispute, which country's law is to be applied in determining international parental responsibility disputes, what conditions must be satisfied to ensure international recognition and enforcement of parenting orders and what obligations courts in Australia overseas have to co-operate in the protection of children.

5. The term “parental responsibility” as used in all of Division 4 of Part XIIIAA of the FLA is defined in s 111CA(1) of the FLA. There, it says the term has the same meaning as in the Child Protection Convention. In s 111CA(1) “Child Protection Convention” is also defined. It is the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children signed at The Hague on 19 October 1996, a copy of the English text of which is set out in Schedule 1. That reference to Schedule 1 is a reference to Schedule 1 of the FLA.

6. In the Child Protection Convention the term “parental responsibility” is defined as follows:

   For the purposes of this Convention, the term 'parental responsibility' includes parental authority, or any analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of the child.

7. The Preamble to the Convention says:

   The States signatory to the present Convention,
   Considering the need to improve the protection of children in international situations,
   Wishing to avoid conflicts between their legal systems in respect of jurisdiction, applicable law, recognition and enforcement of measures for the protection of children,
   Recalling the importance of international co-operation for the protection of children,
   Confirming that the best interests of the child are to be a primary consideration,
   Noting that the Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of minors is in need of revision,
   Desiring to establish common provisions to this effect, taking into account the United Nations Convention on the Rights of the Child of 20 November 1989,

8. Article 1 of the Convention lists the objects of the Convention as:

   a   to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child;

   b   to determine which law is to be applied by such authorities in exercising their jurisdiction;

   c   to determine the law applicable to parental responsibility;

   d   to provide for the recognition and enforcement of such measures of protection in all Contracting States;

   e   to establish such co-operation between the authorities of the Contracting States as may be necessary in order to achieve the purposes of this Convention.

9. Article 3 of the Convention says:

   The measures referred to in Article 1 may deal in particular with--

   a the attribution, exercise, termination or restriction of parental responsibility, as well as its delegation;

   b  rights of custody, including rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence, as well as rights of access including the right to take a child for a limited period of time to a place other than the child's habitual residence;

   c   guardianship, curatorship and analogous institutions;

   d   the designation and functions of any person or body having charge of the child's person or property, representing or assisting the child;

   e   the placement of the child in a foster family or in institutional care, or the provision of care by kafala or an analogous institution;

   f    the supervision by a public authority of the care of a child by any person having charge of the child;

   g         the administration, conservation or disposal of the child's property.

10. Article 4 of the Convention says:

    The Convention does not apply to--

    a   the establishment or contesting of a parent-child relationship;

    b   decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption;

    c   the name and forenames of the child;

    d   emancipation;

    e   maintenance obligations;

    f    trusts or succession;

    g   social security;

    h   public measures of a general nature in matters of education or health;

    i   measures taken as a result of penal offences committed by children;

    j   decisions on the right of asylum and on immigration.

11. Clauses 85 to 91 of the Explanatory memorandum all refer to the subsections of s 111CS. Each of those clauses commences by saying that the subject subsection of s 111CS “implements article [relevant number] of the Child Protection Convention”.

12. It is clear, therefore, from the words of the section, given meaning by reference to the Explanatory Memorandum and the words of the Child Protection Convention itself,  that the provisions of s 111CS that the respondent refers to, particularly the references to ‘parental responsibility’, do not determine, restrict or interfere with this Court’s jurisdiction in respect of determining the parentage of a subject child or in respect of determining the maintenance obligations of parents once parentage of a subject child is determined. They expressly implement the terms of the Child Protection Convention and they deal with the law to be applied in respect of parental authority in relation to the person or the property of a child in parenting cases where conflicts of laws questions arise in respect of that parental authority. They do not apply so as to require child maintenance obligations to be determined according to the law of the country of the habitual residence of the child where this Court would otherwise have jurisdiction to determine them pursuant to the provisions of the FLA.

13. What then of s 42(2) of the FLA that the respondent also refers to in support of his argument that this Court has no jurisdiction to determine parentage or maintenance obligations in respect of this subject child?

14. Section 42 is headed “Law to be Applied”. It provides:

    s 42(1) [Exercise of jurisdiction] The jurisdiction conferred on a court, or with which a court is invested, by this Act shall be exercised in accordance with this Act and the applicable Rules of Court.

    S 42(2) [Rules of private international law] Where it would be in accordance with the common law rules of private international law to apply the laws of any country or place (including a State or Territory), the court shall, subject to the provisions of the Marriage Act 1961, apply the laws of that country or place.

15. Of course, as the note to the section makes clear, in the appropriate parenting orders case, Subdivision D of Division 4 of Part XIIIAA, including s 111CS, may affect the law to be applied, notwithstanding s 42.

16. The applicant seeks three different types of orders in her amended amended application. She seeks a declaration that the respondent is the father of the subject child. She seeks that that declaration pursuant to s 69VA of the FLA. That section gives the Court power to make such an order once having decided, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings.

17. The applicant also seeks an order that the respondent does, jointly with her, all acts and things and signs all documents as necessary to amend or otherwise advise and record the particulars of the subject child’s parentage in Country D. That is a mandatory injunction sought against the respondent in personam (in person). The Court’s power to grant injunctions in relation to a child as it considers appropriate for the welfare of the child is found in s 68B of the FLA.

18. Finally, the applicant seeks an order that the respondent pays her money for the maintenance of the child. That order is sought pursuant to s 66G of the FLA.

19. Original jurisdiction is conferred on the Court by way of s 31 of the FLA. Relevantly, in this matter, jurisdiction is conferred on the Court with respect to “matters … with respect to which proceedings may be instituted in the Family Court under this Act or any other Act”[2]. The jurisdiction may be exercised in relation to persons or things outside Australia and the Territories, subject to any restrictions and conditions as are contained in s 111AA, the regulations and the Family Law Rules.[3]

    [2]S 31(1) (d)

    [3]S 31(2) – s 111AA relates to New Zealand only

20. Proceedings may be instituted in the Court under the FLA in relation to a child only if:

    (a)the child is present in Australia on the relevant day – (the relevant day being the day on which the application is filed); or

    (b)the is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or

    (c)a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or

    (d)a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia on the relevant day; or

    (e)it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.[4]

    [4]S  69E (1) and (2)

21. In this case, there is no dispute that the respondent, who the applicant mother alleges is the father of the subject child, being a party to the proceedings, is ordinarily resident in Australia and was present in Australia on the date the application was filed.

1. There was no evidence put before the Court on the hearing of this summary dismissal application that the parties were lawfully married at the time of the conception of the child. That does not matter as the Court’s jurisdiction to make maintenance orders in respect of children extends to ex-nuptial children.[5]

   [5]S 69ZE and the Commonwealth Powers(Family Law-Children)Act 1990 (Qld)

2. Accordingly, the respondent’s submission that the Court lacks the jurisdiction to hear and determine the matter is misconceived and must fail. It clearly has the jurisdiction to hear and determine the application.

3. As the respondent does not admit paternity of the subject child, her parentage is an issue for the purposes of the proceedings. Section 69VA gives power to the Court to decide that issue after hearing evidence, whether a declaration of parentage is sought or not. Section 42(1) requires jurisdiction to be exercised in accordance with the FLA. Where there is any room left after application of the provisions of the FLA, s 42(2) requires the laws of Country D to be applied where necessary where that would be in accordance with the common law rules of private international law. Whilst it seems that the status of the ‘legitimacy’ of a child, where that mattered, was at common law likely to be determined according to the law of the mother’s domicile[6], in this case, there is no issue that is dependent upon the child’s ‘legitimacy’ as the jurisdiction to make the orders that are sought is not dependent upon ‘legitimacy’. Accordingly, that jurisdiction is to be exercised in accordance with the provisions of the FLA.

   [6]See Nygh’s Conflict of Laws in Australia, Eighth Edition, Lexis Nexus, 2010 pp 617 – 619 paragraphs [29.7] – [29.13]

4. The provisions of Subdivision D of Part VII Division 12 of the FLA provide for rebuttable presumptions as to parentage. These presumptions are of an “evidentiary character” and apply whenever the Court is exercising jurisdiction under the FLA and has to determine parentage in the exercise of that jurisdiction [7]. Pursuant to s 69U of the FLA the parentage presumptions that arise under Subdivision D are rebuttable by proof on a balance of probabilities. The application of the presumptions and the question of whether or not they are rebutted are matters to be determined on evidence at a hearing. I do not understand the father to have based his summary dismissal application on submissions that the mother’s parentage case against him was doomed to fail on the evidence but rather on an argument that it was doomed to fail as the Court lacked jurisdiction to hear it. As I have already made clear, I am satisfied that it does have the jurisdiction to hear the application and that it is not doomed to fail for want of jurisdiction alone. I am satisfied that determines the respondent’s application for summary dismissal against him.

   [7]See Harris v Harris [1979] 2 NSWLR 252 at 255 per McLelland J; followed in Robinson v Field (1981) 7 Fam LR 866 at 871 per Holland J.

5. Before concluding though, some other matters that I have considered in this determination of the respondent’s summary dismissal application are worthy, at least in my opinion, of mention. They are the Court’s power to grant the injunction sought by the applicant and/or to make the child maintenance order sought.

6. There is a distinction between the existence or non-existence of the Court’s jurisdiction to grant a s 68B injunction in respect of the subject child and the question of whether or not the Court will make such an order at the conclusion of a hearing. Of course, being an injunction directed at the respondent himself, the Court would rely on its contempt powers and its ability to impose penal sanctions upon the respondent, who is within its jurisdiction, to exact obedience to any such order that is made. That it would require the respondent to do something aimed at causing governmental administrative action in a foreign country is, alone, at least in my opinion, not sufficient reason to prevent the Court from making the order. Whether or not the Court would make the order, having regard to the laws of Country D, is a matter that simply cannot be determined at this point in the proceedings. At least in my opinion, that will ultimately depend heavily on the evidence the parties put forward at the hearing of the proceedings, in particular as to Country D law and the likely outcome of application being made by the applicant and the respondent for variation of those particulars at this point in time to the Country D Government authorities responsible for keeping the formal particulars of the subject child’s birth, where such application was made by the parties pursuant to an order of this Court.

7. What is or is not the law of a foreign country is a question of fact that must be proved by evidence. Evidence of the statute law and case law of a foreign country must be put before the Court in the proper manner[8]   Opinion evidence as to how that foreign law might actually apply in practice within that foreign country must, of course, be adduced from a witness who has specialised knowledge based on the person’s training, study or experience and must be wholly or substantially based on that knowledge.[9]

   [8]S 174 and s 175 of the Evidence Act 1995 (Cth)

   [9]S 79 of the Evidence Act 1995 (Cth)

8. Again, although I did not understand the respondent to be actually making a case that the applicant’s application for injunctive relief is doomed to fail for discretionary reasons, I do say, even if he did, that I simply cannot determine at this stage of the proceedings that this part of the applicant mother’s application is doomed to fail for such reasons.

9. Finally, much was said at the hearing in respect of the child maintenance application, particularly by the applicant’s solicitor. In particular reference was made to s 66E of the FLA. That section says:

   (1)  A court having jurisdiction under this Part must not, at any time, make, revive or vary a child maintenance order in relation to a child on the application of a person (the applicant ) against, or in favour of, a person (the respondent ) if an application could properly be made, at that time, by the applicant under the Child Support (Assessment) Act 1989 for the respondent to be assessed in respect of the costs of the child, or vice versa.

   (2)  Subsection (1) has effect whether or not an application for administrative assessment of child support for the child has in fact been made (whether by the applicant, the respondent or another person).

   (3)  This section does not apply to proceedings under regulations made for the purposes of section 110 or 111A.

10. In my view, at least, this is clearly a section going to the Court’s power to make a child maintenance order as distinct from its jurisdiction to hear child maintenance applications. As I have already observed, the respondent argued his case on the basis that the Court does not have jurisdiction to make orders in respect of a Country D child living with her mother in Country D. I did not understand him to argue that the child maintenance application is doomed to fail because the Court does not have power to make a child maintenance order in respect of the subject child because of the application of s 66E.

11. The applicant mother’s solicitor was clearly taken by surprise on the day of the hearing of the respondent’s application for summary dismissal, not expecting it to be made that day. She did not seek to have the matter adjourned, but rather chose to defend it on the day. She only relied upon the amended amended application and did not put evidence before the Court. The husband read several affidavits, some his own and one from his daughter of his marriage in this country.

12. The applicant’s solicitor was clearly concerned by the potential impact of the limitation on the Court’s power imposed by s 66E and made submissions, with reference to various provisions of the Child Support (Assessment) Act 1989 (“the Assessment Act”), that s 66E did not apply in this case so as to deprive the Court of power to make a child maintenance order. She was not able to take me to any evidence in support of that submission although she made reference to some facts that are not in dispute.

13. With respect to the applicant’s solicitor, ultimately, I am not persuaded that s 66E will not apply in this case to deprive the Court of the power to make the child maintenance order the applicant seeks. Again, that will depend on the evidence that the applicant mother puts before the Court in support of her application that deals with the matters that she will need to prove in particular to overcome the effect of s 66E. It is only the fact that the summary dismissal application was made by surprise to the mother and her legal representatives, and that the respondent made no submissions in respect of the application of s 66E in this case, that although not entirely satisfied that s 66E will not apply in this case, that I allow the child maintenance application to proceed to hearing so the mother gets a chance to put in evidence that might satisfy the Court that s 66E does not apply.

14. Pursuant to s 66E, if an application could properly be made by the applicant mother under the Assessment Act for the respondent to be assessed in respect of the costs of the child or by the respondent himself to be so assessed, then the Court will have no power to make the order the applicant mother seeks in her application.

15. Section 24(1) of the Assessment Act provides application may be made to the Child Support Registrar for administrative assessment of child support for a child only if the child is an eligible child and under 18 years of age and not a member of a couple and “except in a circumstance referred to in subsection (2), the child is present in Australia on the day on which the application is made or an Australian citizen or ordinarily resident in Australia on that day. “Eligible child” is defined in the Assessment Act as having the meaning given by Part 3 of the Assessment Act. The subject child was born in 1995, well after the commencement day of the Assessment Act which was 1 October 1989, so pursuant to s 19 in Part 2, she is an eligible child. She is under 18 and not a member of a couple. She is not present in Australia, an Australian citizen or ordinarily resident in Australia. Unless she falls within the exception provided for in s 24(2) of the Assessment Act, she is not a child in relation to whom an application may be made.

16. The s 24(2) exception applies if (i) the application is made under s 25 for a parent to be assessed in respect of the costs of the child, (ii) the parent is a resident of a reciprocating jurisdiction, and (iii) the Registrar has not determined under s 29A that child support is reasonably likely to be payable by the parent.

17. The reciprocating jurisdictions are prescribed in the Child Support (Registration and Collection) Regulations 1988 (Cth) reg 3A Sch 2 and Country D is included. This means Australia and Country D have reciprocal enforcement obligations.

18. The mother lives in Country D. Section 25 of the Assessment Act provides that she may apply to the Child Support Registrar for administrative assessment of child support if, relevantly, (i) she applies for both parents to be assessed in respect of the costs of the child; and (ii) the application meets the requirement of s 29A and s 29B of the Assessment Act. .

19. Pursuant to s 29B, relevantly, application must be made by the mother and given to the Registrar by an ‘overseas authority’ of Country D or it must be made by the ‘overseas authority’ of Country D on behalf of the mother.

20. Pursuant to s.29A (2), if such a s 25 application is made by or on behalf of the mother, the Registrar must determine whether child support is reasonably likely to be payable by her. If the Registrar determines that child support is not reasonably likely to be payable by the mother (as one would expect to be the case on the facts of this matter, the respondent not having a child living with him for which the mother is liable to pay child support), then the s 24(2) exception, that allows such an application to be made, applies.

21. It appears to me, therefore, that the mother living in Country D, a reciprocating jurisdiction, may apply, pursuant to all these sections of the Assessment Act, through the Country D “authority” (whatever that is) to the Australian Child Support Registrar for administrative assessment of child support in Australia, even though the subject child is neither present in Australia nor an Australian resident or citizen.  If that is correct, then s 66E looks to me as if it probably applies and this Court will have no power to make a child maintenance order. Accordingly, it would seem to me that the mother would have to provide evidence that satisfies the Court that no such application can be made or, at least, that every effort has been made to make such application and that it has been refused.

22. If such an application is made and is refused because the Registrar is not satisfied that the respondent is a parent of the subject child, then the applicant’s right of action might indeed be to seek a declaration (effectively a parentage declaration) from this Court pursuant to s 106A of the Assessment Act rather than a child maintenance order. The Court’s jurisdiction to make such a declaration arises from s 99(1) and s 100(1) of the Assessment Act.

23. I raise all of these matters for the consideration of the parties at this stage of the proceedings so that both parties can turn their minds to them in preparation for the hearing of the mother’s application that I am not prepared to summarily dismiss at this point, not being satisfied that it is doomed to fail.

24. I will dismiss the respondent’s summary dismissal application and direct that the proceedings be referred to the Registrar for the usual case management, preparatory to being placed in a trial call-over list at some point when it is ready in all respects for trial.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 4 November 2011.

Associate: 

Date:  4 November 2011