NANDI & LISTBERG

[2013] FamCA 419

FAMILY COURT OF AUSTRALIA

NANDI & LISTBERG [2013] FamCA 419

FAMILY LAW – CHILDREN – Presumption of paternity – Declaration of paternity – Where the father did not comply with an Order requiring a DNA test for paternity

FAMILY LAW – CHILD SUPPORT – Child maintenance – Overseas maintenance order – Where the child is a resident of a reciprocating jurisdiction – Where the mother could be properly assessed in respect of costs of the child – Where an application for child maintenance is precluded pursuant to s 66E

Family Law Act 1975 (Cth) Division 7 Part VII, s 66E, s 66G, s 66H, s 66J, s 66K, s 69Q, s 69VA, s 69W, s 69Y
Child Support (Assessment) Act 1989 (Cth) s 23, s 24, s 24A, s 25, s 29A, s 29B.
Child Support (Registration and Collection) Act 1988 (Cth) s 17, s 17A, s 18, s 24A, s 29B, s 30

G v H (1994) 181 CLR 387

APPLICANT: Ms Nandi

RESPONDENT: Mr Listberg

FILE NUMBER: BRC 10934 of 2010

DATE DELIVERED: 6 June 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 23 May 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Galvin
Journey Family Lawyers

FOR THE RESPONDENT: Mr Listberg in person

Orders

(1)It is declared that the respondent Mr Listberg is the father of the child, E born … October 1996.

(2)The applicant mother’s application for child maintenance is dismissed for want of power to make any such orders having regard to s 66E of the Family Law Act 1975.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nandi & Listberg 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 BRISBANE

FILE NUMBER: BRC10934 of 2010

Ms Nandi

Applicant

And

Mr Listberg

Respondent

REASONS FOR JUDGMENT

1.The applicant in this case, a Malaysian national and resident of that country, seeks a declaration pursuant to s 69VA of the Family Law Act 1975 (Cth) (“FLA”) that the respondent is the father of her 16 year old daughter, E, (“the child”). She also seeks an order pursuant to s 66G of the FLA, consequent upon such a declaration, that the respondent pays $600 per month by way of maintenance for the child.

2.The respondent claims he is not the father of the child and opposes the application for a declaration of paternity. He also opposes the application for child maintenance even if the declaration of paternity is made. He does so by reference to s 66E of the FLA which prevents the Court making a child maintenance order if an application could be properly made under Australian child support legislation for a child support assessment.

3.I have previously dismissed a summary dismissal application of the respondent in which he argued many of the same points that he makes again at this stage. I gave judgment in that matter on 4 November 2011. The respondent had argued that the Court did not have jurisdiction to hear the application. I determined that it did. That issue will not be revisited now.  

The Parentage Issue

4.Section 69VA of the FLA empowers the Court to decide the issue of paternity after hearing evidence and to issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth. The reference to “the Commonwealth” is, of course, a reference to the Commonwealth of Australia, not the Commonwealth of Nations of which both Australia and Malaysia are members.

5.There is no dispute that the applicant and respondent entered into a relationship in Malaysia in 1995. The respondent was born in Europe but had been living in Australia for a long time. He had either permanent residency status in Australia or had acquired Australian citizenship by the time he left this country and went to Malaysia in 1995.

6.Prior to leaving Australia and going to Malaysia, the respondent had been living with a woman he had married many years before in Europe. Interestingly, they had obtained a divorce in Europe after a couple of years of marriage but had clearly reconciled their relationship and had been cohabitating as a couple, no longer lawfully married to each other, in Australia. They had children as well in that time after they were already divorced.

7.The respondent met the applicant whilst on what was some form of working holiday to Malaysia. The applicant says they began to live together at the hotel resort where she worked in or around May of 1995. The respondent accepts that he and the applicant had “a torrid love affair” at around this time.

8.The applicant says that they went through a ceremonial wedding in June 1995 in Malaysia but does not contend that they complied with the laws of Malaysia so as to actually be lawfully married in that country. Her evidence is that they had agreed to move to Australia and that the respondent had told her that he considered that their relationship would be considered as a “de facto relationship” in Australia, providing them with equality of status to a lawfully married couple in any event. The husband denies this and says that they did not go through a ceremonial wedding but rather simply had a farewell party at which family and friends attended just before they left Malaysia and came to Australia.

9.The couple then moved to Australia on or around 15 June 1995. The applicant says a house was rented at Suburb B on the outskirts of Brisbane and in September 1995 an application for a ‘spouse’ visa providing the applicant with permanent residency status was made based on their de facto marital relationship. The respondent agrees that he joined with the applicant in applying for a ‘spouse’ visa on that basis. He conceded in oral evidence that he regarded their relationship as one that was, in time, certainly going to meet the requirements of two years of cohabitation to be regarded as a bona fide de facto relationship.

10.The applicant says that shortly after submitting the application for the ‘spouse’ visa “unforeseen family circumstances” required her to return to Malaysia. That return resulted in the automatic cancellation of her ‘spouse’ visa application.

11.The respondent did not accompany the applicant back to Malaysia but did return there in December 1995. The applicant says that they again took up cohabitation on the respondent’s return to Malaysia and that they then started trying to conceive a child. She says the respondent even attended with her at appointments with her obstetrician during this period where they discussed their desire to get pregnant. The applicant says she learned she was pregnant in February 1996 and that she and the respondent continued to live together in Malaysia until in or around April 1996. The applicant says that the respondent was the only person with whom she was engaging in sexual intercourse at the time and that their intercourse was always “unprotected”. She says that she told the respondent of the pregnancy when she learned of it in February 1996 and she says he appeared to be delighted to hear that news.

12.The respondent did not have any right of permanent residency in Malaysia and was in the country between December 1995 and April 1996 on two month visitor’s visas that he simply renewed at the end of January 1996 and again at the end of March 1996 by short trips into Thailand and Singapore respectively.

13.The applicant says that after the respondent returned to Australia in early April 1996 he told the applicant by phone that his “wife” in Australia had given birth to his baby and that he would be relocating her and her child to live in Malaysia with him. Nevertheless, the applicant says that they continued to communicate by phone about her pregnancy and that when he returned to Malaysia again in May 1996 they lived together again for a short time until he left for Australia again in June 1996, at which time they finally ended their relationship.

14.The applicant gave birth to her baby in October 1996. That child is now 16 years old. The applicant says that her relationship with the respondent broke down completely after the birth of the child and that despite efforts to contact him over the years and to encourage him to have communication with the child he has not been interested.

15.The applicant commenced these proceedings in the Federal Magistrates Court (as it then was called) here in Brisbane in 2010, having again located the respondent here.

16.The respondent denies that he lived with the applicant on his return to Malaysia in December 1995 or at any time after that. He denies that they had sexual intercourse again after the applicant left Australia in September 1995 and, on that basis, asserts that he cannot be the father of the child. He says that he had heard in 1996 that the applicant was saying that she was pregnant and carrying his baby and says that a few weeks after the baby was born he visited the applicant and the baby just to satisfy himself that she had given birth to a baby.

17.The respondent was certainly never entered on the child’s birth certificate in Malaysia.

18.Between my dismissal of the respondent’s summary dismissal application in 2011 and the trial in this matter on 23 May 2013, Principal Registrar Filippello of this Court made an order pursuant to s 69W of the FLA, on the application of the applicant, for the applicant, the child and the respondent to undergo parentage testing procedures for the purpose of determining the parentage of the said child.

19.Notwithstanding the Principal Registrar’s orders, the respondent chose not to participate in that parentage testing procedure. Accordingly, no testing was done. Section 69Y(1) of the FLA provides that a person who contravenes a parentage testing order is not liable to any penalty in relation to that contravention. Section 69Y(2) of the FLA empowers the Court to draw such inferences from the contravention as appear just in the circumstances.

20.The respondent said in his oral evidence that he did not participate in the parentage testing because he knew he could not be compelled to. When pressed further on the subject, he said that “at this stage” of his life, he did not want to know if the child was his biological child.

21.Tendered into evidence (exhibit 3) by the applicant during cross-examination of the respondent was a small card on the stationery of the resort where the applicant says she and the respondent lived in 1996 when they lived together. It had a message written in handwriting that the respondent agreed, on careful inspection of the card, was his. It says:

[The applicant’s first name], my love!
I accept my debt to you at the dollar amount you mentioned.
The life we created together will link us eternally, so I will know you forever, not just for a long time!
Love [a nickname]

22.Whilst the respondent accepted he had written the card to the applicant (because it was his handwriting), he said he had absolutely no memory of doing so. He denied that the reference to “the life we created together” was a reference to the applicant’s baby that she was carrying at that time. Whilst the respondent accepted that the words of the card could certainly be read that way, he denied that he would have meant it that way because, he claimed, he could not be the father of the child and said he had never accepted that he was. As such, he says he would never have written words meant to carry that meaning.

23.The respondent did accept that he had been doing work under contract to the same company for whom the applicant worked when he was in Malaysia in 1996. He accepted that he was doing trade work in the resorts. The applicant tendered into evidence a copy of a document dated 10 June 1996 that she had signed which was a declaration by an employee of that company of business undertaken between the company and persons connected with the employee of the company. In the document, the applicant purports to disclose that the respondent, who she referred to in the document as her “spouse” was engaged in a contract with the company from May 1996 doing trade work. The respondent simply dismissed the evidence as another part of what he described as a “reign of terror” perpetrated against him and his family by the applicant from the time she fell pregnant.

24.The respondent put into evidence a written communication from the applicant to one of his daughters, who was 18 years of age at the time, apparently having occurred in late January 1996. The applicant was not cross-examined about the contents at all, but, through her solicitor, admitted she had sent it. It contained profane and obscene remarks from the applicant directed at the respondent and his family. The respondent also put into evidence his then 18 year old daughter’s written response. It, too, contained, profane and obscene remarks directed at the applicant. The documents evidence some very distressing and ugly communication between two women, who clearly were deeply hurt and angry at the time. None of the contents of either document proves that the respondent is not the biological father of the child the subject of these proceedings. There is nothing in either document that supports a finding that the respondent was not living with, or did not have sexual intercourse with the applicant as she claims when she conceived the child. The date on the document sent by facsimile transmission to the respondent’s daughter by the applicant is during the period that the respondent was in Thailand at the end of January 1996, before returning to Malaysia in February 1996.

25.The respondent, who was unrepresented at the trial, cross-examined the applicant. He only asked her a few questions and, I say respectfully, made absolutely no impact upon her credibility whatsoever. I cannot say I have any doubts about the reliability of her evidence.

Is the respondent the father of the child?

26.Subdivision D of Part VII – Division 12 of the FLA includes a number of rebuttable presumptions of parentage. Section 69Q provides for a presumption that a child is presumed to be a child of a man if that child is born to a woman who cohabited with that man (to whom she was not married) at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth of the child.

27.In this case, the child was born in October 1996. I accept the applicant’s evidence that the respondent lived with her from December 1995 through to May 1996, with short periods away from Malaysia in that time. I accept that they lived together in January 1996 when the child was conceived. I reject the respondent’s denial of that fact. Accordingly, pursuant to s 69Q of FLA the child is presumed to be the respondent’s child. Nothing said or put into evidence by the respondent, in my view, rebutted that presumption on the balance of probabilities.

28.The evidence of the card the father gave to the mother that is exhibit 3, in my view, supports a finding that, at a time when he was separating from the applicant, he acknowledged that they had together conceived the child that the applicant was carrying.

29.Against that evidence, the respondent’s deliberate refusal to participate, as ordered, in parentage testing, because, as he said, he did not want to find out if he is the child’s father at this stage of his life, allows the Court, in my view, to safely and justly draw an inference that it is more probable than not that the outcome of the test would be unfavourable to him.[1] As I said during the course of the hearing, if the respondent is confident that he is not the child’s father (as he positively asserts he cannot be), the easiest way for him to establish that is to participate in the parentage testing procedures. That he would not do that speaks volumes about his own expressed conviction that he is not the father of the child and cannot be.

[1]          See G v H (1994) 181 CLR 387

30.In all the circumstances of this case, I am quite satisfied, on the balance of probabilities, that the respondent is the father of the subject child and I will make a declaration to that effect.

The Child Maintenance Application

31.In my reasons for judgment on the summary dismissal application I discussed the application of s 66E of the FLA and some relevant provisions of the Child Support (Assessment) Act 1989 (Cth) (“Assessment Act”).

32.Section 66E of the FLA provides:

(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 (Cth) 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.

33.The respondent maintains the submission that this section applies and that the Court is not permitted to make a child maintenance order against him because of this section.

34.That submission, no doubt, is based on the respondent’s belief that Australian child support legislation provides for the applicant, albeit a resident and citizen of Malaysia, or the respondent himself to be able to make an application to the Child Support Agency in Australia for child support to be assessed in respect of the subject child, regardless of whether either of them makes such an application or not.

35.The respondent’s position on this point is probably partly based, at least, in something that I said in my reasons for judgment in his summary dismissal application on 4 November 2011. At [42] of those reasons, I said:

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.

(My highlighting for the purposes of further discussion below, although I did not highlight that provision in those reasons.)

36.At the end of the trial, I understood the submission of the solicitor for the applicant to be that the precise interpretation of s 66E provided for in that passage is not a correct interpretation of the section. Her submission was that the use of the words “or vice versa” at the very end of subsection 1 of s 66E has the effect of simply requiring the words “applicant” and “respondent” in the second last line and last line of that subsection to be reversed and for the application of the subsection to be reconsidered in that reverse context after considering the application of the subsection as written, such that there are only two possible ways of actually considering the matter as provided for in the subsection.

37.Accordingly, the applicant’s solicitor submits, effectively, that the section applies, and this Court has no power to make the child maintenance orders sought by the applicant, if:

(i)an application could properly be made, at that time, by the applicant (the mother of the child) under the Child Support (Assessment) Act 1989 for the respondent (the declared father of the child) to be assessed in respect of the costs of the child; or

(ii)an application could properly be made, at that time, by the respondent (the declared father of the child) under the Child Support (Assessment) Act 1989 for the applicant (the mother of the child) to be assessed in respect of the costs of the child.

38.The applicant’s solicitor effectively submits that the subsection cannot be read so as to include consideration as to whether an application by the respondent (the declared father of the child) under the Assessment Act for himself to be assessed in respect of the costs of the child could be properly made, as the wording of [42] of my previous reasons indicated.  

39.In response to that submission, the respondent said he would leave it to the Court to determine the correct interpretation of s 66E (1).

40.Upon reflection, I consider the submission of the applicant’s solicitor to be correct. I now do not consider the sub-section can be read so as to include consideration as to whether an application can be properly made by the respondent for himself to be assessed in respect of the costs of the child. I accept that it is only if an application could properly be made by the mother for the respondent to be assessed for child support or by the respondent for the mother to be assessed for child support that the prohibition included in s 66E of the FLA is put in place.

41.To determine whether or not the applicant mother could properly make an application for the respondent to be assessed for child support or whether or not the respondent could properly make an application for the applicant mother to be assessed for child support requires consideration of provisions of the Child Support (Assessment) Act 1989.

What do the provisions of the Child Support (Assessment) Act 1989 say?

42.Section 23 provides, relevantly:

An application for administrative assessment of child support is properly made if it complies with the following provisions:

(a)section 24 (Children in relation to whom applications may be made);

(b)section 25 (Persons who may apply – parents);

(c)...

(d)section 27  (Formal requirements for applications).

43.As I said in my reasons for judgment in the summary dismissal case, section 24 provides application may be made to the Child Support Registrar for administrative assessment of child support 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), only if the child is present in Australia on the day on which the application is made or is an Australian citizen, or ordinarily resident in Australia on the day on which the application is made.

44.“Eligible child” is defined in the Assessment Act. It has the meaning given by Part 3 of that Act. Section 19 in Part 3 says a child born after “the commencing day” is an eligible child. The commencement day for the Act was 1 October 1989, so the subject child in this case is an eligible child. She is under 18 years of age and is not a member of a couple. She is not an Australian citizen, is not ordinarily resident in Australia and not present in Australia.

45.Accordingly, an application cannot properly be made for a child support assessment by either parent unless the factual circumstances fall within the exception provided for in sub-section (2) of s 24.

46.That subsection provides that the requirement for the subject child to be an Australian citizen or resident in Australia does not apply if, relevantly, all of the following apply:

(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 of the child is a resident of a reciprocating jurisdiction;

(iii)the Child Support Registrar has not determined under s 29A that child support is reasonably likely to be payable by the parent.

47.There is no dispute in this case that Malaysia is a “reciprocating jurisdiction” within the relevant meaning of that term.[2]

[2]See the definition in section 4 of the Child Support (Registration and Collection) Act 1988 and Regulation 3A and Schedule 2 to the Child Support (Registration and Collection) Regulations 1988

48.Section 25 is the section by which a parent of a child may apply for administrative assessment of child support for that child. It provides that a parent of a child may apply to the Child Support Registrar for administrative assessment of child support if, relevantly:

(a)the applicant (parent) applies for both parents to be assessed in respect of the costs of the child; and

...

(d) if either parent of the child is not a resident of Australia on the day on which the application is made – the application meets the requirements of sections 29A and 29B.

49.Section 29A applies if an application is made under s 25 for a parent to be assessed in respect of the costs of a child and the parent is not a resident of Australia on the day on which the application is made. As s 25(a) requires an application that is made by a parent to be an application for both parents to be assessed, s 29A applies, in my view, if either parent is not a resident of Australia on the day on which the application is made (s 29A(1)).

50.If one of the parents being assessed in respect of the costs of the child is not a resident of Australia on that day, the Registrar must determine whether child support is reasonably likely to be payable by that parent (s 29A(2)). Subsection (3) of s 29A provides that if the Registrar determines that child support is reasonably likely to be payable by the parent (that is the parent who is not a resident of Australia) then the application is taken to have been properly made only if:

(a)sub-section 24(2) does not apply in relation to the child (payee of child support resident in reciprocating jurisdiction) and

(b)the parent is a resident of a reciprocating jurisdiction on the day on which the application is made.

51.Section 29B provides that if the person (a parent) applying under s 25 is a resident of a reciprocating jurisdiction, the application (the one made under s 25) must be made:

(a)by the person and given to the Registrar by an overseas authority of the reciprocating jurisdiction; or

(b)if an overseas authority of the reciprocating jurisdiction believes that child support is reasonably likely to be payable to the person in respect of a child – by the overseas authority on behalf of the person; or

(c)if the person believes that child support is reasonably likely to be payable by him or her to another person in respect of a child  - directly to the Registrar by the person.

52.“Overseas authority” is not defined in the Assessment Act, but is in the Child Support (Registration and Collection) Act 1988.  It is defined to mean a judicial or administrative authority of a reciprocating jurisdiction that is responsible for giving effect to an international maintenance arrangement.

Can an application be properly made by the mother under the Assessment Act for the respondent to be assessed in respect of the costs of the child?

53.The mother is a citizen and resident of Malaysia which is a reciprocating jurisdiction. The child lives with the mother in Malaysia. As a parent, the mother is only able to apply pursuant to s 25 for administrative assessment of child support for the child if she applies for both parents to be assessed in respect of the costs of the child.

54.Because the mother is not a resident of Australia, any application made by her pursuant to s 25 must meet the requirements of s 29A and s 29B.

55.If the mother made application, the Registrar must, pursuant to s 29A, determine whether she is reasonably likely to have to pay child support (as she is not a resident of Australia).  On the facts of this case, given the child lives with the mother in Malaysia and spends absolutely no time with the respondent, there is no likelihood of the mother having to pay child support. Consideration of the matters set out in s 29A(3) is, therefore, not necessary.

56.However, where application was to be made by the mother, because she is a resident of a reciprocating jurisdiction, then the requirements of s 29B do apply.

57.The mother could not believe that child support is reasonably likely to be payable by her to the respondent in respect of the subject child, so she is not required to apply directly to the Child Support Registrar (s 29B(1)(c)).

58.Section 29B(1)(a) requires an application (where the mother does not believe that she is likely to have to pay child support to another person) to be made by her but to be given to the Child Support Registrar by an overseas authority of Malaysia. Alternatively, if an overseas authority of Malaysia believes that child support is reasonably likely to be payable to the person in respect of a child, the application is to be made by the overseas authority on behalf of the mother (s 29B(1)(b)).

59.It is in respect of the application of the requirements of s 29B(1)(a) and (b) that the evidence adduced by the mother in her case from Ms C, a policy officer with the Commonwealth Department of Human Services (Child Support Agency), who was subpoenaed by the mother to give oral evidence at the trial, is of relevance.

60.In her evidence, Ms C stated:

·That Malaysia is a “reciprocating jurisdiction” but there is no formal international agreement in respect of child support that Australia and Malaysia are actually party to;

·That she is not aware of an “overseas authority” in Malaysia, as that term is used in the Assessment Act (as defined in the Registration and Collection Act), although the CSA would “probably” consider the Malaysian court system to be an “overseas authority” within Malaysia if any request came from a Malaysian court pursuant to s 29B of the Assessment Act;

·That she has no knowledge of a successful application to the CSA in Australia being made pursuant to the provisions of the Assessment Act  by a parent in Malaysia;

·That she was aware of four cases where parents who lived with children in Australia obtained child support assessments in Australia and then went, with the children, to Malaysia to live, in which the CSA collects and sends money to Malaysia to the payee;

·That she is not aware of an application being made at all by a person resident in Malaysia;

·That a parent in Malaysia who seeks child support from a parent in Australia would have to have the application forwarded to Australia by an “overseas authority” and she is not aware of any such application from Malaysia ever having been received by the CSA before.

·That a payer parent in Australia could apply to the CSA in Australia to be “assessed” in respect of a child living in Malaysia with a payee parent, but that she is not sure if it could be registered for collection. 

61.In respect of that last point of evidence, s 24A of the Registration and Collection Act is relevant. It provides:

(1)  Subject to subsection (2), where the Registrar makes a child support assessment under which a registrable maintenance liability arises, the Registrar must immediately register the liability under this Act by entering particulars of the liability in the Child Support Register.

(2)  Subsection (1) does not apply in relation to a registrable maintenance liability if:

(b)the payee elected in the relevant application for assessment of child support or the relevant application for acceptance of a child support agreement, as the case requires, not to have the liability enforced under this Act; or

(c)the application giving rise to the child support assessment was made by the parent by whom child support is payable.

(3)  Despite subsection (1), if the Registrar makes a child support assessment in a case where either the payer or the payee is a resident of a reciprocating jurisdiction, the Registrar must register the liability under this Act as soon as practicable, rather than immediately, after making the assessment.

62.A “registrable maintenance liability” is defined in the Registration and Collection Act as a liability that is, under section 17, 17A, 18 or 18A (of the Registration and Collection Act) a registrable maintenance liability. Section 17(2) relevantly provides that a liability is a registrable maintenance liability if it arises under a child support assessment.

63.Accordingly, the registration of a child support liability in the Child Support Register (the event that creates, pursuant to s 30 of the Registration and Collection Act, a debt due to the Commonwealth by the payer in accordance with the particulars of the liability entered in the Register) must occur, subject to the exceptions provided for in subsection (2) of s 24A, where the Registrar makes a child support assessment under which a registrable maintenance liability arises (s 24A(1) of the Registration and Collection Act).

64.The mandatory requirement of registration where the Registrar makes a child support assessment under which a registrable maintenance liability arises is subject to exception if the payee elected in the application not to have the liability enforced under the Registration and Collection Act or the application giving rise to the child support assessment was made by the parent by whom child support is payable (s 24A(2)).

65.The wording of subsection (3) of s 24A, in my view, simply adds a gloss to the subsection (1) requirement, mandating registration of a liability arising from a child support assessment in a case where either the payer or the payee is a resident of a reciprocating jurisdiction to as soon as practicable, rather than immediately, after the assessment. It is, in my view, still subject to the s 24A(2) exceptions to mandatory registration, including where the application giving rise to the child support assessment was made by the parent by whom child support is payable. The provisions of s 25, particularly subsections (1) and (1C), providing for the payee of a registrable maintenance liability that is not registered to apply to the Registrar for the registration of the liability and providing for the payer of a registrable maintenance liability that is not registered to apply to the Registrar for the registration of the liability if either the payer or the payee of the registrable maintenance liability is a resident of a reciprocating jurisdiction support this interpretation of the effect of s 24A(3), in my view.

66.Accordingly, although Ms C expressed uncertainty about whether an assessed liability could be registered after an application for assessment made by a payer resident in Australia in respect of a child living with a payee in Malaysia, I consider that the law does allow for the registration of such a liability either at the application of the payer or the payee for such registration to occur.

But what of s 29B of the Assessment Act and its requirements?

67.If the mother was the parent applying under s 25 she must make the application and have it given to the Australian Child Support Registrar by an overseas authority of Malaysia, or, if an overseas authority in Malaysia believes that child support is reasonably likely to be payable to the person in respect of the child in this case, the application has to be made by it on behalf of the mother.

68.The applicant mother’s solicitor relied on the evidence of Ms C and the respondent’s own position that the applicant, being the mother of an ex nuptial child in Malaysia, has absolutely no right in that country to apply for child maintenance for that child from the father, whether paternity is established or not, in support of the submission that the Court must, therefore, find that the mother could not go to a Malaysian Court (or any other authority if there is one) in Malaysia and have an application pursuant to s 25 transmitted to the Child Support Registrar in this country, let alone persuade the Malaysian Court that child support is reasonably likely to be payable to her in respect of the child such that they would apply on her behalf to the Australian Child Support Registrar.

69.The respondent’s position has always been, since the commencement of these proceedings in this Court, that which is set out at the beginning of the previous paragraph. At the trial, particularly in the oral submissions he made at the conclusion of the trial, the respondent did not resile from that position, even after he heard the applicant’s solicitor put her submissions. In fact, he reiterated his belief that such is the law in Malaysia and that the applicant mother is required, by law in that country, to totally support the child herself.

70.Although some long-standing Malaysian legislation about enforcement of maintenance orders obtained in Malaysian courts was tendered into evidence on behalf of the applicant, no evidence about any law in Malaysia that proves that the applicant has a right to apply in Malaysia for maintenance for her ex nuptial child in any way was put into evidence before the Court for the trial. It was, at the trial, common ground, therefore, that the mother has no such right.

71.The applicant mother’s solicitor effectively submitted that acceptance of the respondent’s position that the mother has no legal right to go to a Court or any other authority in Malaysia and seek maintenance or child support from him, leads inexorably to a finding that the requirements of s 29B can not be met. Those requirements not being met, the submission continues, the requirements for a proper application to be made by the mother pursuant to s 25 are not met and the matter, therefore, does not fall within the exception provided for in subsection (2) of s 24.

72.Consequently, the mother’s solicitor submitted, the mother could not properly make application under the Assessment Act for the respondent to be assessed in respect of the costs of the subject child and s 66E of the FLA is not triggered, at least in so far as the first application of it is concerned.

73.I accept that submission. I must now consider the second part of the application of s 66 E.

Can an application be properly made by the respondent under the Assessment Act for the mother to be assessed in respect of the costs of the child?

74.Ms C’s evidence was that a payer resident in Australia could, she believed, make an application for administrative assessment of child support in respect of a child living in Malaysia with a Malaysian resident parent. As I have already determined, if that happened and it resulted in a liability being assessed, that liability could be registered on the application of the payee or the payer.

75.If Ms C is indeed correct at law, it would appear that s 66E applies and the prohibition against the Court making orders for child maintenance against the respondent may indeed be triggered.

76.Again, as the child lives in Malaysia, an application could only be made by the respondent if the exception contained in s 24(2) of the Assessment Act applies. The respondent is declared the father of the subject child by this Court. His application as a parent for the mother to be assessed in respect of the costs of the child would have to be made pursuant to s 25. Again, that would require both parents to be assessed in respect of the costs of the child and, because the mother is not resident of Australia, the requirements of s 29A and s 29B must be met.

77.Section 29B is not applicable at all because the respondent who would be the one making the application is not a resident of a reciprocating jurisdiction. S 29A (1) applies as the mother is not a resident of Australia. As such, the Registrar must, pursuant to s 29A(2) determine whether child support is reasonably likely to be payable by the mother. As I have already observed, on the facts of this case, it is not going to be determined likely that child support will be payable by the mother. Accordingly, s 29A has no other requirements to be met in an application for assessment made by the respondent.

78.Accordingly, an application made by the respondent (as the father of the subject child) pursuant to s 25 would, I find, be an application in which both him and the mother are to be assessed in respect of the costs of the child and which would, given the mother is not a resident of Australia, relevantly meet the requirements of sections 29A and 29B.

79.Finally, I turn then to consideration of s 24(2), to determine if the matter falls within the exception to the s 24(1)(b) requirement for the child to be present in Australia on the day on which the application for assessment is made or to be an Australian citizen or ordinarily resident in Australia on that day for an application to be able to be properly made. The application would, as I have observed already, be an application by the respondent (a parent) for the mother to be assessed in respect of the costs of the child. Pursuant to s 25, of course, the respondent (a parent) would also be applying for himself to be assessed at the same time. That, however, is a statutory consequence of an application by a parent pursuant to s 25, made necessary by the factual particulars that are required to be utilised in the application of the formula provided for in Part 5 of the Assessment Act.

80.The mother who would be assessed pursuant to the s 25 application of the respondent is a resident of a reciprocating jurisdiction (Malaysia) and the Registrar will not be determining that child support is reasonably likely to be payable by the mother. Consequently, it appears to me that subsection 24(1)(b) does not apply and an application by the respondent under the Assessment Act for the mother to be assessed in respect of the costs of the subject child could properly be made even though it has not in fact been made, thus triggering the operation of s 66E of the FLA and preventing the Court from making a child maintenance order against the respondent.

81.It is most unlikely on the facts of this case that the respondent will actually apply for an administrative assessment of child support. That makes it seem very unjust for the mother not to be able to obtain a child maintenance order from this Court pursuant to the provisions of subdivision D of Division 7 of Part VII of the FLA. That is the unfortunate consequence, I am satisfied, of the proper application of s 66E of the FLA and all of the operative provisions of the Assessment Act and the Registration and Collection Act on the evidence that is before me.

82.Although it makes no difference to my determination of this application for child maintenance, it might be that the undisputed position adopted by the parties before me that the mother has no right or ability to have a Malaysian court or some other administrative authority in Malaysia transmit an application for child support assessment made by her to the Australian Child Support Registrar is actually incorrect, particularly now that she will be possessed of a declaration of this Court that the respondent is indeed the father of the subject child. That said, I must nevertheless dismiss the mother’s application for child maintenance because I am satisfied that s 66E of the FLA prevents me from making an order.

What order would I have made but for the effect of s 66E?

83.Even though I am dismissing the mother’s child maintenance application, I consider it appropriate to go on and determine what child maintenance order I would have made had I found that I was not prevented from making such an order by s 66E.

84.All of the evidence of the mother’s costs of maintaining the child and her own capacity to contribute to those costs went unchallenged by the respondent.

85.The mother deposed to expenses for the child being $183 per week, the equivalent of $793 per month. She deposed to gross weekly earnings of $900.

86.The evidence produced under subpoena by the respondent’s employer showed he is earning a gross income of $3,374 per fortnight, the equivalent of $1,687 per week. That evidence also showed that he voluntarily sacrifices $306.59 from his gross salary each fortnight, the equivalent of $153.29 per week, into superannuation and the payment of household utility bills.

87.There was no other evidence about the respondent’s expenditure and his capacity to pay child maintenance. There was evidence, given by the respondent, that he has two other teenage girls who are dependent upon him for financial support still. That was not disputed.

88.Adding the respondent’s gross weekly income and the mother’s gross weekly income together equals $2,587. The respondent’s income is the equivalent of 65% of that total.   65% of the total of the mother’s weekly costs for the child is $119.00. Clearly, having regard to the fact that the respondent voluntarily salary sacrifices $153.29 each week, he has the capacity to pay that much each week towards the child’s maintenance.

89.The respondent also informed the Court from the bar table, without objection from the mother’s solicitor, that he had done a calculation of the liability that he would likely have on an administrative assessment of child support by using the Australian Child Support Agency’s Ready Reckoner. He said that resulted in an assessment of $450 per month. That is the equivalent of $104 per week. That assessment takes into account his obligations to support his other two teenage girls he informed the Court.

90.I am satisfied, having regard to the matters required to be considered pursuant to sections 66H, 66J and 66 K of the FLA and the limited evidence about these relevant matters in this case, that the orders I would make if I had determined that I could would be that the respondent pay the applicant the sum of $120 per week by way of child maintenance for the child E born … October 1996, the liability for such weekly payments to commence from the date on which the mother’s amended amended application was filed, namely 8 September 2011, in which her application was first appropriately framed in terms of the orders she was seeking against the respondent.

91.All that said, I make the declaration and orders set out at the commencement of these reasons.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 6 June 2013.

Associate: 

Date:  6 June 2013