NANDI & LISTBERG

The Family Court of Australia considered an application by Ms Nandi, a Malaysian national, seeking a declaration that Mr Listberg is the father of her daughter, E, and an order for child maintenance. Mr Listberg opposed both applications, arguing he was not the father and that the court lacked the power to make a maintenance order due to the provisions of section 66E of the *Family Law Act 1975* (Cth).

The court was required to determine two primary legal issues: firstly, whether the presumption of paternity could be established against Mr Listberg, and secondly, whether section 66E of the *Family Law Act 1975* precluded the court from making an order for child maintenance. The presumption of paternity arises under section 69Q of the *Family Law Act 1975* where a child is born to a woman who cohabited with a man (to whom she was not married) during the period between 20 and 44 weeks before the birth. Section 66E of the *Family Law Act 1975* prevents a court from making a child maintenance order if an application could properly be made under the *Child Support (Assessment) Act 1989* (Cth) for child support assessment.

The court found that the presumption of paternity under section 69Q was established, accepting the applicant's evidence of cohabitation with the respondent during the relevant period and rejecting the respondent's denials. The court further noted that the respondent's deliberate refusal to comply with a court order for parentage testing allowed for an inference that the outcome of such testing would have been unfavourable to him, supporting the finding of paternity. Regarding the child maintenance application, the court interpreted section 66E of the *Family Law Act 1975* to mean that an order is precluded if an application for child support assessment could properly be made by either parent under the *Child Support (Assessment) Act 1989*. The court determined that such an application could not be properly made under the *Child Support (Assessment) Act 1989* because the child was not an Australian citizen or ordinarily resident in Australia, and the exception for residents of reciprocating jurisdictions did not apply.

Consequently, the court declared Mr Listberg to be the father of the child, E. However, the court dismissed the applicant mother's application for child maintenance, finding it had no power to make such an order due to the operation of section 66E of the *Family Law Act 1975*, as an application for child support assessment could have been properly made under the *Child Support (Assessment) Act 1989* by the respondent for the applicant to be assessed in respect of the costs of the child.