OP v HM

[2002] FamCA 454

[2002] FamCA 454

FAMILY LAW ACT 1975

IN THE FULL COURT       
OF THE FAMILY COURT OF AUSTRALIA                  Appeal No WA1L of 2002
AT PERTH  File No PT2960 of 1995

BETWEEN:

OP
Applicant Husband
- and -

HM
Respondent Wife

REASONS FOR JUDGMENT

CORAM:  KAY, COLEMAN & ROSE JJ
DATE OF HEARING:                 By way of written submissions
DATE OF JUDGMENT:             27 June 2002

SUBMISSIONS RECEIVED FROM:

The Applicant Husband, PO Box 63, Burswood, WA  6100.

R E Purvis & Co, Barristers & Solicitors, PO Box 887, Fremantle, WA 6959, on behalf of the Respondent Wife.

OP and HM
WA 1L of 2002
Coram:                    Kay, Coleman & Rose JJ
Date of judgment:  27 June 2002

CHILD SUPPORT – Application for declaration – parentage testing – presumption of legitimacy.

CHILDREN – Parentage testing – length of gestation.

The applicant sought leave to file an application for a declaration pursuant to s 107(4)(c) of the Child Support (Assessment) Act) 1989 that his former wife was not entitled to an administrative assessment of child support for the children born during the marriage. In furtherance of the declaration he sought an order that he, his former wife and the children undergo parentage testing pursuant to s 69W of the Family Law Act 1975. The child support application was 6 years out of time.

He had twice previously made applications for parentage testing in the course of Family Law Act proceedings. The applications had been refused.

At trial the husband’s explanation of the delay was that until recently the orders had no practical effect until the recent issue of an assessment. He conceded there was no reason to doubt paternity of the elder child, but denied paternity of the younger child, despite conceding sexual intercourse with his wife 258 days before the child’s birth. The wife’s evidence was that there had been no separation around that time and she had not had intercourse with any other person. The husband claimed the child was induced ten days post term but offered no medical evidence in support.

Martin J dismissed the husband’s application. Her Honour considered the issue of res judicata but decided the matter on the basis that there was no reasonable explanation for the delay and no cogent evidence putting in issue the paternity of the children.

The husband appealed, arguing inter alia that in Tobin and Tobin (1999) FLC 92-848 the Full Court had indicated that, save in the cases of adoption and artificial conception, a man can only be liable for a child support assessment if he is the biological parent of the child the subject matter of the assessment. He asserted that any presumption of paternity raised by s 29 of the Child Support (Assessment) Act is only valid until challenged and once challenged the Family Court “has no power to require the payment of child support without the parent having certainty of biological parentage”.

Held: in dismissing the appeal

• The trial Judge’s finding that there was no reasonable explanation for the delay was…