OP v HM
[2002] FamCA 454
•27 June 2002
[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 correct.
258 days after intercourse is clearly within a period of normal gestation: Dicta in Duroux v Martin (1993) FLC 92-432 requiring gestation to be calculated on the basis of 280 days, if referable to date of conception, doubted; Re G v H (1992) FLC 92-317 considered.
Nothing in Tobin’s case was intended to lay down a principle that absent clear proof of biological parentage, no child support assessment could issue. The statutory provisions are entirely to the contrary. There is a presumption under s 29(2)(a) whereby the Registrar may be satisfied that a person is the parent of a child if satisfied the person was a party to a marriage and the child was born during the marriage.
While a properly conducted DNA test that clearly demonstrated that the husband of a woman who bore a child during the course of their marriage could not be the biological father of the child would normally be ample evidence to rebut the s29(2)(a) presumption, the discretion whether to conduct such a test is governed by s 69W of the Family Law Act.
The husband could not have had either a bona fide or reasonable belief that he was anything other than the father of the child and there was no error on behalf of the trial Judge in exercising her discretion: Duroux v Martin applied.
APPEAL DISMISSED
COSTS APPLICATIONS CALLED FOR
REPORTABLE
This is an application for leave to appeal against orders made by Martin J on 1 March 2002. Her Honour dismissed an application by the husband seeking leave to file an application out of time. She adjourned the further hearing of costs issues relating to that application.
In his application the husband sought 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 W born June 1985 and N born December 1988 payable by him. He also sought an order that he, his former wife and the children undergo parentage testing pursuant to the provisions of s 69W of the Family Law Act 1975.
Background
The parties to the proceedings were married in 1979. They separated in 1994 and were divorced in 1997. Although the respondent has remarried it is convenient for the purposes of this judgment to still refer to the parties as “the husband” and “the wife”.
The wife gave birth to both W and N in the course of the marriage.
After the parties separated the wife obtained a child support assessment payable by the husband in respect of the children. According to the husband’s affidavit the assessment first issued 22 January 1996.
It would appear that no money was ever directly paid to the Child Support Agency in respect of any Notice of Assessment although the Agency gave the husband credit for extra-Agency payments. Those payments were made up in part by way of mortgage payments taken as being in lieu of child support, two car loan payments, a car service payment and the funding of W’s [overseas] trip. In total, amounts of approximately $18,300 were credited to the husband in accordance with the provisions of ss 71 and 71A of the Child Support (Registration and Collection) Act 1988 between 1996 and 2000.
In October 1998 the husband filed an application pursuant to the provisions of the Family Law Act 1975 seeking parentage testing in relation to the children. That application was refused by Andrews SM on 26 November 1988.
The husband subsequently sought leave to appeal out of time from the decision of Andrews SM. Those proceedings were heard by Penny J and were dismissed on 28 June 1999.
In the proceedings before Andrews SM the wife had given evidence that there was no separation between herself and the husband around the times of conception and she did not have sexual intercourse with any other person other than the husband. She said that the child N was conceived during a weekend holiday at [named resort].
In an affidavit filed in the proceedings before Penny J the husband said:
“The records of the Husband show that this weekend at [named resort] occurred on the 19th to the 21st March, 1988. The child N was born on December 2, 1988, the labour being induced as the child was some ten days post-term, and the respondent’s doctor was concerned about possible complications. Calculating back 280 days for normal gestation, plus 10 days post-term places the date of conception at mid February.”
On 1 August 2000 the wife filed a Form 8 application seeking certain parenting orders. The husband responded on 2 August 2000 again seeking an order that the parties undergo parentage testing in relation to the children. On that day he was restrained by injunction from taking body samples from the children.
The application to extend time
The husband’s application for leave to bring the Child Support application out of time was filed on 20 December 2001. In dismissing that application Martin J said (emphasis added):
“38Pursuant to Order 31B r 10(1)(b) of the Family Law Rules, an application for a declaration pursuant to s 107(1) of the Child Support (Assessment) Act 1989, must be filed within 28 days after receipt by the applicant of a notice given under sub-section 98ZC(2) of that Act, or within such further time as the Court allows. It is not in dispute that the husband’s application for a declaration is substantially out of time, although I am not certain to what extent.
39Where the parentage of a child is disputed, the applicant may rely on the relevant provision of the Family Law Act 1975. Section 69W, sub-paragraph (i), of the Family Law Act provides:-
‘If the parentage of a child is a question in issue under this Act, the court may make an order (a parentage testing order) requiring a parentage testing procedure to be carried out…’
40The wife’s position, in summary, was that the issue was the subject of res judicata, having already been determined by Ms Andrews SM and Penny J, but, in any event, there was no explanation for the delay in bringing the application, and there was no evidence properly putting the parentage of the children in issue.
41As to the issue of res judicata, while Ms Andrews SM and Penny J were not prepared to make orders for parentage testing (Penny J on an application for leave to appeal out of time), their determinations were in the context of proceedings for parenting orders and were based, to a considerable extent, on the best interests of the children. However, the fact that the husband had adduced little, if any, evidence in support of his claim was considered relevant. In very different circumstances, there is authority for the proposition that in relation to paternity, although there has been a previous determination, parentage testing may still be ordered (JFL v TP (1999) FLC 92-870). While it is certainly arguable that res judicata applies in the present case, I am not prepared to base my determination on this.
42Of more significance is the fact that the husband has adduced no reasonable explanation for delay in commencing the present proceedings, over two years after dismissal of the appeal before Penny J. The husband’s explanation was that child support had only become an issue once more when he received a recent assessment as, for various reasons, he has not formally been required to pay child support for some time, and he had hoped to resolve the matter by agreement. The wife’s position is that she does not seek, or expect to receive, child support from the husband in any event.
43As to whether there would substantial injustice to the husband if leave was not granted, I do not accept that this is the case. In fact, there is no cogent evidence putting in issue the paternity of the children, apart from the husband harbouring doubts. An order for parentage testing should not be made simply to satisfy one parent’s personal doubts concerning a child’s parentage (see Diggins and Diggins (1992) FLC 92-299 and Duroux v Martin (1993) FLC 92-432. In the latter case, the Full Court, at p 80,407, referred, with approval, to the trial Judge’s statement:-
‘I cannot envisage a situation where the Court will order parentage testing merely because it is requested to do so. In my view an applicant must have an honest, bona fide and reasonable belief as to the doubt. An objective test is not to be applied, for the evidence in such applications is seldom (if ever) sufficient to enable the Court to come to any objective conclusion, and if it were, parentage testing orders would not be necessary, but the Court will objectively assess the circumstances giving rise to the applicant’s belief.’
44In the present case, the husband does not adduce any evidence at all challenging his paternity of W and, indeed, in his closing submissions said he thought that W was his son. As to N, the only evidence is a calculation provided by the husband putting the possible date of conception at a time when he was not having sexual intercourse with the mother over a period of weeks. There is no medical or other evidence to support this calculation, although I am prepared to take judicial notice of 280 days as being the usual period of gestation. Since this is the only evidence, apart from the husband’s doubts, putting the parentage of N in issue, and the presumption of parentage otherwise applies, I am not prepared to accept that the applicant has made out a prima facie case for parentage testing to occur. The applicant made much of [doctor’s] recommendation in this regard, but I do not accept that it is sufficient reason for parentage testing to be conducted, that the husband has, in [doctor’s] terms, become paranoid in relation to the issue. Any uncertainty in the children’s minds as to their parentage is because of the husband’s actions, and I do not accept provides any basis for the relief sought by him.
45Although it is a matter of great sadness that the husband has allowed his attitude in this matter to affect his relationship with, at the least, the child N. Although it is obvious that the matter could readily be resolved by, what is now, a very simple procedure, having regard to the husband’s behaviour, the wife’s attitude in this regard is most understandable.
46I am therefore not prepared to exercise my discretion to extend the time for filing of the husband’s application, and the application will therefore be dismissed.”
Discussion
A person who has the care of a child is entitled, in certain circumstances, to apply for an administrative assessment of child support to be paid by a parent of the child. Usually such an application is made by one parent seeking child support payments from the other parent.
In this case the wife applied for an assessment of child support payable by the husband in respect of W and N in about December 1995.
Section 34 of the Child Support (Assessment) Act provides that if the Child Support Registrar accepts an application for administrative assessment of child support the Registrar must immediately notify the person from whom the application sought payment of child support. The notification includes a notice that if the person from whom child support is sought is aggrieved by the decision, he or she may apply to a court having jurisdiction under the Child Support (Assessment) Act for a declaration under s 107 that the applicant was not entitled to administrative assessment of child support for the child payable by the person.
As at January 1996, when the child support assessment first issued, the relevant time limit for an application under s 107 of the Child Support (Assessment) Act was governed by the provisions of Order 31B rule 10 of the Family Law Rules, which then read:
“An application under sub-section…107(1) of the Assessment Act shall be filed
(a)not later than one month after the receipt by the applicant of the notice given under section…34; or
(b)within such further time as the court allows.”
Section 102 of the Child Support (Assessment) Act provides that an appeal lies from a decree of the Family Court of a State “with the leave of a Full Court of the Family Court, to a Full Court”.
Leave to appeal
The principles to be applied in determining whether or not to grant leave were discussed by the Full Court in Hendy v Deputy Child Support Registrar (2001) 27 Fam LR 641. We propose to apply them in this case. The Full Court said at 648-9:
39. An appeal from a single judge of the Family Court exercising jurisdiction under the Child Support (Assessment) Act 1989 lies only with the leave of the Full Court (s 102).
…
40. The circumstances in which leave to appeal is required frequently presents itself to the Court when dealing with interlocutory orders. In Rutherford v Rutherford (1991) FLC 92-255; 15 Fam LR 1 the Full Court discussed when leave might be granted in such cases. Their Honours followed the High Court decision in Adam P. Brown Male Fashions Pty Ltd v. Philip Morris Inc (1981) 148 CLR 170 at 177, where the High Court observed in relation to appeals from interlocutory orders that there needs to be an error of principle and/or a substantive injustice demonstrated. The issue as to whether it was necessary to show both was left undecided.
41. In Bassingthwaite v Leane (1993) FLC 92-410; 16 Fam LR 918 the Full Court, when dealing with a child support matter, said at FLC 80,198:
‘The order appealed from is not an order of practice and procedure but a substantive order. For this reason we consider that perhaps the principles enunciated in Rutherford may be too restrictive for appeals against substantive orders made under the child support legislation.’
42. Then in Gilmour v Gilmour (1995) FLC 92-591; 18 Fam LR 646 a differently constituted Full Court said at FLC 81,843 :
‘…in granting leave for the reasons which we have in this case, we would not want to be taken as saying that the grounds upon which leave to appeal an order made under either of the Child Support Acts are necessarily the same as the limited grounds upon which leave will be granted in respect of an interlocutory decree under Section 94AA of the Family Law Act. Indeed, we would endorse the suggestions made in Bassingthwaite and Best that a less restrictive approach may be necessary where the order sought to be appealed involves substantive rights or liabilities in relation to child support. In so doing we would, however, draw attention to the unreported decision of Conn v Martusevicius (delivered in Melbourne on 9 June 1992) in which, in dismissing an application for leave to appeal pursuant to s 102 of the Assessment Act, both Barblett DCJ and Nygh J in separate judgments expressed the view that the same principles which apply to applications for leave to appeal under Section 94AA of the Family Law Act (being the principles stated in Rutherford) should apply to applications for leave to appeal under Section 102 of the Assessment Act.’
43 Finally in Wild v Ballard (1997) FLC 92-771; 22 Fam LR 291 the Full Court said at FLC 84,488 (citations omitted):
‘As already indicated s 102 of the Child Support (Assessment) Act provides that an appeal from a single judge of the court exercising jurisdiction under that Act lies only with the leave of the Full Court. In Gilmour and Gilmour the Full Court (Ellis, Finn and Maxwell JJ) endorsed suggestions made in both Bassingthwaite v Leane and Best and Best that leave applications under this legislation ought be approached less restrictively than were this an application from an interlocutory order. The court said that if a party’s substantive rights have been significantly affected by an error at first instance, then it would be appropriate to grant leave to appeal under the section. It is appropriate then to examine whether the appellant has had his substantive rights significantly affected by any error of principle made by the trial judge.’
44. We shall approach our task of determining whether to grant leave bearing in mind that we should not be too restrictive if we perceive there has been any error of principle which has affected the applicant's substantive rights.”
Extending time
The principles to be applied in determining an application for an extension of time are fairly well settled. Whilst there is a broad discretion, the fundamental issue is whether an extension of time will enable the court to do justice between the parties. This is normally shown by the applicant demonstrating that there are adequate reasons which explain the delay, that there is a substantial issue to be raised on the hearing of the application, and that no hardship or injustice will be caused to the respondent which cannot be compensated by orders as to costs or otherwise (see McMahon and McMahon (1976) FLC 90-038; 1 Fam LR 11.260 at FLC 75,144; Fam LR 11,261, and Tormsen v Tormsen (1993) FLC 92-392; 18 Fam LR 232 at FLC 80,017; Fam LR 234).
In this case, the application to extend time was filed almost six years out of time. The husband’s explanation of the delay contained in his affidavit in support was:
“I have not taken any action before this date to set aside the assessment [which was first issued on 22 January 1996] because I have at all times preferred to persuade the wife to agree to DNA paternity testing voluntarily…”
Even if there was a skerrick of merit in that explanation, given the extended route taken in the earlier proceedings relating to the issue of parentage testing, one would have thought that reason would have well expired when the wife’s resistance to the first application under the Family Law Act became apparent as early as October 1998. We would agree with her Honour’s findings that there were no reasonable explanation for the delay, especially any delay after Penny J indicated that she would not make any similar order in the Family Law Act proceedings.
As to the second leg of an application for extension of time, namely whether there was any substantial issue to be argued, we note the following:
Martin J pointed out that there was no material referred to in any of the submissions that would raise the slightest basis upon which it could properly be said that the husband was not the father of the elder child.
In so far as the parentage of the younger child was concerned, the common evidence of the parties is that the child was born during the course of the marriage. The parties had sexual intercourse on a weekend in March 1988, which the husband fixes as the weekend of 19 March 1988. The child was born on 2 December 1988, 258 days after a date where on the husband’s own admission the parties had sexual intercourse. The wife’s evidence was that she had had no sexual intercourse with any other man around the time of conception. Her Honour made reference to the normal period of human gestation being 280 days. Such period of gestation is normally measured from time of last monthly period to parturition. The average period from conception to parturition would be seen to be somewhat less (see per Lindenmayer J in ReG v H (1992) FLC 92-317; 15 Fam LR 731 at FLC 79,396; Fam LR 733). To the extent that the Full Court in Duroux and Martin (1993) FLC 92-432; 17 Fam LR 130 at FLC 80,403; Fam LR 131commented that the period of 266 days referred to by Bell J as the trial Judge in that case as standard or normal was “somewhat unusual” and made reference to tables of gestation usually based on 280 days, it may be that the Full Court in Duroux and Martin were confusing the tables which were calculated on the basis of last monthly period with a calculation made on the likely date of conception. In those circumstances, if ovulation occurs in the midst of a 28 day cycle then there is no inconsistency at all between the calculation of Bell J and the calculation relied upon by the Full Court in Duroux and Martin. In any event, the child born 258 days after intercourse is clearly born within a period of normal gestation.
The only other evidence relating to the gestation of this particular child is an assertion by the husband that the labour was induced as the child was some ten days post-term. There was no expert opinion evidence led by the husband from any medical practitioner or paediatrician endeavouring to provide an estimate as to the likely date of conception based upon the development of the child at birth.
The husband submits that the Full Court has clearly indicated in Tobin and Tobin (1999) FLC 92-848; 24 Fam LR 635 that 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 or is an adoptive parent or is deemed to be a parent because of the carrying out of an artificial conception procedure. He asserts 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”.
The issue in Tobin’s case was whether the foster mother of a child could obtain an order for child maintenance or child support against her husband who was not the biological father of the child. In that context the court stated that there was no power under the Child Support (Assessment) Act for a court to require the payment of child support by a person other than a natural parent of a child, an adoptive parent or a person deemed to be a parent because of an artificial conception procedure. A foster parent of a child could not be held liable.
Nothing in Tobin’s case was intended to lay down a principle that absent clear proof of biological parentage, no child support assessment could issue. Indeed, the statutory provisions are entirely to the contrary.
The Registrar may be satisfied that a person is the parent of a child if the Registrar is satisfied the person was a party to a marriage and the child was born during the marriage (s 29(2)(a)). This is a restatement of the common law principle of the presumption of legitimacy. It is, of course, only a presumption, and may, in an appropriate case, be rebutted by contrary testimony. A properly conducted DNA test that clearly demonstrated that the husband of a woman who bore a child during the course of their marriage could not be the biological father of the child would normally be ample evidence to rebut such a presumption.
The issue that had confronted Andrews SM and Penny J in the family law proceedings was, to some degree a similar issue to that confronting Martin J. That issue was whether there was any appropriate basis for ordering the taking of a parentage test under s 69W of the Family Law Act. That section grants the court a discretion to make an order for a parentage testing procedure to be carried out if the parentage of a child is in question in proceedings under the Act.
In Duroux and Martin at 131 the Full Court (cor Ellis, Finn and Joske JJ) adopted a formulation of Bell J in respect of when the Court might exercise its discretion under s 69W. Bell J had said:
“I cannot envisage a situation where the Court will order parentage testing merely because it is requested to do so. In my view an applicant must have an honest, bona fide and reasonable belief as to the doubt. An objective test is not to be applied, for the evidence in such applications is seldom (if ever) sufficient to enable a court to come to any objective conclusion, and if it were, parentage testing orders would not be necessary, that the Court would objectively assess the circumstances giving rise to the applicant’s belief.”
In the circumstances of this case it was asserted by the wife, and accepted by Martin J, that the applicant husband could not have had either a bona fide or reasonable belief that he was anything other than the father of the children.
Conclusion
The application before us seeks leave to appeal against the exercise of a discretion refusing the extension of time. As we can perceive no error on behalf of the trial Judge in her consideration of the relevant matters or in her application of the law, the application must fail. Her Honour has correctly identified all relevant considerations and has reached what we perceive to be clearly the correct outcome. She has exercised her discretion in a manner which was not only available to her but was clearly correct.
In these circumstances the order of the Court will be that the application for leave to appeal is dismissed. We further order that the respondent file any submissions that she wishes to make in respect of the costs of this application in writing within 14 days and that the applicant have a further 14 days within which to respond to those submissions.
I certify that the 31 preceding
paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.
Elizabeth Hore
Associate
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