Riggs & Camm
[2023] FedCFamC2F 1266
•21 September 2023`
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Riggs & Camm [2023] FedCFamC2F 1266
File number: MLC 4606 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 21 September 2023` Catchwords: FAMILY LAW – mother seek declaration of parentage – whether to proceed in the absence of a party – evidence of service vague and opaque – father informed of pregnancy, birth and DNA testing and responded – father never denied parentage – service dispensed with – evidence of a grandparent’s DNA Legislation: Child Support Assessment Act 1989 (Cth)
Family Law Act 1975 (Cth) s 69VA
Division: Division 2 Family Law Number of paragraphs: 37 Date of hearing: 21 September 2023 Place: Melbourne Counsel for the Applicant: Mr K. Ryan Solicitor for the Applicant: Victoria Legal Aid The Respondent: No appearance ORDERS
MLC 4606 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RIGGS
Applicant
AND: MR CAMM
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
21 SEPTEMBER 2023`
Amended pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
THE COURT DECLARES THAT:
1.Pursuant to section 69VA of the Family Law Act 1975 (Cth) it is declared that MR CAMM (“the Father”) is the FATHER of the child X born in 2022.
THE COURT ORDERS THAT:
2.Pursuant to s.106A(5)(a) of the Child Support (Assessment) Act 1989, there be a declaration that MS RIGGS (“the Mother”) is entitled to administrative assessment of child support for the child X because MR CAMM is a parent of the child.
3.The service on the Father of the Mother’s application and evidence be and is dispensed with.
4.The Mother do all acts and things to bring a copy of these orders to the attention of the Father via the assistance of Services Australia (Child Support Registrar).
AND THE COURT NOTES THAT:
A.Pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the Court may vary or set aside a judgment or order made in the absence of a party.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations and passages of authorities, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
Introduction
I have before me an application seeking a declaration as to the parentage of X, born in 2022 (‘the child’), and a declaration for the purpose of the Child Support Assessment Act (1989) that the child's mother, Ms Riggs (‘the Mother’) is entitled to administrative assessment of child support.
Background
The context to the application is that the Mother is dependent upon Centrelink benefits and Centrelink requires her to collect child support for the child. Hence, it is not a matter of choice for the Mother. She must pursue child support if she is to receive Centrelink benefits. That circumstance may or may not be known to the alleged father of the child, Mr Camm (‘the Respondent’).
The background to the application is that the Mother and the Respondent commenced a relationship in around 2021. The Mother and the Respondent had sexual intercourse in 2021 and, later, not long after that intercourse, the Mother suspected she was pregnant and confirmed same by a pregnancy test. She deposes, and I accept, that she did not have sexual intercourse with anyone other than the Respondent at any time proximate to the conception of the child. On the evidence of the Mother, there is no possibility of anyone other than the Respondent being the father of the child.
As long ago as 2021, the Mother told the Respondent that she was pregnant. He told her that it was up to her whether she had the baby, but he did not agree with the idea of a child. The Respondent has not ever spent any time with the child.
Whether to proceed in the absence of the Respondent
I now turn to the issue of whether it is appropriate to proceed in the absence of the Respondent. He did not appear in the proceedings today and has not filed any material or participated in the proceedings at all. The Mother is not aware of the address of the Respondent, or where he is living. She has been told that he was imprisoned, and she infers that this was interstate.
The Mother issued proceedings on 3 May 2023, with the matter returning to Court on 27 June 2023. Before the first return date, on 16 May 2023 in chambers, a Judicial Registrar determined that pursuant to rule 2.34 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ("The Rules") the Respondent be served in lieu of personal service with the documents, by:
Sending a copy of the documents by way of the documents being forwarded to the Respondent care of Services Australia (Child Support) at […] with a letter enclosed to Services Australia (Child Support) requesting that the said documents be forwarded to the Respondent at the last address last recorded by them, or any other agency of the Commonwealth, State or Territory.
The Judicial Registrar also ordered that service of the documents be deemed to have been effected two days after the applicant has complied with that order. The matter was adjourned for hearing to 17 July 2023.
The sensible letter
Prior to the issue of proceedings, the Mother's solicitor had attempted to send to the Respondent a sensible and commonsense letter that is in evidence annexed to the Mother's affidavit, dated 20 February 2023. That letter included the following:
You should get legal advice about this case. The steps that you need to take depend upon which of these options below that you choose.
Your options to resolve this case.
1. You agree that you are the Father
CS will accept a Statutory Declaration signed by you saying that you are the father.
Please sign the Statutory Declaration form in front of an authorised witness. The authorised witnesses are listed on the back of the form. Once completed, return the witnessed Statutory Declaration to me by return email or take a photo of each page and email to me at [solicitor’s email address].
2. You and the child have a NATA Accredited DNA test
Victoria Legal aid (VLA) Can arrange a DNA test at a cost of $500.00. My client will agree to a DNA test on this basis:
a. If you are on a Centrelink benefit, then VLA will pay for the DNA test but you must first provide me written proof that you get a benefit.
b.If you are not on a Centrelink benefit, then VLA will initially pay for the DNA test on condition that you refund VLA $500.00 within 14 days IF the test results prove you are the father. You are to sign and return to us the enclosed form by email or by written email confirmation saying that you agree to this arrangement. If you wish to discuss, please call me on [solicitor’s phone number].
c. Once the above steps are complete, I will contact the DNA testing laboratory about the test. The laboratory will then make arrangements directly with you for the test.
d. If the DNA test results prove you are NOT the father, then the case will end. VLA will seek no payment from you for the cost of the DNA test.
e. If the DNA test results show that you ARE the father, then you will sign a declaration saying that you are the father within 14 days.
3. You do not respond or refuse a DNA test
My client will have no choice but to start a court case for a declaration that you are the father. My client will also seek a court order that you pay her legal costs of about $2,448.00. This is an option of last resort that I hope we can avoid.
Please tell me which of the above three options you choose by [early] 2023. After this date my client will have no choice but to go ahead with option three.
An affidavit of service was affirmed by a person on behalf of the Child Support Registrar. That affidavit deposed that on 21 February 2023, the sensible letter, recited above, had been posted to the Respondent at "last known address".
These proceedings
On 17 July 2023, it was ordered that the matter be adjourned to 14 August 2023, and in the meantime, the Respondent was to file and serve a response to the Mother's application, an affidavit and a notice of address of service, and it was ordered that he appear or be legally represented on the adjourned date. It was also noted that the Respondent had been served by way of a substituted service of the order of 16 May 2023.
The solicitors for the Mother had filed an affidavit of service on behalf of the Child Support Registrar by Ms B on 27 June 2023, which deposed that, on 21 June 2023, the orders of 16 May 2023 had been served by being posted to the Respondent at "his last known address". After the court appearance on 17 July 2023, an affidavit of service was filed on 1 August 2023, where Ms B was deposed to serving the orders of 17 July 2023 on the Respondent by posting them to "his last known address".
On 22 August 2023, the matter was again before the Judicial Registrar, and there was no appearance on behalf of the Respondent. On that day, the matter was again adjourned, but this time to me on 21 September 2023, and the Judicial Registrar requested that notification of the date for the hearing be served in accordance with the order for substituted service made on 17 July 2023.
On 4 September 2023, a further affidavit of service was filed, again posted by Ms B, whereby it was deposed that on 30 August 2023 the orders of 22 August 2023, and a letter to the respondent from Victoria Legal Aid, dated 29 August 2023, were posted to the Respondent at “his last known address”.
On 18 September 2023, another affidavit of service was filed, again deposed to by Ms B. That affidavit deposed that, on 14 September 2023, a letter dated 13 September 2023 was posted to the Respondent, again "at his last known address", that enclosed correspondence from this court, dated 8 September 2023.
On 20 September 2023, another affidavit of service was filed, whereby Ms B deposed that on 15 September 2023, a letter to the Respondent dated 13 September 2023 was posted to him at "his last known address" enclosing an outline of case filed 13 September 2023.
When the matter came before me, I raised with counsel who appeared for the Mother the vagueness and, to my mind, unsatisfactory nature of the affidavits of service. In this day and age, where the volume of mail by post is but a fraction of what it once was, few people of the Respondent’s demographic correspond by mail. I would be surprised if the Respondent has ever written a letter to anyone or received one. I was also told by counsel that, doing the best she could, the Mother understood that, at some point in the recent past, the Respondent had been imprisoned, and she inferred interstate. It troubled me that the only evidence I have of service was a statement that documents had been posted to “the last known address”, and that is the address last known to Child Support Services, when it may well have been that the Respondent was in prison. I had no information before me about the basis on which or how or what information had been accessed, and whether the “last known address” was reliable or not.
I stood the matter down and invited counsel to have his instructing solicitor make inquiries. Those inquires, though made bona fide, had their own difficulties. Based upon what I was told, it transpires that the person within the Child Support Services who actually organises the service of documents and, I infer, the obtaining of information as to the last known address, was not available to speak to the inquiring solicitor. Additionally, it was not the practice for that person to ever speak to an inquiring solicitor, and that person liaised with another person, who passed on to the solicitor the information that had been provided by the person, whom it was said, organises that service.
As told to me by counsel from the Bar table, and I accept that is an accurate account, the instructing solicitor was told that the addresses to which the various items were sent could not be made available to me and that I am not to be told the address or where the documents were sent. I note, not even interstate, or in the Commonwealth of Australia.
Some information was disclosed. The solicitor was told that the address to which the letter of 21 February 2023 was sent was a prison interstate. I do not know which prison. The solicitor was told that the "last known address" of each of the other affidavits of service were an actual residential address interstate.
The affidavits of service do not provide any information about whether or not the documents sent were returned. It may be that they were. The presumption of regularity would ordinarily mean that if the documents were returned, some note of that would be contained in the affidavit of service. The difficulty with applying that presumption to such a concept, given the nature of the affidavits of service that I have, is that the affidavits of service are a standard, one-size-fits-all, tick-a-box affidavit, where some boxes are filled in with handwriting. There is no place in the standard affidavit to recite whether or not documents posted or emailed have been returned. Nonetheless, I am reasonably satisfied that, had the documents been returned, some effort would have been made for the deponent of the affidavit of service, Ms B, to be alerted to that fact. I am reasonably comfortable in finding that she would have alerted the Court to that in any of the affidavits of service.
Nonetheless, I am troubled at the vagueness of the detail. The declaration of parentage is a serious matter. This will affect the child for the rest of her life. This will affect the child's mother and the Respondent, if I am satisfied that he is the father.
In all of those circumstances, the substituted service evidence that I have is simply too vague, too opaque, and too flimsy for me to be satisfied that it is a proper basis to proceed on such a serious matter. Had it been service of a notice about a parking ticket, I may well have been satisfied that that was sufficient.
Advice to the Respondent of pregnancy and birth
In this matter, I took further oral evidence from the Mother this day. She was able to read out to me messages exchanged between her and the Respondent by way of social media. The first message was mid-2022, when the mother said to the Respondent, "And for a DNA test, I actually need your DNA." The Respondent responded, "Because I don't care until I have DNA test results proving she is mine. You told my mother you (didn't) want one." As I will discuss when I come to the issue of determining parentage, the Mother, for her own personal reasons, and largely for the comfort and satisfaction of the child's maternal grandmother, determined that she would undertake DNA testing in cooperation with the Respondent's mother, Ms C.
The Mother told me, and I accept, that she had posted on social media a photograph of the baby and "tagged" the Respondent into that "post". Following this, she was contacted by a woman who said she was the Respondent's mother.
Eventually, the two women communicated in a sensible fashion, and they agreed to cooperate in DNA testing. They undertook the saliva swabbing necessary for the tests in the company of each other and between them paid for the testing, sent it off to the laboratory, and received the results. It is those results that the Mother received in an email, and she then "screenshotted" the key observations of the DNA testing service. That test purports to show that, "There is very strong evidence that … [Ms C] is the grandparent of … [the child]." In terms of the likelihood ratio, a score or result of more than 1001 is recorded as "very strong" and is the highest degree of likelihood or probability tested by the DNA testing facility. The score, or ratio, described in the test is 6808, which more than comfortably exceeds the threshold of "very strong", described as the strength of the relationship of more than 1001.
The Mother provided that test by social media communication to the Respondent, and said, "There is the proof. She's yours." The Respondent responded with a smiley face. That last communication from the Respondent, the smiley face, was in late 2022. Doing the best she can, it is the Mother’s opinion that thereafter she was "blocked" from accessing that account, or, she says, the only other alternative is that the Respondent has another account or none at all.
The Mother told me, and I accept, how she ascertained that Ms C is, in fact, the mother of the Respondent. She attended Ms C’s home, where she was shown and able to view a range of photographs which included childhood photographs of the Respondent, and photographs later on that demonstrated the maturing child. She told me, and I accept, that she recognised the Respondent from the photographs shown in Ms C's house. Hence, I am satisfied that Ms C is the mother of the Respondent.
That being so, it follows that the DNA testing demonstrates that the Respondent is the father of the child. I place some weight on that DNA testing. However, the matter that I place the most weight on, and that comfortably satisfies me of the Respondent’s parentage of the child, is the Mother's evidence that she did not have sexual intercourse with anyone other than the Respondent at the time relevant to or proximate to the conception of the child. I place some weight on the circumstance that, from the earliest point, the Mother advised the Respondent that he was the father, and that he has never disputed the same.
Whether to dispense with service
I am satisfied that it is in the interest of justice that, rather than rely upon unsatisfactory proof as to substituted service, that I dispense with service altogether. That is appropriate in the circumstances where:
·the Respondent has been alerted that he is the father of the child;
·He has chosen not to dispute that he is the father of the child;
·He has been provided with DNA testing evidence that he is the father of the child; and
·following the same, he has either "blocked" the Mother from the only means of communication that she had with him, or changed or ceased his account without informing her.
The Mother says, and I accept, that she is not aware of the Respondent's mobile phone number, or where he lives.
The Mother has some continuing communication with the Respondent's mother, Ms C, that is the paternal grandmother, and Ms C spends some time with the child. It appears to the Mother, and I accept her evidence, that the relationship between Ms C and her son, the Respondent, is tenuous, or at least difficult in relation to the issue of Ms C communicating with the Mother about the child. In those circumstances, I do not consider it appropriate to place the burden on Ms C to communicate or further alert the Respondent to these proceedings.
Hence, I am satisfied it is appropriate and in the interests of justice to proceed with this hearing in the absence of the Respondent. I will order that service be dispensed with and I will also make a usual notation about notice to the Respondent of the relevant rule about a right to seek to change an order where it has been made in your absence.
Whether to make the orders sought
I am satisfied that, whether or not the Respondent is aware of these proceedings, it is appropriate that I make the declarations sought by the mother.
The mother, in effect, the Legal Aid Commission of Victoria, had sought a reasonable lump sum fee in the sum of $2448 on account of costs. Were I able to be satisfied that Mr Camm had in fact received the sensible and reasonable letter of 20 February 2023, recited above, and absent any good reason to the contrary, I would be satisfied that such a costs order should be made. Because of my circumspection about whether or not the Respondent ever received the reasonable and sensible letter of 20 February 2023, and because I infer he, having apparently been recently released from prison, may not be in advantageous financial circumstances, that it is not appropriate or just or in the interests of justice that I order costs against the Respondent.
Notwithstanding my circumspection about whether any documents have actually ever reached the Respondent, and given that the only access the Mother has is via Services Australia (Child Support), I will order that the Mother do all acts and things to bring these orders to the attention of the Respondent, including via the assistance of Services Australia (Child Support).
Those are my reasons.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 2 October 2023
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