SACHS & BEAUMAN
[2009] FMCAfam 11
•12 January 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SACHS & BEAUMAN | [2009] FMCAfam 11 |
| CHILD SUPPORT – Application for a declaration under Section 106A(2) of the Child Support (Assessment) Act 1986. |
| Child Support (Assessment) Act 1986, ss.106A, 30, 29, 7A Federal Magistrates Court Rules 2001, rr.25A, 3 |
| Applicant: | MS SACHS |
| Respondent: | MR BEAUMAN |
| File Number: | DNC 199 of 2008 |
| Judgment of: | Terry FM |
| Hearing date: | 10 December 2008 |
| Date of Last Submission: | 10 December 2008 |
| Delivered at: | Darwin |
| Delivered on: | 12 January 2009 |
REPRESENTATION
| The Applicant | In person |
| Solicitors for the Respondent: | Clement & Co |
| Counsel for the Respondent: | Mr Raphael |
ORDERS
That the time for the mother to file an application for a declaration under Section 106A(2) of the Child Support (Assessment) Act 1986 is extended to 14 May 2008.
That the mother’s application for a declaration under Section 106A(2) of the Child Support (Assessment) Act 1986 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Sachs & Beauman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNC 199 of 2008
| MS SACHS |
Applicant
And
| MR BEAUMAN |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Sachs has applied to the court under Section 106A(2) of the Child Support (Assessment) Act 1986 for a declaration that Mr Beauman should be assessed in respect of the costs of her son [X], because he is [X]’s father.
Mr Beauman admits that he is [X]’s father. In the unusual circumstances of this case however, he opposes the court making a declaration under Section 106A(2).
Background
The mother and father had a six month relationship in 2004. In June 2006 they recommenced their relationship, but they separated again in December 2006. At the time of separation the mother was about two months pregnant with [X].
When [X] was born in 2007, the mother did not immediately tell the father about [X]’s birth. She recorded the father as “Unknown” on the child’s birth certificate. I accept that the mother had no other course open to her in the absence of the father’s consent to being named on the birth certificate.
On 2 September 2007 the mother applied to the Child Support Agency for an administrative assessment of child support, naming the father as the parent from whom she sought an assessment.
Section 30 of the Child Support (Assessment) Act 1986 provides that:
“(1)If the Registrar is satisfied that an application has been properly made for administrative assessment of child support for a child, the Registrar must accept it.
(2)If the Registrar is not so satisfied, the Registrar may refuse to accept the application.”
The Registrar refused to accept the mother’s application, on the basis that he could not be satisfied pursuant to any of the criteria in Section 29(2) of the Act that the father was indeed [X]’s father.
The mother sought legal advice. Her solicitors contacted the father, who agreed to take part in a paternity test.
The paternity test established the father’s paternity of [X]. On 1 February 2008, the father signed a statutory declaration stating that he was [X]’s father. This satisfied Section 29(2)(d) of the Act, and the Registrar accepted the mother’s application for an assessment of child support. Later in February 2008 the father was assessed to pay child support for [X].
In accordance with the provisions of Section 7A(2) of the Act, the father’s child support liability commenced on the day the Registrar accepted the mother’s application. I was not provided with a copy of the assessment, but it was common ground that the application was accepted in February 2008 and that the father’s child support liability commenced on a day in February 2008.
The mother’s application for a Section 106A(2) declaration
The mother is aggrieved that the father was not required to pay effective from 2 September 2007, when she first made her application.
On 14 May 2008, the mother filed an application for a declaration under Section 106A(2) of the Act.
Pursuant to Rule 25A .06 of the Federal Magistrates Court Rules 2001 such an application is required to be filed within 56 days of service of the notice refusing the request for an assessment. The mother’s application was filed considerably out of time. The mother sought an extension of time in which to file her application. The father did not formally oppose the granting of such an extension, and pursuant to Rule 3.05 of the Federal Magistrates Court Rules 2001 I intend to grant the mother an extension of time.
The provisions of Section 106A relevant to the mother’s application are as follows:
(1) This section applies if:
(a) the Registrar refuses to accept from an applicant an application for administrative assessment of child support for a child under subsection 30(2); and
(b) one of the reasons for the Registrar so refusing was that the Registrar was not satisfied under section 29 that a person who was to be assessed in respect of the costs of the child is a parent of the child.
(2) An application may be made to a court having jurisdiction under this Act for a declaration that:
(a) if the reason referred to in paragraph (1)(b) was the only reason for the Registrar refusing to accept the application--a person should be assessed in respect of the costs of the child because the person is a parent of the child; and
(b) if the reason referred to in paragraph (1)(b) was one of the reasons for the Registrar refusing to accept the application--the Registrar should reconsider the application under Division 2 of Part 4 because a person who was to be assessed in respect of the costs of the child is a parent of the child
(6) If the court grants the declaration:
(a) if the reason referred to in paragraph (1)(b) was the only reason for the Registrar refusing to accept the application--the Registrar is taken to have accepted the application for administrative assessment of child support; and
(b)if the reason referred to in paragraph (1)(b) was one of the reasons for the Registrar refusing to accept the application--the Registrar must reconsider the application under Division 2 of Part 4”
It was effectively the mother’s case that if the court made a declaration of paternity under Section 106A(2), the Registrar would be taken to have accepted her application for child support on 2 September 2007 when it was first lodged, and that therefore she would be entitled to an assessment of child support for [X] from that day. The father earns a good income, and the mother estimated that she had missed out on child support in the sum of about $5,700.00 by the fact that the assessment did not commence until February 2008.
Not unsurprisingly, the father opposed the application. It was his case that he was unaware that the mother had made an application to the Child Support Agency on 2 September 2007, and that he had never sought to evade his child support liability. He said that he had consented to paternity testing when asked to do so, and had co-operated by signing the statutory declaration once the paternity testing results were received.
Discussion
I am not persuaded that I should make the declaration sought by the mother.
Section 106A is a facilitative provision. It is intended to provide a remedy where the Registrar refuses to accept an application because none of the provisions of Section 29 of the Act, which allow the Registrar to be satisfied that a person is a parent of a child, apply.
By the time the mother filed her application in this court on 14 May 2008 for a Section 106A(2) declaration, she did not need one. The Registrar had by then accepted the mother’s application. In my view the mother cannot have recourse to Section 106A in those circumstances.
The situation whereby the mother’s application would have been taken to have been accepted on 2 September 2007 if a declaration was made under Section 106A of the Act, but was taken to have been accepted only when re-submitted in February 2008 with the father’s statutory declaration, seems anomalous.
I have some sympathy with the mother, who no doubt could well use the additional money. However the mother is not entirely without responsibility for the way the situation unfolded. She did not contact the father immediately after [X]’s birth or ask him to allow his name to be placed on the child’s birth certificate. There was no evidence that the father has engineered the situation whereby the assessment only commenced in February 2008 and I do not accept that he generally attempted to evade his child support obligations.
The mother’s application for a Section 106A(2) declaration must be dismissed.
In her application filed on 14 May 2008 the mother also sought a declaration of paternity pursuant to Section 69VA of the Family Law Act 1975. This application remains on foot. If the mother or father still wish that declaration to be made, this can be raised when the matter is next before the court on 3 March 2009 in respect of parenting issues.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Terry FM
Date: 12 January 2009
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