SAVILLE & REEVES

[2015] FCCA 287

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAVILLE & REEVES [2015] FCCA 287

Catchwords:
CHILD SUPPORT – Declaration that respondent should be assessed in relation to costs of the applicant’s child – where respondent did not attend Court on hearing of application.

FAMILY LAW – Children – paternity – declaration that respondent is the father of the applicant’s child – where respondent did not attend Court – where respondent did not file a Response or affidavit.

PRACTICE AND PROCEDURE – Leave – application for leave to proceed out of time.

Legislation:

Child Support (Assessment) Act 1989 (Cth), ss.29, 30, 33, 106A

Family Law Act 1975 (Cth), ss.69V, 69VA
Federal Circuit Court Rules 2001, rr.3.05, 25A.06

Applicant: MS SAVILLE

Respondent: MR REEVES

File Number: SYC 6988 of 2014

Judgment of: Judge Scarlett

Hearing date: 9 February 2015

Date of Last Submission: 9 February 2015

Delivered at: Sydney

Delivered on: 9 February 2015

REPRESENTATION

Solicitor for the Applicant: Ms Cole

Solicitors for the Applicant: Legal Aid NSW

Respondent: No appearance

ORDERS

1. The Applicant is granted leave to proceed ex parte.

2. The time for filing this Application for a declaration under section 106A of the Child Support (Assessment) 1989 is extended to 6 November 2014.

3. It is declared in accordance with section 69VA of the Family Law Act 1975 that the Respondent MR REEVES is the father of the child [X] born on [omitted] 2013.

4. It is declared in accordance with section 106A of the Child Support (Assessment) Act 1989 that the Respondent MR REEVES should be assessed in relation to the costs of the child [X] born on [omitted] 2013 because MR REEVES is a parent of the child.

IT IS NOTED that publication of this judgment under the pseudonym Saville & Reeves is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6988 of 2014

MS SAVILLE

Applicant

And

MR REEVES

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Mother of a little girl called [X] for declarations that the Respondent is [X]’s father and that he should be liable for an assessment of child support for her. [X] was born on [omitted] 2013 and lives with her mother.

2. The Applicant also applies for leave to commence proceedings out of time.

Service

1. The Applicant has filed an Affidavit of Service, showing that the Respondent was served with the documents on 23^rd November 2014. He has not filed a Response or an affidavit. He did not attend Court.

Procedural History

1. The Application was filed on 6^th November 2014, returnable today. The Applicant has attended Court, accompanied by her solicitor. The Respondent has not attended Court or sent any message indicating that he has been delayed or prevented from attending Court due to any accident, illness or other unforeseen circumstance. As I am satisfied that the Respondent has been given ample time to respond, I decided that the Application should proceed ex parte.

Evidence and Submissions

1. The Applicant relied on her affidavit of 31^st October 2014 and gave short oral evidence. She deposed that she had a casual relationship with the Respondent which started in 2008 and ended in mid-2013. The relationship included unprotected sexual intercourse.

2. The Applicant stated that she is certain that the Respondent is the father of the child because:

   a)She did not have a relationship with any other man for over five years prior to [X]’s birth;

   b)She was not married to or living with any other man when she became pregnant; and

   c)She has never participated in any procedure for assisted conception.

3. The Applicant applied for an assessment of child support against the Respondent in July 2014. The application was refused because the Child Support Registrar was not satisfied that she had provided evidence that the Respondent was the child’s father. His name was not recorded on the child’s birth certificate as the father. The letter of refusal was dated 2^nd July 2014.

4. The Applicant explained her failure to commence proceedings within the 56 day time limit set out in Rule 25A.06 in her affidavit by saying:

   I was delayed in making an application for Legal Aid and being able to bring this application to court in September and October 2014 because of some personal set-backs. I was informed that I would not be able to return to the position I worked in before [X] was born and because of this I also had to surrender my car. In addition my older daughter…fractured her leg.[1]

   [1] Affidavit of Ms Saville 31.10.2014 at paragraph [18]

5. The Applicant gave evidence that she has had the daily care of the child [X] since her birth.

Parentage Evidence

1. Section 69V of the Family Law Act 1975 (Cth) permits the Court, if the parentage of a child is a question in issue in proceedings under the Act, to make an order requiring any person to give such evidence as is material. The Applicant has given oral and written evidence and the Respondent would have been directed to give evidence had he attended Court.

2. Section 69VA of the act empowers the Court not only to decide the issue of parentage of a child after receiving evidence, but to issue a declaration of parentage for the purposes of all laws of the Commonwealth.

Declaration of Parentage

1. I am satisfied from the Applicant’s evidence that the Respondent is the father of the child [X]. I propose to make a declaration that the Respondent is the father of the child [X].

Leave to commence proceedings out of time

1. The Applicant seeks leave to bring her Application for a Declaration under section 106A of the Child Support (Assessment) Act 1989 (Cth) outside the time limit prescribed by the Rules. Rule 25A.06 provides that a person must file an application for a declaration under subsection 106A(2) of the Child Support (Assessment) Act 1989 within 56 days of the service on the applicant of a notice given under section 33 of that Act.

2. Rule 3.05 permits the Court to extend or shorten a time fixed by the Rules.

3. I am satisfied that the Applicant has given a good reason for an order extending the time for filing her Application. I propose to extend the time to 6^th November 2014, the date she filed her Application.

Declaration that a person should be assessed in respect of the costs of the child

1. Section 106A of the Child Support (Assessment) Act 1989 permits the Court to make a declaration that a person should be assessed in respect of the costs of the child (i.e. an assessment of child support) where:

   a)the Child Support Registrar has refused to accept an application for administrative assessment of child support under s.30(2) of the Act; and

   b)one of the reasons for the refusal was that the Registrar was not satisfied under s.29 that the person to be assessed was a parent of the child.

Conclusions

1. I am satisfied that the Applicant has established that the Respondent is the father of the child [X], who was born on [omitted] 2013. I am also satisfied that the Applicant has applied for an assessment of child support which was refused because the Registrar was not satisfied that the Respondent is a parent of the child.

2. I propose to make a declaration that the Respondent should be assessed in respect of the costs of the child because the Respondent is a parent of the child.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  9 February 2015