Sheldon and Meriton

[2020] FamCA 231

FAMILY COURT OF AUSTRALIA

SHELDON & MERITON [2020] FamCA 231

FAMILY LAW – CHILDREN – Where the mother seeks a declaration of parentage as to the child’s father and other orders including for sole parental responsibility and residence – Where the mother presses those orders on an undefended basis – Where the respondent had attended Court when the application was previously dismissed – Where the proceedings were reinstated – Where the Court is not satisfied that the respondent had adequate notice of the reinstated proceedings – Requirements of natural justice not met – Application for undefended hearing dismissed – Where the evidence in relation to the mother’s orders sought is, in any event, insufficient to support her application – Application dismissed.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CA, 60CC, 61C, 61DA, 65DAA, 68B, 69Q, 69VA
Family Law Rules 2004 (Cth) rr 6.02, 8.04, 15.13, 18.08, 24.10

Bigg and Suzi (1998) FLC 92-799
Champness & Hanson (2009) FLC 93-407
McCall & Clark (2009) FLC 93-405
Vakros & Letsos (2012) 47 Fam LR 172

APPLICANT: Ms Sheldon

RESPONDENT: Mr Meriton

FILE NUMBER: SYC 5942 of 2017

DATE DELIVERED: 15 April 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 10 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Coleman SC

SOLICITOR FOR THE APPLICANT: Andrew Cohen, Solicitor

RESPONDENT: No appearance

Orders

1. The mother’s application for orders on an undefended basis, in accordance with the Amended Initiating Application (Family Law) filed 12 April 2019, is refused.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sheldon & Meriton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC5942 of 2017

Ms Sheldon

Applicant Mother

And

Mr Meriton

Respondent

REASONS FOR JUDGMENT

Introduction  

1. These are proceedings in respect of X (“X” or “the child”) who is four years of age.  His mother is Ms Sheldon (“the mother”).  She seeks orders including an order that X live with her, that she have sole parental responsibility and that Mr Meriton (“the respondent”) be restrained from initiating contact with her or with the child, save for the purposes of child support.  She also seeks a declaration that the respondent is X’s father.

2. The orders are pressed against the respondent on an undefended basis.  I have refused to make the orders sought on an undefended basis.  What follows are the reasons for that decision.

Applications

1. The mother filed a document styled “Amended Initiating Application (Family Law)” on 12 April 2019.  In that application she sought:

   1.Order that the child X born in 2015 live with the Applicant.

   2.Order that the Applicant have sole parental responsibility for making all decisions in relation to the child X including but not limited to his health, his welfare, his housing, his education, his activities and his religious and spiritual instruction.

   3.Order that the Respondent be restrained from instigating all and any contact of whatsoever nature, obligations for child support excepted, with the Applicant and the child X.

   4.Declaration that the Respondent, Mr Meriton is the natural father of the child, X.

   5.That upon the making of order for (sic) herein, that the Respondent be restrained from denying his paternity as natural father of the child X.

   6.That the Respondent pay the costs of the Applicant Mother in these proceedings.

The Evidence

1. The mother relied on:

   affidavit of the mother sworn 6 September 2017 and filed 11 September 2017;

   affidavit of the respondent sworn 24 November 2017;

   affidavit of the mother sworn 27 February 2018[1];

   affidavit of Dr D sworn 1 November 2018; and

   affidavit of Andrew Cohen sworn 10 March 2020.

   [1] There is no record of the affidavit being filed before the hearing.  It was handed up during the hearing and deemed filed in Court.

The Hearing

1. Directions were made on 10 December 2019 listing the matter on 10 March 2020 for undefended hearing.  On 10 March 2020 the mother attended and was represented by senior counsel.  There was no appearance by or on behalf of the respondent.  The hearing proceeded and judgment was reserved, with the parties being excused from attending on delivery of judgment.

Short History

1. The parties met in April 2013.  The mother contends that they lived together from that time.  The respondent contends that the mother worked as a sex worker and that he paid to have sexual intercourse with her on a number of occasions but that they did not live together.  Relevantly, the parties had unprotected sexual intercourse in the period from 15 June 2014 to the end of July 2014.  X was born in 2015.  The respondent was arrested on about 23 April 2015 and remained in custody until 25 May 2016.  The mother contends that the parties separated on 24 April 2015.  In any event, there is no suggestion that the parties lived together after April 2015.

Notice To The Respondent

1. The mother seeks orders against the respondent on an undefended basis.  Therefore I must be satisfied that the respondent had notice of the orders sought and an opportunity to be heard. 

2. Much about these proceedings is complicated and that applies to the issue of notice and the requirements of natural justice.

3. On the face of it, the question of the respondent having notice is straightforward.  On 10 December 2019 the proceedings came before a registrar.  The mother appeared with her solicitor but there was no appearance for the respondent.  The following orders, directions and notations were made:

   1.I note that this matter was listed before me today for a directions hearing.  There was no appearance by the respondent.

   Listing

   2.The matter is listed for an undefended hearing at 10am on the 10^th March 2020, with an estimated hearing time of 2-3 hours.

   Documents to be filed

   3.The applicant mother must file and serve by midday on the 24^th December 2019, any further material she intends to rely on in these proceedings.

   Service of documents and a copy of these orders on the Respondent

   4.The solicitor for the applicant, must serve a copy of all material (if not already done so) and any additional material filed together with a copy of these Orders upon the Respondent, no later than the close of business on the 21^st January 2020. Service must be effected on all of the following:

   a)The respondent’s last known residential address at F Street, H Town, NSW,

   b)the respondent’s last known email address being ... and

   c)The respondent’s last known Facebook account (if still active).

   5.Should the respondent wish to be heard in this matter then he is to file by the close of business on the 21^st February 2020;

   a)Response to Initiating Application;

   b)Any additional affidavit material that he intends to rely on, noting that one affidavit was filed in these proceedings by the respondent on the 12^th February 2018; and

   c)Attend in person at the hearing of this matter at the Sydney Family Court 97-99 Goulburn Street, Sydney at 10am on the 10^th March 2020.

   6.In the event that the respondent fails to comply with Order 5 above, then the hearing of this matter may proceed undefended on the 10^th march 2020 and final Orders made regarding these proceedings.

   Other Orders

   7.Each party has permission to relist the case before the docket Registrar for further directions on 7 days written notice to each other party and to the Court.

   Notations

   8.The Court notes the following:

   ·That the respondent previously had legal representation until the 22^nd March 2018 at which time a Notice of Ceasing to Act was filed.

   ·There appears to have been no engagement by the respondent in these proceedings since the 24^th April 2018.

   ·There have been a further 3 court appearances since the 24^th April 2018 where the respondent or a legal representative has not attended Court or filed any further material in these proceedings.

   ·The applicant has engaged Ian Coleman SC to appear in this matter on the 10^th March 2020.

   ·That Dr D, Consultant Molecular Genetecist who swore an affidavit in these proceedings on the 1^st November 2018 and filed on the 29^th October 2019, will be available at the hearing to give any additional evidence by electronic means (if required).

   ·The Court has been informed that the solicitor for the applicant has attempted to serve material on the respondent at his last known address however all mail is returned to sender.

   ·Should the respondent re engage in these proceedings, it is recommended that he obtain legal advice.

4. In the normal course, if the applicant established that she complied with those orders and the respondent did not appear, it could be anticipated that the hearing would proceed on an undefended basis.  Here the mother’s solicitor deposed[2] that on 4 February 2020 he wrote to the respondent to the H Town address and by email and Facebook message, enclosing “all of the documents and the text of a letter”.  The documents sent were said to include:

   1.Affidavit of Ms Sheldon filed 12 April 2019

   2.Current amending Initiating Application of Ms Sheldon

   3.Affidavit of Dr D sworn [1 November 2018]

   4.Affidavit of Andrew Cohen sworn 29 October 2019

   5.Current Application in a Case

   6.Orders of Family Court of Australia made December 10, 2019

   [2] Affidavit of Andrew Cohen sworn and filed 10 March 2020.

5. When paraphrasing the orders in the message sent to the respondent, the mother’s solicitor referred to the respondent’s email address as ... rather than ... but he deposed to sending the email to the latter (correct) address.  On or about 24 February 2020 the mother’s solicitor received by return post, the letter he had sent to the respondent at the H Town address, apparently unopened.  Otherwise, the mother’s solicitor received no response or contact from the respondent or anyone on his behalf since sending the communications on 4 February 2020.

6. The precise terms of Order 4 of 10 December 2019 were not followed.  Rather than by 21 January 2020, the material was dispatched on 4 February 2020.  However, in my view, there was substantial compliance with the order for service. 

7. However, as the notations contained in the Orders made on 4 December 2019 suggest, there is more to the story.  The background facts have a bearing on the question of notice and therefore on the requirements that the mother be able to demonstrate, and that the Court be satisfied, that the respondent had an opportunity to be heard.

8. The parties cooperated in DNA testing, aimed at establishing whether the respondent is X’s father.  Reports were provided from that testing in 2015 and 2016.  I will return to those reports later in these reasons.

9. Proceedings commenced when the mother filed an Initiating Application in this Court on 11 September 2017, seeking a declaration that the respondent is X’s father.  The respondent took part in those proceedings.  A Notice of Address for Service was filed on his behalf on 27 November 2017, giving the address of J Business at Suburb K, as his address for service.  There were appearances for both parties at procedural events on 7 and 28 November 2017 and 13 February 2018.  On the latter date the respondent was ordered to file a Response to the mother’s Application and the matter was adjourned to 24 April 2018 for a directions hearing.

10. On 22 March 2018 a Notice of Ceasing to Act was filed by the respondent’s solicitor.  That Notice gave the last known address of the respondent as F Street, H Town.  Where a lawyer ceases to act for a party, that party’s last known address is his or her address for service until a new address for service is provided. [3]  Therefore, as at 22 March 2018, the respondent’s address for service was F Street, H Town.

    [3] Rule 8.04(2) of the Rules.

11. However, on 24 April 2018 the proceedings came before the Senior Registrar. The respondent appeared in person and was assisted by a duty lawyer. There was no appearance by or on behalf of the mother. The Court file records that the mother’s application was “dismissed” pursuant to r 24.10(1)(e) of the Family Law Rules 2004 (Cth) (“the Rules”) on the basis that it sought a bare declaration of paternity, but no substantive parenting orders. Although the Senior Registrar recorded that the application was dismissed, there is no power under r 24.10 of the Rules to dismiss an application. The rule only provides for rejecting a document filed or received for filing. The effect of what the Senior Registrar did was presumably to reject the mother’s Initiating Application for filing, albeit more than seven months after the event.

12. On 27 November 2018 the mother filed an Application in a Case seeking that her proceedings be “reinstated to be an active case”.  On 22 January 2019 that application was “struck out” by a registrar.  There is no power in the Family Law Act 1975 (Cth) (“the Act”) or the Rules to strike out an application. See the judgment of the Full Court in Bigg and Suzi (1998) FLC 92-799 at paragraph 5. There is power to strike out parts of an affidavit[4] but that is of no assistance here.  Sometimes the term “struck out” is used by courts in the sense of removing a matter from a particular list and it is possible that that is what the registrar had in mind in this instance.

    [4] Rule 15.13 of the Rules.

13. There is provision for reviewing the decision of a registrar[5] and the Rules make specific reference[6] to the right of a party to apply for a review of a registrar’s decision under r. 24.10 to reject an application for filing.  It is possible that the mother’s Application in a Case filed 27 November 2018 was intended to be an application for review although that was not apparent from the terms of the application.  If the application was an application for review, it was not an application that could be determined by a registrar and it should have been referred to a judge.  

    [5] Rule 18.08 of the Rules.

    [6] Rule 24.10(3) of the Rules.

14. The question arises, since the order made on 24 April 2018, what was the status of the proceedings commenced by the mother on 11 September 2017?  They had not been determined on the merits but the Initiating Application may have been rejected for filing, albeit long after the event.

15. Compounding the confusion, on 12 April 2019 the mother filed an “Amended Initiating Application (Family Law)”.  That application was accepted for filing, presumably, indeed necessarily, on the basis that there were already proceedings on foot.  Lending support to that position, there is no indication on the Court file, for example, that a new filing fee was required or paid.

16. On the return date of the Amended Application, 3 May 2019, the mother appeared with her solicitor but there was no appearance for the respondent.  The mother’s Amended Initiating Application was dismissed but only as to the interim orders sought.  The substantive proceedings were adjourned and on 10 December 2019 the orders for service and listing the proceedings for hearing before me on 10 March 2020, which are set out earlier in these reasons, were made.

17. I cannot be confident that the mother’s documents and the Orders of 10 December 2019 came to the attention of the respondent.  However, as a matter of record, the respondent has an address for service in proceedings that apparently remain on foot.  From 20 March 2018 when a Notice of Ceasing to Act was filed by the respondent’s solicitor it was the responsibility of the respondent to notify the Court and the mother of any change to his address for service.  As I have said, I am satisfied that there has been substantial compliance with the order for service made on 10 December 2019 and on that basis there is an argument that the mother’s application can properly be heard undefended against the respondent.  The problem is that those propositions rest on a fragile foundation.

18. Notwithstanding the formal position, the respondent was present at Court on 24 April 2018.  He was assisted by a lawyer from Legal Aid and he heard the Senior Registrar say that the mother’s Application was dismissed.  In those circumstances, where I am not confident that he has notice of the ‘revived’ proceedings, it would be unjust to make the orders and declarations sought against the respondent on the basis that he did not defend the proceedings.

19. It was suggested on behalf of the mother that if I was concerned about the adequacy of notice to the respondent, I could make the substantive orders sought but require service of those orders on the respondent and stay the operation of the orders for a period to give the respondent a further opportunity to be heard.  Such a course would be taken out of caution that there may have been a problem with the integrity of proper notice to a party.  That is not the situation here.  I know that on 24 April 2018 the respondent was told something from which he was entitled to assume that the proceedings against him had been finalised.  There is no evidence that he has had notice of anything that happened since.

20. In his affidavit filed on 27 November 2018 the mother’s solicitor sets out the very unfortunate circumstances about his own health that caused or contributed to periods of apparent inaction on the part of the mother in these proceedings.  The mother’s solicitor has been unable to attend to aspects of the mother’s case from time to time and through no fault of his.  Similarly, there can be no criticism of the mother in relation to the deficiencies in her prosecution of these proceedings.  The difficulty for the mother, however, is that none of those problems were the responsibility of the respondent and they cannot justify any erosion of his right to be heard.  In the circumstances, the respondent was entitled to be personally served or to have the benefit of substituted service which was highly likely to bring the proceedings and the associated documents to his attention.  As I understand the mother’s case, at one time she lived with the respondent’s parents at H Town.  For example, the mother could have made contact with the respondent’s parents or one of them.  She could have ascertained their current address and whether they had the respondent’s address or were able to contact him.  For all practical purposes, the standard of service required here was the standard for new proceedings.

21. The requirements of natural justice are fundamental to these proceedings and they have not been met.  That is the end of the matter and I will refuse the mother’s application to make orders in accordance with her Amended Initiating Application on an undefended basis. 

22. The mother’s application will be refused but it may nevertheless be useful if I say something about the substantive orders sought:

Declaration Of Paternity?

1. The mother filed an application in 2017 that sought only a declaration of paternity and no parenting orders. The application was ultimately rejected for that reason. The issue there arises from the fact that the Family Court of Australia is a court of limited jurisdiction. Unlike superior common law courts, the Family Court of Australia has only the powers conferred on it by statute and powers that are incidental to or associated with those conferred powers. The power conferred on the Court to make a declaration of paternity is found in s 69VA of the Act which provides:

Section 69VA

Declarations of parentage

As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.

1. The phrase in that section “for the purposes of proceedings” has been interpreted to mean that a finding of paternity and a declaration of paternity may only be made in the course of (other) proceedings before the Court.  That appears to be the interpretation accepted on behalf of the mother because her Amended Application filed in 2019, which is now before the Court, added to the application for a declaration of paternity, prayers for relief in respect of residence and decision-making about X.  The fact that the new relief was not originally sought gives rise to a concern that the amendments to the application were made for a reason other than any need for the new relief specified.  The mother does not identify any controversy about X’s residence or about the exercise of parental responsibility for him.  There is no recent evidence before the Court about X.  Those matters support the concern identified above – that the parenting proceedings have been brought for a purpose other than their stated purpose. 

2. In September 2017 the mother deposed[7] that she was unemployed and totally dependent on Commonwealth benefits.  She asserted that the benefits received by her were about $150 less than they otherwise would have been because she insisted that the respondent is X’s father and that has not been accepted by him or confirmed by “a finding of this court”.

   [7] Paragraph 18 of her affidavit filed 11 September 2017.

3. I asked the mother’s counsel why the proceedings have been brought and was told that there were three main reasons.  Firstly it was submitted that a declaration of parentage in relation to the father was a jurisdictional precursor to any assessment of child support while the parenting orders were justified as a form of protection in the event that the father “came out of the woodwork” and wished to be part of the child’s upbringing in the future.  Reference was made to the connection between the two in that if the mother was to pursue an application for child support, the father might then seek to spend time with the child as a means of reducing his child support obligations.

4. The third of these reasons, and the one submitted to be the most important and main driving factor in the application for the declaration of paternity, was the right of a child to know his father.  It was submitted on behalf of the mother that a child has a birth right and entitlement to have a superior court of record with competent jurisdiction make a decision as to who his or her father is, in the event that such a decision was unable to be made between the parents themselves.  Learned senior counsel for the mother emphasised that this last point was “by far the most dominant motivation” and clarified that if I had been misled based on what had been submitted to me so far, that child support was the main reason for the application, then that was not correct.

The Legislation In Respect Of Parenting Proceedings

1. The law to be applied in parenting proceedings is found in Part VII of the Act.

2. Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.

3. The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility.  The presumption may not apply but if it does apply, it can be rebutted.  If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time.  Findings are made by reference to what is in the child’s best interests.

Is the respondent X’s father?

1. Some of the s 60CC considerations apply specifically to parents. The parents of a child are necessary parties to parenting proceedings.[8]  A determination about parenting orders for X requires, if possible, the identification of X’s father or more particularly, a decision about whether the respondent is his father.

   [8] Rule 6.02(2) of the Rules.

2. Subdivisions D & E of Division 12 of Part VII of the Act deal with parentage. Relevant to these proceedings, s 69Q creates a presumption of paternity arising from the cohabitation of the mother and a man to whom she was not married. The section provides:

SECT 69Q

Presumption of paternity arising from cohabitation

If:

(a)  a child is born to a woman; and

(b)  at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth, the woman cohabited with a man to whom she was not married;

the child is presumed to be a child of the man.

1. X was born in 2015.  Therefore the relevant period commenced not earlier than 15 June 2014 and ended not later than 30 November 2014.

2. The mother deposed that she commenced living with the respondent in April 2013 and that they separated on 24 April 2015.  She says that she had an exclusive sexual relationship with the respondent throughout their relationship.  In terms of the relevant period, it is the mother’s evidence that she stayed with the respondent in the premises he was renting in Suburb L and that in about July 2014 the parties commenced living together in rented premises at M Street, Suburb N.  She says that in August 2014 she discovered that she was five weeks pregnant.  On the mother’s case, X was conceived between 15 June 2014 and a date that was five weeks prior to an unspecified date in August 2014. 

3. Although the respondent was not at the hearing to rely on his affidavit, I was invited by learned senior counsel for the mother to read the respondent’s affidavit sworn 9 February 2018 and filed 12 February 2018.  It is his evidence that he returned to Australia in June 2013.  In September 2013 he moved to rented premises at Suburb L where the mother occasionally came to stay.  To the best of his recollection, at the end of August 2014 the parties moved together into a property at M Street, Suburb P (the mother says that it was in Suburb N) “after she told me she was pregnant”.  It is the respondent’s evidence that the parties had not seen each other in the month prior.  Although the respondent does not specifically say so, the necessary inference from his evidence is that he and the mother had unprotected sexual intercourse during the relevant period from 15 June 2014 to the end of July 2014 and from the end of August 2014 until 30 November 2014.  The respondent purports to give evidence about the mother having other sexual partners, evidence which he does not qualify himself to give.  Evidence he gives about him having other sexual partners is not relevant to the matter at issue. 

4. Although I have referred to the parties’ evidence about their sexual relationship, it should be emphasised that the presumption in s 69Q arises from cohabitation and not from the fact of sexual intercourse.[9]  The presumption created by s 69Q operates in favour of the mother’s case.  There remains the question of whether the presumption that the respondent is X’s father, can be rebutted.

   [9]Vakros & Letsos (2012) 47 Fam LR 172 at [54] – [55].

5. In any event, the availability of a presumption is certainly not the end of the matter.  In Brianna & Brianna (2010) FLC 93-437 the Full Court was constituted by Bryant CJ, Finn and Thackray JJ. The decision was unanimous but the reasons were given by the Chief Justice separately from a joint judgment by Finn and Thackray JJ. In the course of her reasons the Chief Justice wrote:

   21.The effect of rebuttable presumptions in parentage was considered by the Full Court In the Marriage of Lee and Tse (supra), the Full Court concluding that parentage will not be determined by presumptions but by the best available evidence allowed by modern science. The Full Court cited with clear approval extracts from a number of decisions dealing with presumptions of parentage. In G v H [1993] FamCA 39; (1993) FLC 92-380 Fogarty J noted at 79,942:

   Paternity is now a medical and not a legal issue. Society is entitled, through the legislature and the Courts, to an inexpensive, prompt and virtually certain procedure to decide this question. Paternity is no mere inter partes issue. The child and society have a vested interest in the correct outcome. The reasons for that are many, including heredity, the sense of identity and the private and public obligation of financial support directly relevant in this case and so emphasized [sic] by the legislature over the past decade.

   22.It is also noted that Strauss J in the same case referred to the House of Lords decision in S v S [1970] 3 All ER 107, in which Lord MacDermott cited with approval the judgment of Denning MR in the Court of Appeal decision reported as S v McC (formerly S) and M (S  intervening) [1970] 1 All ER 1162 at 1165:

   In my opinion, when a court is asked to decide whether a child is legitimate or not, it should have before it the best evidence which is available. It should decide on all the evidence, and not on half of it. There is at hand in these days expert scientific evidence—by means of a blood test—which can in most cases resolve the issue conclusively. In the absence of strong reason to the contrary, a blood test should be made available. The interests of justice so require.

   23.In Re D (Paternity)[2007] 2 FLR 26 Hedley J found that the child (of whose paternity was in question) was “adamant to anyone who will listen to him that as [the non-paternal] father is his father, that he wants nothing to do with the idea of the applicant and that he is deeply resistant to scientific testing.” His Honour noted that the law was clear in what it required him to do when subjected to the best interest test pursuant to s 1 of the Children Act 1989 (UK), which is, to “pay particular regard to the views of the child having regard to his age and understanding”. While his Honour found that the child was not competent “in the Gillick sense of that term”, he was still able to understand the “essence of the issue between the adults” including what the paternity testing means and what the conclusions might be. Still, his Honour found that the child’s identity is something which he should know and that it was thus in his best interests “to know the truth... and that in the end truth is easier to live with than doubt or fiction”.

6. In the proceedings before me, in addition to the evidence of the parties, there is evidence of results from parentage testing.  There is a report dated 17 December 2015 from Dr C of G Services and another report dated 16 August 2016 from Ms B of H Services.  Finally, there is a statement dated 13 April 2017 from Dr D who practices at the Q Centre, commenting on the earlier reports.  The reports are conveniently found as annexures to the affidavit of Dr D.  The experts assert and I will accept, that each of them is qualified to undertake parentage testing procedures.  That means that they are nominated reporters for laboratories accredited by the National Association of Testing Authorities to carry out parentage testing procedures. However, it is not apparent that any of their opinions were given pursuant to a parentage testing order under s 69W of the Act. The respondent deposed[10] that towards the end of 2015 the mother sought an order through this Court to the effect that he is the father of X.  He deposed[11] that in mid-2016 the mother again sought an order through this Court that he is the father of X.  It is likely that the respondent was wrong about the mother making such applications.  The two reports and Dr D’s statement all predate these proceedings which commenced on 11 September 2017, and therefore none of them resulted from an order made in these proceedings.  There is no reference in the evidence of the mother or of her solicitor to any earlier proceedings between the parties.  There is no reference in either report or Dr D’s statement that the experts’ work was undertaken pursuant to an order.  Paragraph 50a of the Initiating Application filed by the mother on 11 September 2017 called for her to set out the details of any existing orders inter alia … about family law.  That paragraph is endorsed “No”.  There is a similar endorsement at paragraph 50a of the mother’s Amended Initiating Application. 

   [10] Paragraph 13 of the affidavit of the respondent filed 12 February 2018.

   [11] Paragraph 15 of the affidavit of the respondent filed 12 February 2018.

7. In any event, because the respondent provided relevant samples for the first two reports, it is clear that he joined with the mother and X in the testing process that lead to those reports.

8. Dr C concluded that his testing excluded the respondent as the biological father of X.  Ms B concluded that her testing was “inconclusive as to whether or not Mr Meriton is excluded from identification as the father of X”.

9. Dr D disagrees with the conclusions reached by the report writers.  In his view, it is very likely that the respondent is the father of X compared to an unrelated male in the general population.  He concludes that it is also likely that the respondent is the father of X compared to one of the respondent’s close relatives but he concedes that that likelihood is reduced compared to that which applies in respect of an unrelated male. 

10. There is no evidence suggesting that the respondent was involved in instructing Dr D.  It is likely, however, that the respondent had the opportunity to see Dr D’s statement.  Dr D’s statement is dated 13 April 2017 and a copy was annexed to the mother’s affidavit sworn 6 September 2017.  The respondent’s affidavit sworn 9 February 2018 and filed 12 February 2018 responds to the mother’s affidavit. 

11. Ultimately Dr D’s statement was annexed to and verified by his own affidavit sworn on 1 November 2018 that was filed on 29 October 2019. 

12. In the normal course, contentious issues in legal proceedings are resolved by agreement or by the testing of evidence. In the case of disputes between experts from similar professions about a particular issue, that would normally be addressed by the experts being ordered to confer. In the event that there remained any controversy between the experts they would be required to prepare a statement setting out the matters about which they agree, those about which they disagree and the reasons advanced by each of them as to why their opinion should be preferred on the contentious issue. If, after the conference of experts there continues to be a controversy, the experts would be cross-examined, in some cases they would be sworn together and cross-examined concurrently. Ultimately in contested proceedings the controversial issue will be one for the judge. Here, without any testing of the evidence, I am asked to make an important finding of fact in terms that are not consistent with the experts with whom the parties engaged, based on commentary from an expert independently instructed by the mother. There may be reason to prefer the evidence of the mother’s expert but without the usual mechanisms for testing conflicting opinions, I will not do that here. This is not a situation of making a finding of paternity whatever the circumstances. Such a finding falls to be made on the civil standard but s 140 of the Evidence Act1995 (Cth) requires particular attention in making that finding, to the importance of the matter at issue.

13. I am not satisfied to the required standard, that the respondent is X’s father.

Parenting Orders

The current arrangements

1. The child lives with the mother and spends no time with the respondent.

The parties’ proposals

1. The mother seeks orders about X’s living arrangements and parental responsibility.  The question is whether the Court’s imprimatur should be given to those current arrangements.

Section 60CC considerations

1. Section 60CC specifies the following considerations:

Primary considerations:

Note:  Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents

1. A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[12] That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.

   [12]McCall & Clark (2009) FLC 93-405.

2. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[13]

   [13]Champness & Hanson (2009) FLC 93-407.

3. I am not satisfied that the respondent is X’s father and therefore his relationship with X is not relevant to this criterion.

4. As a meaningful relationship with his father is not in prospect, it is important that X have a meaningful relationship with his mother.  There is no recent evidence about X or his relationship with his mother.  The most recent of the mother’s affidavits was affirmed in February 2018.  Nevertheless, any orders made should promote the relationship between X and his mother.

(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. ‘Abuse’ and ‘family violence’ are defined terms.

   "abuse" , in relation to a child, means:

   (a) an assault, including a sexual assault, of the child; or

   (b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d) serious neglect of the child.

2. Section 4AB provides:

   (1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.

   (2) Examples of behaviour that may constitute family violence include (but are not limited to):

   (a) an assault; or

   (b) a sexual assault or other sexually abusive behaviour; or

   (c) stalking; or

   (d) repeated derogatory taunts; or

   (e) intentionally damaging or destroying property; or

   (f) intentionally causing death or injury to an animal; or

   (g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   (h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

   (i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

   (j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

   (3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

   (4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

   (a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or

   (b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or

   (c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or

   (d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or

   (e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.

1. There is no evidence that X will need protection from abuse or family violence.

2. Section 60CC (2A), which deals with the weight to be given as between the primary considerations, has no work to do here.

Additional considerations

(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

1. There is no evidence of any views expressed by X but at about five years of age, his views would not be relevant to the outcome of proceedings about his welfare, in any event.

   (3)(b) the nature of the relationship of the child with:
   (i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child);

1. There is no evidence about the nature of the relationship between X and his mother or with any other person. 

(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and

(iii) to communicate with the child;

1. There is no specific evidence relevant to this criterion but the background facts reveal that the mother has been left to care for X, since birth.

   (3)(ca)  the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

2. There is no specific evidence relevant to this criterion but one would assume that the child has been maintained and that is presumably as a result of the mother’s efforts.

   (3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
   (i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. There is no proposal to change X’s circumstances.

(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

1. This is not a relevant criterion as I am not in a position to find that the respondent is X’s father.  In any event there is no evidence that a putative father is available and willing to maintain personal relations and direct contact with X.

   (3)(f) the capacity of:
   (i) each of the child’s parents; and
   (ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

1. There is no evidence that would assist with this criterion.

(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

1. There is no evidence relevant to this criterion.

   (3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
   (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right

1. There is no evidence to suggest that this criterion applies.

(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. No father figure has come forward to take up responsibility for X.  The background facts suggest that what parenting has been undertaken has been undertaken by the mother.

(3)(j) any family violence involving the child or a member of the child’s family;

1. There is no relevant evidence of family violence.

   (3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
   (i)  the nature of the order;
   (ii)  the circumstances in which the order was made;
   (iii)  any evidence admitted in proceedings for the order;
   (iv)  any findings made by the court in, or in proceedings for, the order;

(v)  any other relevant matter;

1. There is no evidence of such an order.

(l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. No such order is proposed.

(3)(m) any other fact or circumstance that the court thinks is relevant.

1. Nothing comes to attention here.

Parental responsibility

1. Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.

2. If no order is made in respect of parental responsibility then the position as to the parents of a child is as follows:

   SECT 61C

   Each parent has parental responsibility (subject to court orders)

   (1) Each of the parents of a child who is not 18 has parental responsibility for the child.

   Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.

   Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.

   Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.

   (2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.

   (3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).

   Note: Section 111CS may affect the attribution of parental responsibility for a child.

3. An order for shared parental responsibility has the following effect:

   SECT 65DAC

   Effect of parenting order that provides for shared parental responsibility

   (1) This section applies if, under a parenting order:

   (a) 2 or more persons are to share parental responsibility for a child; and

   (b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.

   (2) The order is taken to require the decision to be made jointly by those persons.

   Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).

   (3) The order is taken to require each of those persons:

   (a) to consult the other person in relation to the decision to be made about that issue; and

   (b) to make a genuine effort to come to a joint decision about that issue.

   (4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

4. Presumably that must also apply to equal shared parental responsibility.

Discussion

1. In the context of this case, s 61DA requires that I apply a presumption that it is in the child’s best interests for his parents to have equal shared parental responsibility for him unless there are reasonable grounds to believe that the father or the mother have abused him or engaged in family violence. The presumption applies but it is rebutted because I cannot make a finding about the identity of X’s father.

2. Where the presumption does not apply, s 65D(1) requires the Court to make such order with respect to parental responsibility, and/or time to be spent with each of the parties as it “thinks proper”. What is proper is what is in the best interest of the child - determined by reference to s 60CC of the Act.

3. The mother must continue to exercise parental responsibility and there being no other applicant for that role, she will continue to do so, alone.

Living arrangements

1. X apparently lives with the mother.  There is no evidence of his current circumstances, health, education, family connections or progress.  There is no proposal for a change in his living arrangements.

2. The residence order sought by the mother makes sense but she has not put evidence before the Court that would support any orders other than  orders made by agreement.

Injunctions

1. The mother seeks orders restraining the respondent. Section 68B of the Act provides as follows:

FAMILY LAW ACT 1975 - SECT 68B

Injunctions

(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:

(a)an injunction for the personal protection of the child; or

(b)      an injunction for the personal protection of:

(i)       a parent of the child; or

(ii)a person with whom the child is to live under a parenting order; or

(iii)a person with whom the child is to spend time under a parenting order; or

(iv)a person with whom the child is to communicate under a parenting order; or

(v)      a person who has parental responsibility for the child; or

(c)an injunction restraining a person from entering or remaining in:

(i)a place of residence, employment or education of the child; or

(ii)a specified area that contains a place of a kind referred to in subparagraph (i); or

(d)an injunction restraining a person from entering or remaining in:

(i)a place of residence, employment or education of a person referred to in paragraph (b); or

(ii)a specified area that contains a place of a kind referred to in subparagraph (i).

(2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

(3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.

1. Although contained in Part VII of the Act, an order under s 68B is not a parenting order (s 64B) and therefore is not an order to which s 60CA applies. As a result, while the welfare of the child is a consideration in making an order under s 68B, it is not the paramount consideration.

2. There is no evidence to support the making of an injunction. 

Conclusion

1. The mother commenced proceedings for a declaration of parentage. On 24 April 2018 her application was “dismissed” under r 24.10(1)(e) of the Rules which allows for the rejection of the filing of applications deemed to be, among other things, an abuse of process. There was no appearance by or on behalf of the mother on 24 April 2018 and it would be understandable if the respondent understood that the mother’s application was dismissed on that day. Since that time there is no evidence that the respondent has had notice of the proceedings. Notwithstanding that there was substantial compliance with the orders for service made on 10 December 2019, I am not satisfied that he had notice of the case against him or of the hearing date.

2. For that reason the mother’s application for orders on an undefended basis is refused.  In my view, there are problems with the mother’s application in any event. 

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 15 April 2020.

Associate: 

Date:  15 April 2020