Stevenson and Bothwell

[2014] FCCA 1509

FEDERAL CIRCUIT COURT OF AUSTRALIA

STEVENSON & BOTHWELL [2014] FCCA 1509

Catchwords:
CHILD SUPPORT – Application by non-parent carer for s.106A declaration under Child Support (Assessment) Act 1989 and declaration of parentage under s.69VA of the Family Law Act 1975 – application for extension of time to file.

Legislation:

Child Support (Assessment) Act 1989, ss.4, 7B, 25A,106A
Family Law Act 1975, ss.69VA, 117
Federal Circuit Court Rules 2001, rr.3.05, 25A.06, Schedule 1

G v H [1994] HCA 48
Letsos & Vakros [2012] FamCAFC 40
McMahon and McMahon (1976) FLC 90-038
OP & HM (2002) FamCA 454
Tormsen v Tormsen (1993) FLC 92-392
V & V [2002] FMCAfam 408

Applicant: MR STEVENSON

Respondent: MR BOTHWELL

File Number: SYC 7520 of 2013

Judgment of: Judge Sexton

Hearing date: 19 June 2014

Date of Last Submission: 4 July 2014

Delivered at: Sydney

Delivered on: 14 July 2014

REPRESENTATION

Solicitors for the Applicant: Legal Aid Commission NSW

Solicitors for the Respondent: No appearance

ORDERS AND DECLARATIONS

1. Leave be granted to the Applicant to file an application pursuant to s.106A of the Child Support (Assessment) Act 1989 out of time.   

2. The extension of time in Order (1) apply in relation to the Application for child support refused by the Child Support Agency in their letter of 24 March 2011. 

3. Pursuant to s.69VA of the Family law Act 1975 the Court declares that the Respondent, MR BOTHWELL, is the father of the children, X and Y, twins born on (omitted) 2009.

4. Pursuant to s.106A of the Child Support (Assessment) Act 1989 the Court declares that the Respondent, MR BOTHWELL, should be assessed in relation to the costs of the Children X and Y, born (omitted) 2009, as a parent of the Children. 

5. Within 28 days the Respondent pay the Applicant's costs in the sum of $500 to the Legal Aid Commission of NSW.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7520 of 2013

MR STEVENSON

Applicant

And

MR BOTHWELL

Respondent

REASONS FOR JUDGMENT

1. This application is brought by the carer of twins named Y and X for declarations under section 106A of the Child Support (Assessment) Act 1989 and section 69VA of the Family Law Act 1975.  The Applicant also seeks an order for an extension of time to file his application to the date of filing, being 18 December 2013.

2. Since November 2011, the twins have had their names registered as Y and X.[1] 

   [1] Annexure H to Applicant’s affidavit sworn on 5 December 2013

3. The Applicant deposes to the Respondent being the biological father of the twins.

4. The Applicant's originating application first came before the Court on 7 February 2014 when both parties appeared represented. Orders were made by consent on that day for the parties to submit to DNA testing to determine whether the Respondent is the father of the twins. The Applicant's DNA test results are in evidence and exclude him as the twins' biological father.[2]

   [2] Annexures B and C to Applicant’s affidavit sworn on 5 December 2013

5. On 1 April 2014, there was no appearance by or on behalf of the Respondent. The Court was advised that the Respondent had failed to comply with orders of 7 February 2014.  The Court noted on that day that if the Respondent failed to comply with the orders of 7 February 2014 and/or failed to appear on the adjourned date of 19 June 2014, the matter would proceed in his absence and orders may be made as sought by the Applicant. The matter was adjourned to 19 June 2014 for undefended hearing.

6. The Court also made an order for the Applicant's solicitor to forward a sealed copy of the orders of 1 April 2014 to the Respondent with a letter advising the Respondent that the matter would proceed on the adjourned date and the likely ramifications of the Respondent's failure to appear on that day.  I am satisfied Mr McCulloch complied with that order in a timely way and provided the Respondent with a thorough and clear explanation of what the Applicant would be seeking and the likely consequences of his failure to appear on the adjourned date.[3]

   [3] Annexure A to affidavit of Mr McCulloch sworn on 16 June 2014

7. The Applicant filed an Amended Application on 11 April 2014 which I am satisfied was served on the Respondent shortly afterwards. 

8. In his Amended Application, the Applicant seeks leave for the extension of time to apply in respect of the child support application sought by the Applicant and refused by the Child Support Agency in their letter dated 24 March 2011, or in the alternative (if that application is unsuccessful) for the extension of time to apply in respect of the child support application made by the applicant and refused by the Child Support Agency in their letter dated 10 October 2013. 

Background facts

1. The mother of the twins, Ms L, ceased to have care of the twins on 10 October 2009, when they were released from the hospital at 3 months of age into the care of the Applicant. 

2. The Applicant and the Mother are the biological parents of another child, Z, born on (omitted) 2008. The Applicant has had the sole care of Z since his birth.

3. The Applicant deposes to the Mother having two other children to the Respondent; a child A, now aged approximately 20 years, and a daughter B, aged approximately 8 years.

4. The Applicant deposes to the mother, Ms L being "a drug dependent addict who habitually used the drug known as 'ice'." [4]

   [4] At paragraph 7 of Applicant’s affidavit sworn on 5 December 2013

5. The Applicant has had the care of the children since October 2009 and is recognised by the Department of Family and Community Services (FACS) as a 'relative/kinship carer'.[5] The Mother has paid the Applicant child support since the Children have been in his care, but at the minimum rate for Centrelink recipients. 

   [5] At Annexure J of Applicant’s affidavit sworn on 5 December 2013

6. The Applicant says[6] that FACS identified that either he or the Respondent, were most likely to have fathered the twins and invited both to participate in DNA testing in or about October 2009.  As a result of this testing, the Applicant was excluded as a biological parent of the twins.[7] The Respondent did not undertake DNA testing as requested by the Department.   

   [6] Applicant’s affidavit sworn on 5 December 2013

   [7] Annexures B and C of the Applicant’s affidavit sworn on 5 December 2013 

The Applicant's standing

1. I am satisfied that the Applicant carer falls within the categories of people who may apply for a child support assessment.  The Applicant is not a biological parent, but has the sole responsibility and care of the Children pursuant to final orders of this Court of 18 June 2010.[8]  He is also recognised as a relative/kinship carer by the Department of Family and Community Services. 

   [8] Annexure E of Applicant’s affidavit sworn on 5 December 2013 

2. Section 25A of the Child Support(Assessment) Act 1989 provides that a person who is not a parent of a child may apply to the Registrar under this section for an administrative assessment of child support for the child if:

   a)the applicant carer is an eligible carer of the child; and

   b)one of the following also applies:

   i)the applicant applies for both parents to be assessed in respect of the costs of the child;

   ii)if one parent of the child is neither a resident of Australia nor a resident of a reciprocating jurisdiction - the applicant applies for the other parent to be assessed in respect of the costs of the child;

   iii)if the Registrar is satisfied that there are special circumstances - the applicant applies for the other parent to be assessed in respect of the costs of the child;

   iv)if one parent of the child is dead - the applicant applies for the other parent to be assessed in respect of the costs of the child; and

   c)the applicant is not living with either parent as the partner of that parent on a genuine domestic basis...; and

   d)the applicant complies with any applicable requirements of section 26 (dealing with joint care situations) and section 26A (dealing with children cared for under child welfare laws); and

   e)if a parent of the child who is to be assessed in respect of the costs of the child is not a resident of Australia on the day on which the application is made - the application meets the requirements of section 29A and 29B.  

3. I am satisfied that the Applicant is an eligible carer[9] and that he satisfies section 25A(b)(i) as the other parent (the Mother) is assessed to pay him child support for the twins. [As the Applicant has the care of the twins pursuant to an Order made under the Family Law Act 1975[10], not under child welfare legislation,[11] section 26A does not apply]. 

   [9] As defined in section 7B(1) of the Child Support (Assessment) Act 1989

   [10] Annexure E of Applicant’s affidavit sworn on 5 December 2013

   [11] Despite reference being made by the Applicant in his affidavit to care proceedings, there is no evidence of any child welfare orders being made. 

Extension of time 

1. The Applicant has applied to the Child Support Agency on two occasions for an administrative assessment of child support for the Children, payable by the Respondent.  Both applications were refused by letters dated 24 March 2011[12] and 10 October 2013.[13]

   [12] Annexure G of Applicant’s affidavit sworn on 5 December 2013

   [13] Annexure K of Applicant’s affidavit sworn on 5 December 2013

2. Section 106A(3) of the Child Support (Assessment) Act 1989 specifies a time limit for filing an application for declarations to the court, providing that the application must be made within:

   a)the time prescribed by the applicable Rules of Court; or

   b)such further time as is allowed under the applicable Rules of Court.

3. Rule 25A.06 of the Federal Circuit Court Rules 2001 prescribes a time limit of 56 days of the service on the Applicant of a notice refusing an application for a child support assessment, to file proceedings under s. 106A of the Assessment Act. Rule 3.05 of the Federal Circuit Court Rules 2001 provides that the Court may grant leave to extend time to file an application after the expiry of the prescribed time. 

4. The Applicant's solicitor sets out the principles to be applied in determining an application for an extension of time.  I agree with his submissions.  While the Court has a broad discretion, the fundamental issue is whether an extension of time will enable the Court to do justice between the parties.  The Applicant should show adequate reasons for the delay in filing, that there is merit in the application, and that on a weighing of the prejudice to the Respondent if leave were granted against the hardship which would be caused to the Applicant if leave were not granted, the balance is in favour of the Applicant.[14] It is open to the Court to also consider other matters. 

   [14] See OP & HM (2002) FamCA 454 at [19]; McMahon and McMahon (1976) FLC 90-038; Tormsen v Tormsen (1993) FLC 92-392; and V & V [2002] FMCAfam 408 at [8]

5. The Applicant's first application to the Agency (March 2011) was refused because the Agency was not satisfied that the Respondent was the father of the twins.[15] The Applicant deposes to the following facts to explain his delay in filing an application to the Court at that time:

   a)In late November 2009, he had seen the Respondent and arranged to meet him the following day to discuss the future of the twins.

   b)The Respondent texted the Applicant to say he could not meet him that day, to make a new arrangement which he did not keep, and made no further contact after that.

   c)Despite the Applicant seeing him from time to time after that, the Respondent would not engage in discussion about the twins. In March 2011, the Applicant decided to make an application to the Agency. 

   d)When the Application was refused, he still hoped to maintain an amicable relationship with the Respondent so he could foster a relationship between the Respondent, his family and the siblings and half brother of the twins. He therefore did not apply to the Court at that time.

   [15] Annexure G of Applicant’s affidavit sworn on 5 December 2013

6. On 10 October 2013, on the advice of his solicitor, the Applicant made a further application to the Agency, by  telephone, for an administrative assessment of child support payable by the Respondent and was refused verbally by the Agency, the refusal confirmed in writing by a letter of the same date.[16]

   [16] Annexure K of Applicant’s affidavit sworn on 5 December 2013

7. The Applicant's solicitor, Mr McCulloch, explains the delay in the filing of the second application to the Court as follows:

   a)The Applicant submitted an application for legal aid on 30 September 2013 which was submitted to the Grants Department on 8 October 2013, with a request for the exercise of discretion to make the grant because the Applicant's circumstances fell marginally outside the means test guidelines.

   b)On 10 October 2013, the Applicant consulted Mr McCulloch at the monthly outreach advice service at (omitted) when the Applicant made his further application for an assessment in Mr McCulloch's presence.

   c)The grant of legal aid was not made until 20 November 2013.[17]

   d)The Applicant attended the next monthly advice session at (omitted) on 5 December 2013 and completed the documents.

   e)Mr McCulloch was unable to file the documents on the Portal on 6 December 2013 so decided to file the documents personally on 10 December. The Registry refused the documents because the Registry Clerk believed that a financial statement was required.  This was incorrect according to the Rules but delayed the filing by a further several days.[18]

   [17] Annexure B to affidavit of Mr McCulloch sworn on 2 April 2014

   [18] Annexure C to affidavit of Mr McCulloch sworn on 2 April 2014

Evidence in support of applications for declarations

1. The Applicant deposes to the Mother and the Respondent having a relationship which ended in early 2006.  As already noted, the Applicant believes that A and B are children of that relationship.  The Applicant had a relationship with the mother from late 2006 until August 2008.  Z was born on (omitted) 2008 and is a child of their relationship. 

2. The Applicant deposes to assisting the Mother and the Respondent in relation to parenting arrangements for B and A. The Applicant ended his relationship with the mother in August 2008.  Later in 2008, the Applicant took Z several times to visit the Mother at the (omitted) where the Mother was living at the time, and witnessed the Respondent leaving the Mother's motel room a number of times. The Applicant did not accept the Mother's denial that she had resumed a relationship with the Respondent. The Mother became pregnant with the twins in or about Christmas 2008. The twins were born prematurely at 26 weeks on (omitted) 2009, and a day after their birth placed in the care of the Department of Family and Community Services.  The Mother told the Department that she did not know whether the biological father of the twins was the Applicant or the Respondent: "Mr Stevenson" or "Mr Bothwell".[19] The twins were not discharged from hospital until 10 October 2009 when they were placed in the Applicant's care. 

   [19]  Annexure A to Father’s affidavit sworn on 5 December 2013 

3. The Applicant deposes to the Mother telling him privately that the twins' father was the Respondent, not him. During the care proceedings in 2009/2010, the Department requested both the Applicant and Respondent to undertake DNA testing to determine the twins' paternity. By test result issued on 21 October 2009, the Applicant was excluded as the biological father.  The Respondent declined to undertake the test.  The Applicant says the Department advised him to apply for an Order for sole parental responsibility and for the twins to live with him. He obtained an interim order on 7 September 2009 from the Federal Magistrates Court for the twins to live with him. The Department and the Mother were the other parties. On 18 June 2010, the Federal Magistrates Court made final orders for the Applicant to have sole parental responsibility and for the twins to live with him.[20] The Applicant deposes to receiving letters from the Department advising of his eligibility to apply for a child support assessment. [21]

   [20] Annexure E to Father’s affidavit sworn on 5 December 2013

   [21] Annexure F to Father’s affidavit sworn on 5 December 2013

4. The Respondent has been identified on the Department files as "possibly fathering" the twins, and the Department has supported the Applicant's efforts to resolve the paternity of the twins.[22]

   [22] Annexure I to Father’s affidavit sworn on 5 December 2013

5. The Applicant is recognised by the Department as a relative/kinship carer providing full time care for the twins.[23]

   [23] Annexure J to Father’s affidavit sworn on 5 December 2013

Discussion and Determination  

1. I have earlier set out the Applicant's evidence in relation to the Application being filed out of time.  I am persuaded leave should be granted from the time of the Applicant's first application to the Agency in early 2011 for these reasons: 

   a)I find the Applicant's explanation for the delay in initiating proceedings from the time of his first application for an assessment and its rejection, adequate. 

   b)The Applicant made out a strong case for the declarations sought.  I am satisfied that the Respondent is likely to be the father of the twins. 

   c)I find that the hardship that would be caused the Applicant if leave were not granted from the time of the first application, outweighs any prejudice to the Respondent if leave were granted.  As noted below, I find the Applicant is of modest financial means. He has had the care of the twins since they were first discharged from hospital at 3 months of age and has taken full responsibility for their welfare including for their financial support since that time. He has endeavoured to engage the Respondent in discussions about the twins' welfare and future needs from shortly after the twins being in his care. The Respondent has chosen to ignore the Applicant's efforts to resolve the matter amicably. 

   d)The Respondent has chosen not to comply with orders of this Court which would have resolved the issue of paternity, or to provide any evidence in the proceedings, despite ample opportunity to do so. 

   e)The principal object of the Child Support (Assessment) Act 1989 is to ensure that Children receive a proper level of financial support from their parents.[24] 

   [24] Section 4(1) of the Child Support (Assessment) Act 1989

2. As already noted, the Respondent consented to an order on 7 February 2014 that he participate in DNA testing. He failed to comply with that order without explanation. Where the Court makes an order that the putative father take part in DNA testing and he does not comply, section 69Y(2) of the Family Law Act 1975 provides that:

   The Court may draw such inferences from the contravention as appear just in the circumstances.

3. The High Court in G v H [1994] HCA 48 determined that a "just" inference could be drawn that it was more probable than not that the outcome of the Court ordered test would not have been favourable to a party who disputed paternity and failed to comply with an order for DNA testing.  That resulted in a finding on the balance of probabilities that the non-complying party was the father of the child.  

4. The Respondent has been given the opportunity to put the issue of paternity beyond doubt by submitting to the DNA test ordered by this Court. I am satisfied that his failure to comply with the order for DNA testing gives rise to a 'just' inference that the outcome of the test would not have been favourable to him. 

1. I find the Applicant's evidence that the twins' mother told him that "Mr Bothwell" is the father, that he saw the Respondent with the mother on several occasions during the period conception is likely to have occurred and that the Department noted that the Respondent may be the twins' father, adds considerable weight to the likelihood that the Respondent is the biological father.[25]  In addition, the Respondent failed to comply with the request of the Department of Family and Community Services for paternity testing in 2009/10.

   [25]   Letsos & Vakros [2012] FamCAFC 40

2. The Child Support Registrar refused to issue a child support assessment on the two occasions the Applicant made his application for an assessment only because the Registrar was not satisfied that the person from whom the child support was sought was a parent of the children. [Section 106A(1) of the Assessment Act].[26]

   [26]   Annexures G and K of the Applicant’s affidavit sworn on 5 December 2013

3. I am satisfied that the Respondent should be assessed in respect of the costs of the children because the Respondent is a parent. 

4. The Applicant also seeks a declaration under s.69VA of the Family Law Act because he may wish to have the Respondent's name included on the children's birth certificates and he wants the children to be able to identify with and know the identity of their biological father and increase their opportunity to establish a relationship with the Mother's and the Respondent's other two children, the twins' half siblings. The Applicant would also like to assist the twins to develop a relative relationship with the parents of the Respondent (their paternal grandparents) and other paternal relatives. I am satisfied a section 69VA declaration should be made.

Costs

1. The Applicant seeks costs in the sum of $500 if his application is successful. 

2. The question of costs is governed by section 117 of the Family Law Act 1975. 

3. The Applicant has not been employed since the twins came into his care in October 2009, but plans to shortly commence employment in (omitted). He has depended on a foster carer's allowance for the past 2 years and has otherwise relied on Centrelink benefits for his and the children's support.  The Applicant owns a car of modest value and has limited savings, but has no other assets. 

4. As the Respondent has not participated in the proceedings since the first return date, there is no evidence before me as to his financial circumstances and I can have no regard to his financial position. 

5. The Applicant and his solicitor have been required to attend court on 3 separate occasions, and the Application has been wholly successful. I agree with Mr McCulloch's submission that the costs sought by the applicant are extremely modest and well under the costs which could have been claimed in accordance with Schedule 1 of the Federal Circuit Court Rules 2001. 

6. The Applicant was represented by the Legal Aid Commission, a publicly funded body and as a matter of public policy, its costs should be recovered wherever possible.

7. In all these circumstances, I have decided it is just for an order for costs to be made in the sum of $500, as sought by the Applicant. 

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Sexton

Associate:

Date:       14 July 2014