Tye & Fucilla
[2021] FedCFamC1F 75
•9 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
Tye & Fucilla [2021] FedCFamC1F 75
File number(s): BRC 6040 of 2019 Judgment of: BAUMANN J Date of judgment: 9 September 2021 Catchwords: FAMILY LAW – CHILD SUPPORT – Where the Court has previously declared that the Applicant should not be assessed for child support, and that pursuant to s 111C of the Child Support (Registration and Collection) Act 1988 (Cth) the collection of child support arrears be stayed – Where the Applicant has been excluded as the biological father of the child – Applicant should be entitled to recover child support paid pursuant to s 143 of the Child Support (Assessment) Act 1989 (Cth)
COSTS – Order for the Respondent to make a contribution to the costs of the Applicant
Legislation: Child Support (Assessment) Act 1989 (Cth) ss 107, 143
Child Support (Registration and Collection) Act 1988 (Cth) s 111C
Family Law Act 1975 (Cth) ss 69W, 117
Cases cited: Kohan & Kohan (1993) FLC 92-340 Division: Division 1 First Instance Number of paragraphs: 30 Date of hearing: 9 September 2021 Solicitor for the Applicant: TBJ Law Pty Ltd The Respondent: The Respondent did not appear ORDERS
BRC 6040 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TYE
Applicant
AND: MS FUCILLA
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
9 SEPTEMBER 2021
THE COURT ORDERS ON A FINAL BASIS:
1.That the Applicant be entitled to recover the sum of $40,287.65 from the Respondent pursuant to s 143 of the Child Support (Assessment) Act 1989 (Cth).
2.That within sixty (60) days, the Respondent shall make a contribution to the costs of the Applicant in the fixed sum $8500.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tye & Fucilla has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BAUMANN J:
The Applicant, Mr Tye, now aged 46 years, cohabitated with the Respondent, Ms Fucilla (“the mother”), now aged 47 years, from January 2001 and separated in November 2007. They married in 2006.
The parties are the parents of X, now aged 18 years. The birth of the child, Y (“the child”) in 2005 – before the parties married – created a rebuttable presumption that the Applicant was the biological father of the child.
It appears that the Applicant harboured some concerns post-separation whether he was the biological father of the child. He had been assessed to pay child support from 11 March 2008 upon the application of the mother, and had paid child support from that date.
On 28 May 2019, the Applicant commenced proceedings in the Federal Circuit Court of Australia in Brisbane (the Registry closest to where the mother was known to be living), seeking on an interim basis, an order pursuant to s 69W of the Family Law Act1975 (Cth) (“the Family Law Act”) for paternity testing.
The mother has never filed a Response to any of the Applications or Applications in a Case filed by the Applicant, nor has she always appeared before the Court. On 15 August 2019, a Judge of the Federal Circuit Court ordered that both parties (and the child) undergo a paternity test to ascertain whether the Applicant was the biological father of the child.
The Applicant provided the bodily sample on 16 September 2019, and the mother and child provided bodily samples for analysis on 14 November 2019. Sadly, as long ago as 21 November 2019, the parties and the Court were aware that the results of the paternity testing excluded the Applicant as the biological father of the child.
On 27 November 2019, a Judge of the Federal Circuit Court declared that pursuant to s 107 of the Child Support (Assessment) Act 1989 (Cth) (“the Child Support (Assessment) Act”), the Applicant should not be assessed for child support, and further ordered pursuant to s 111C of the Child Support (Registration and Collection) Act 1988 (Cth) that the collection of child support arrears accumulated up to and including 26 November 2019, payable by the Applicant, be stayed.
A certificate dated 20 November 2019, issuing from B Genetics attested to the fact that the Applicant was excluded as the biological father of the child. The mother appeared by telephone before the Court on 27 November 2019, and I infer, was aware of the orders and declarations made on that day.
The mother had been given four months (to 20 March 2020) to file and serve a Response. She has never done so. For reasons not immediately apparent to me, the proceedings were transferred to the Family Court of Australia on 17 July 2020, after which (equally unexplained) the matter was continually adjourned until the Registrar ordered on 6 July 2021 that the proceedings be placed on the trial list to await allocation of trial dates.
As Case Management Judge, I became aware of the troubled history of this matter; listed it for Case Management Hearing before me on 13 August 2021, and now we are hearing from the solicitor for the Applicant, Mr Xynas, today for an Undefended Hearing.
I am satisfied that personal service upon the mother of the documents set out in Order 2 of the Order made 13 August 2021 was effected on 6 September 2021 pursuant to the affidavit of service filed 8 September 2021.
The mother has been called today and has failed to appear. I am satisfied she is aware of the orders being sought by the applicant today, being essentially:
(a)Pursuant to s 143 of the Child Support (Assessment) Act, the mother reimburse the Applicant for child support payments made for the child, for the period from 11 March 2008 to 26 November 2019, totalling the sum of $40,287.65; and
(b)Pursuant to s 117 of the Family Law Act, the Respondent pay to the Applicant costs of disbursements estimated as follows:
(i)paternity test procedure tests of $790 (pursuant to the Order made 15 August 2019)
(ii)costs on an indemnity basis in the sum of $8090; or in the alternative, costs based on the appropriate scale of fees totalling $6570.91; and
(iii)additional disbursements of $532.10.
The cost estimates are taken from the affidavit of the Applicant’s solicitor, Mr Xynas, filed 25 August 2021. Mr Xynas conceded today that the Application did not include any details of the costs agreement that founded the indemnity cost qualification, which I infer exists between the legal firm and his client, the Applicant.
I am satisfied that the mother was also personally served on 6 September 2021 with a copy of Mr Xynas’ affidavit.
I note the mother was served at an address in Suburb C, which is only about 50 kilometres from the Court. No explanation, where no restrictions on travel apply at this time in Queensland, has been offered by the mother for her failure to appear before the Court today, or even to seek to appear by telephone.
THE LAW.
S143(1) of the Child Support (Assessment) Act provides:
(1)An amount may be recovered from a person (the payee) in a court having jurisdiction under this Act if:
(a) both of the following apply in relation to the amount:
(i)the amount was an amount of child support paid by another person (the payer) to the payee;
(ii)the payer is not liable, or subsequently becomes not liable, to pay the amount to the payee, except because the payer ceases to be a resident of Australia or a reciprocating jurisdiction; or
(b) both of the following apply in relation to the amount:
(i)the amount was paid by another person (the payer) under a registered maintenance liability to the payee;
(ii)the payee was not entitled to be paid the amount because of a decision that the registered maintenance liability should never have existed.
By s 143(3) of the Child Support (Assessment) Act, court may make such orders in relation to the mother:
…as it considers just and equitable for the purposes of adjusting, or giving effect to, the rights of the parties and of the child concerned.
A court, in exercising its discretion, is required to have regard to the matters set out in s 143(3B) of the Child Support (Assessment) Act, which provides as follows.
(3B)For the purposes of subsection (3A), the court must have regard to the following matters:
(a)whether the payee or the payer knew or suspected, or should reasonably have known or suspected, that the payer was not a parent of the child;
(b)whether the payee or the payer engaged in any conduct (by act or omission) that directly or indirectly resulted in the application for administrative assessment of child support for the child being accepted by the Registrar;
(ba)whether there was any delay by the payer in applying for a finding by a court that the payer is not a parent of the child;
(c)whether there was any delay by the payer in applying under section 107 for a declaration once he or she knew, or should reasonably have known, that he or she was not a parent of the child;
(d)whether there is any other child support that is, or may become, payable to the payee for the child by the person who is a parent of the child;
(e)the relationship between the payer and the child;
(f)the financial circumstances of the payee and the payer.
Dealing with these considerations, I make the following findings based on two affidavits sworn by the Applicant and filed on 28 May 2019 and 8 January 2021 (having already noted to Mr Xynas today that there was almost a repetition, word for word, in the latter affidavit to the first affidavit), namely:
(a)The Applicant is in full-time employment, and separated from the mother around November 2007, when the child was two years of age;
(b)The Applicant has only seen the child once since November 2007, when there was a need for him to sign a passport application;
(c)Since around 2008 and onwards, the Applicant has been paying child support, and he had personally sought consent from the mother to undertake a paternity test (see paragraph 50 of the affidavit filed 25 May 2019). The mother reused to give her consent, which caused the father to file his Initiating Application on 28 May 2019;
(d)Although it seems the Applicant had some concerns he may not have been the biological father of the child arising from the relationship issues described at paragraphs 19 to 36 of his said affidavit, he in particular deposes to raising with the mother whether she was in a relationship with a person named Mr D (“Mr D”) before separation. The mother had travelled to Melbourne with Mr D in late 2004 for a period of three weeks. When the mother returned from Melbourne, the Applicant confronted her about what was going on between her and Mr D. The Applicant says, and I accept, the mother “refused to confirm or deny the existence of a relationship with Mr D” but did inform the Applicant that “Mr D was incapable of having children”. I note that the birth of the child in mid-2005 means the child was probably conceived in the latter part of 2004, around the time the mother was travelling with Mr D to Melbourne; and
(e)In December 2008, the parties’ eldest child X informed the applicant that the mother had readily told him Mr D was Y’s biological father, and that earlier, during a Christmas function in 2017, the Applicant’s sister, Ms E, informed the Applicant that the mother had informed her that Mr D was Y’s biological father.
All this evidence remains unchallenged, with the mother having had ample opportunity to respond to the Applicant’s affidavits, and in fact, has been directed by Court Orders on at least two occasions to do so, without any compliance by her.
CONCLUSION
Although the Applicant could be criticised for not bringing his application for paternity testing earlier than he did, I take into account on the unchallenged evidence of the Applicant, and infer the mother had a reasonable belief that the Applicant was not the biological father of the child and took no steps to inform the Child Support Agency of her belief.
Instead, she made application for administrative assessment of child support on the basis the applicant was the biological father and continued to receive and collect child support from 11 March 2008.
The mother has chosen to offer no evidence to explain her actions and conduct. The court has no evidence whether another male person has provided the mother with financial support for the child. In so finding, of course, the Court has no evidence that Mr D is actually the biological father of the child.
Nonetheless, I am satisfied on the facts of this case that the mother has engaged in conduct which both allowed the assessment of issue, and then happily received and used child support from the Applicant for years, when she at least had a reasonable belief he was not the biological father and therefore, not a liable parent under the Child Support (Assessment) Act.
I accept that the mother and - I infer with the mother’s assistance - the child did undertake the paternity testing in November 2019. I give her some credit for that compliance with Court orders which meant that delaying the determination of the Applicant’s liability under the Child Support (Assessment) Act was avoided.
However, I am satisfied the Applicant should be entitled to recover the sum of $40,287.65 from the mother, pursuant to s 143 of the Child Support (Assessment) Act, and will so order.
The usual rule in proceedings based under the Family Law Act and in child support proceedings is that each party bears their own costs (s 117(1) of the Family Law Act). However, if the circumstances justify an order for costs, and after consideration of the relevant s 117(2) factors, a Court may make such orders for costs as it deems to be just.
I am satisfied that although I have no evidence as to the mother’s financial position (s117(2A)(a) of the Family Law Act), and the Applicant’s financial position is modest (see his financial statement filed 8 January 2021), an order for costs should be made at least because:
(a)the mother has been “wholly unsuccessful” in the respect of the Applications launched by the Applicant; and
(b)the mother’s conduct in failing to comply with directions and participate in the proceedings, once commenced, has prolonged the proceedings and caused the Applicant to incur further and additional costs.
I am not satisfied that the Applicant has demonstrated the exceptional circumstances to justify an order for costs on an indemnity basis (See Kohan & Kohan (1993) FLC 92-340 and the authorities thereafter). I propose to fix costs, including claimed disbursements, allowing for the costs of service, which Mr Xynas today said would be in the region of $200.
I also make allowance for the preparation for an appearance before me today by the solicitor for the Applicant. I therefore assess that it is appropriate that the mother shall, within 60 days, make a contribution to the costs of the Applicant, fixed in the sum of $8500.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 29 September 2021
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