V & V
[2002] FMCAfam 408
•19 November 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| V & V | [2002] FMCAfam 408 |
| FAMILY LAW – Child support – application for extension of time in which to seek a declaration pursuant to s.107 of the Child Support (Assessment) Act 1989 on the ground that the Applicant is not the biological parent – extension of time granted – factors taken into account in the exercise of discretion. |
| Applicant: | B V |
| Respondent: | V V |
| File No: | (P)MLM 8040 of 2002 |
| Delivered on: | 19 November 2002 |
| Delivered at: | Melbourne |
| Hearing Date: | 19 November 2002 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Mr D. McSteen |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondent: | Ms V. V appeared on her own behalf |
| Solicitors for the Respondent: | In person |
ORDERS
IT IS ORDERED
THAT pursuant to Order 31 Rule B(10) of the Family Law Rules, the time in which the Applicant has to file and Application pursuant to Section 107 of the Child Support (Assessment) Act 1989 be extended to 17 September 2002.
IT IS DECLARED
THAT pursuant to Section 107 of the Child Support (Assessment) Act 1989 the Respondent V V is not a person entitled to an Administrative Assessment of child support payable by the Applicant for the child
L J V born 25 February 1994.
IT IS FURTHER ORDERED
THAT the Applicant’s Application pursuant to Section 143 of the Child Support (Assessment) Act 1989 be adjourned to 14 January 2003 at 10.00am for hearing in the Child Support List.
THAT the Respondent file and serve a Financial Statement and any Application pursuant to Section 66M of the Family Law Act 1975 which she intends to file on or before 4.00pm on 3 January 2003.
THAT the reasons for judgment be transcribed and a copy be provided to each of the parties.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
(P)MLM 8040 of 2002
| B V |
Applicant
And
| V V |
Respondent
REASONS FOR JUDGMENT
I am dealing this morning with an application by the husband pursuant to the Child Support Assessment Act in relation to the child L J V born 25 February 1994. The husband is represented and the wife appears in person. The Applicant and Respondent were married on 13 December 1987 and separated in December 2000
The application by the husband seeks firstly, an order pursuant to order 31B rule 10 of the Family Law Rules, which apply in these proceedings, to extend the time in which he can make application. The application that he then makes is that the court make a declaration pursuant to section 107 of the Child Support Assessment Act that the respondent is not a person entitled to an administrative assessment of child support for the child, L J V, who was born 25 February 1994 on the ground that he is not the biological parent of the child.
He then seeks that pursuant to section 143 of the Child Support Assessment Act the respondent repay to him money that he has paid for child support and that she pay his costs.
The matter that I have to determine first is whether there should be an extension of time to make the application.
Order 31B of the Family Law Rules relates to child support applications. Rule 10 deals with applications for a declaration under section 106, 106A or 107(1) of the Child Support Assessment Act. This application, if time is extended, would be an application under section 107(1).
Rule 10(2) deals with time limits relating to an application where the applicant alleges he is not the biological parent of the child (which is what is alleged here) and says:
(a)however, if the ground on which the application seeks a declaration under subsection 107(1) of the assessment act is made is that the applicant is not the parent of the child concerned, the application must be filed (a) within 28 days after receipt by the applicant of the notice given under section 34 of that act; or
(b) within such further time as the court allows.
It is common ground that the application was not made within 28 days and accordingly the Applicant seeks that the court exercise its discretion to allow further time for the application to be made.
In considering whether to extend the time in other matters under the Family Law Act and other legislation there are generally three basic principles to which a court would have regard. They are first the reasons for the delay; secondly, whether the application itself has any merit this is where a prima facie case has been made out, whether there would be any prejudice to the respondent or whether there would be any hardship to the applicant if the time were or were not extended. In addition the Court would normally consider any other relevant matters.
These general principles, in my view, have to give way to some extent to the nature of these applications and to the regime established by the Child Support Assessment Act.
The regime established by the Child Support Assessment Act provides for administrative assessment of child support in certain circumstances. The person entitled to child support has to satisfy the provisions of the Act that they are an eligible carer and section 29 deals with the Registrar requiring to be satisfied as to who is a parent of the child if a carer application is made to the Registrar.
Section 29(2) sets out a number of grounds upon which the Registrar can be satisfied and accordingly, make an assessment of child support. The matters set out in that subsection are really presumptions and section 29(3) says that:
If two or more paragraphs of subsection (2) are relevant to a particular application and (b) those paragraphs or some of them conflict with each other the paragraph that appears to the registrar to be the more or most likely to be the correct presumption prevails.
Those presumptions include in subparagraph
(a)that the person is or was a party to a marriage and the child was born to the person or the other party of the marriage during the marriage or;
(b) that the person's name is entered on the register of births or parentage information kept under the law of the Commonwealth, of a state or territory or prescribed overseas jurisdiction as the parent of the child.
There are other presumptions but it is clear that in this case both (a) and (b) would have applied and accordingly the Child Support Registrar was entitled to issue an administrative assessment of child support.
Subsection 107 of the Child Support Assessment Act provides that:
Where the registrar accepts a carer application for administrative assessment of child support for a child the person from whom the application sought payment of child support may, subject to subsection (1)(a) apply to a court having jurisdiction under this act for a declaration that the applicant was not entitled to administrative assessment of child support for the child payable by the person.
In this case the basis upon which the application is made or sought to be made under section 107 is that the husband, against whom an assessment has been made, is not the biological parent of the child, but before the Court can consider whether or not a declaration should be made, the Applicant must obtain from the Court an extension of time in which to bring the Application.
I turn first to the reasons for the delay. Each of the parties gave some evidence in relation to these matters and there was some cross-examination of each.
It is common ground that the parties separated in December 2000 and it is common ground that an assessment dated 16 January 2001 was made. This was the date upon which under section 34 of the Assessment Act notice was given and is the date from which the
28-day period runs.
It is thus common ground that the application which was made in September 2002 is approximately 19 months out of time. There is a significant dispute between the parties as to the reasons for the delay.
These Applications which are now coming before the court with some frequency are unfortunate matters. They often arise in cases where the parties have lived together for some time as a family and where children have been brought up to believe that the father is their biological father they have an emotional attachment to that parent which is reciprocated.
Acceptance by a party that they are not the biological parent understandably causes enormous ructions in the lives of both the parties and of the child or children involved. I have no doubt that this is the case in this family and it is most unfortunate. However, the clock cannot now be turned back.
The wife's case is that there is really no adequate or satisfactory reason to explain the delay in bringing the proceedings, other than what she says is the failure of her to accept the husband back into the marriage which caused him to then bring this application.
She says that it was clear at an early stage of their marriage that there were problems conceiving, that they had advice from a doctor and had numerous attempts at IVF treatment which were unsuccessful. She says that it was made clear to the parties that the husband would be unable to father any children and that they were left in no doubt by the advice that they got, she says, and that the IVF treatment was largely donor insemination which corroborates the fact that the husband was unable to conceive.
She says in addition that there was a discussion between them at one point after they had accepted that the IVF treatment was unlikely to be successful, in which the suggestion that the wife sleep with someone else to become pregnant was put forward. The husband denies that conversation ever took place.
The wife then says that the husband was at all times aware that he was not the father of L and could not have been, but that she was accepted without further question as his child and treated as such and that the present application was only brought about by her failure to accept the resumption of their relationship.
The husband says that it was not as clear as the wife suggests that they could not conceive and that they were offered some hope that conception might occur. He also says in his evidence that he was pleased when L was born and although there were clearly some doubts about his capacity to have been the father, that he was not prepared to entertain those doubts and accepted that he was the father and perhaps, it seems to me, on his version at least, failed, for an understandable reason, to acknowledge that he might not be.
It is common ground that there was no step taken at all by the father for approximately 12 months. The father says that when they separated in December 2000 he had found condoms in the bedroom which were not his and he says that he was told by the wife again, having been told previously, that the child was not his. He says that although he was told the child was his when she was born, later on during the course of arguments between them he was told that she was not his child. This is denied by the wife.
The father says that he took no steps for the first 12 months, that he had a good relationship with the child and did not want to take any steps. At about December last year he says that he went to get some legal advice about what he could do and was told by a friend that he should do something. He says that he was still hoping that she would turn out to be his biological child. His legal advice included advice as to what he should do to obtain a parenting test, for the purposes I infer, of challenging the Child Support Assessment.
I am satisfied from his evidence that what he did thereafter, from his point of view at least, was consistent with a desire to challenge the assessment and although it took some time for him to actually obtain a parentage test - which was obtained without the involvement or consent of the mother - he did work his way through the process without undue delay.
So that in my view the question that I really have to look at is whether there was an undue delay and any reason for the delay in essentially the first 11 months after separation.
I do not find the husband's evidence particularly convincing as to why he did not take any steps in the first 11-month period.
Having heard from both parties, I prefer the mother's evidence in this regard and find that it is more likely than not the issue came to a head because there was no reconciliation between the parties and the father decided at that time that he would dispute the parentage.
Whether or not he was satisfied that he was not the father, or entertained some doubts, seems to me is not a vital issue for determination. It would be difficult for a court to determine whether someone harboured doubts in circumstances in which those doubts would cause him to believe that he might not be the father of the child with whom he had a relationship.
I do accept, however, that it is more likely that the decision by the father to raise the issue of parentage was brought about by the wife's refusal to return to him than any other matter or any lingering doubts that he might have had.
I also accept the wife's evidence that she was not invited to participate in the parentage test, although from her evidence it is quite clear that she did not think a test was necessary in any event.
I am also satisfied that the wife did not know about the application or that at least an application had formally been made until she was served with the application. But again, as I have said, I am satisfied that the husband, at least after December, worked his way through the requirements in a more or less expeditious manner.
The effect of my findings is that I am not entirely satisfied that there are adequate reasons for the delay between the date of separation and the end of the year. However, as I have indicated, there are other matters that I must consider. Reasons for delay are not necessarily the most important issue in considering whether an extension of time should be granted. In this case I need also to look at the question of merit and the question of prejudice to the wife.
As far as merit is concerned, it is conceded by the wife that the husband is not the father of L.
As I have indicated, the parentage test was obtained without her consent and might, if it had been a disputed issue in this case, have been the subject of objection as to its evidentiary value. There might otherwise have been an issue about merit, but the concession made by the wife and indeed, the basis on which her response is put makes it clear that she accepts the Applicant is not the biological father.
That being the case, and as biological parentage is the basis upon which the child support assessment is made, it is clear that his application, insofar as it seeks a declaration that he is not the parent, must succeed and clearly there is merit in the case.
Thirdly, I would consider whether there is any prejudice to the wife. Given that there is no issue about the merit of the case, it may not be necessary to consider prejudice and I do so with some caution in the sense that the Child Support Assessment Act is a piece of legislation which sets out a legislative framework and in a sense a strict structure for circumstances in which child support can be assessed. One of those matters is whether a party is a biological parent.
If a declaration is made that the Respondent is not entitled to child support, the Applicant seeks that the Respondent repay child support paid by him. Whether or not payment should be ordered is a matter within the discretion of the Court.
Furthermore, under s.66M of the Family Law Act a step-parent has a duty of maintaining a child in circumstances in which the court makes an order. The relevant considerations that the court would have to take into account in considering whether to make an order include the length and circumstances of the marriage to the relevant parent of the child, the relationship that existed between the step-parent and the child and the arrangements that have existed for the child and special circumstances which, if not taken into account, would result in injustice or undue hardship to any person.
As a result of the provisions of the Family Law Act in relation to step-parenting, it seems to me that it is open to the wife to bring an application for a step-parenting under section 66M of the Act. Of course, whether or not the court makes an order is a matter for discretion, taking into account the matters that I have raised.
Having regard to the discretion of the Court in such matters and the discretion in the application of s.143 of the Child Support (Assessment) Act 1989, I am not satisfied that any prejudice to the Wife in extending the time in which to seek a declaration and consequential orders outweighs other matters, particularly the declaration itself.
Having regard to those matters and particularly to the merits of the case I am satisfied that despite the lack of reasonable explanation for the delay that the time in which the application for a declaration and other orders be made should be extended until the date of the application which was 17 September 2002.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 24 December 2002
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