W and H
[2004] FMCAfam 28
•20 January 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| W & H | [2004] FMCAfam 28 |
| CHILD SUPPORT – Parentage testing – applicant not the father of child – application for declaration. COSTS – Circumstances to justify order. Family Law Act 1975 (Cth), s.69VA |
| Applicant: | M A W |
| Respondent: | L H |
| File No: | PAM 2153 of 2003 |
| Delivered on: | 20 January 2004 |
| Delivered at: | Parramatta |
| Hearing Date: | 20 January 2004 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitor for the Applicant: | Ms Gore |
| Solicitors for the Applicant: | Browns the Family Lawyers |
There was no appearance by or on behalf of the Respondent.
DECLARATIONS
Pursuant to section 69VA of the Family Law Act 1975, the Applicant M A W is not the father of the child R M H W born 20 August 1992.
Pursuant to section 107 of the Child Support (Assessment) Act 1989, the Respondent, L H, is not entitled to an administrative assessment of child support for the child R M H W born 20 August 1992.
Pursuant to section 143 of the Child Support (Assessment) Act 1989, all amounts paid by the applicant pursuant to an assessment of Child Support may be refunded to the applicant.
I order that the Respondent is to pay the Applicant's costs of these proceedings in the sum of $4205. 00.
The Application is removed from the Pending Cases List.
FEDERAL MAGISTRATES |
PAM 2153 of 2003
| M A W |
Applicant
And
| L H |
Respondent
DRAFT REASONS FOR JUDGMENT
Application
The application before the Court is an application for a declaration pursuant to section 107 of the Child Support (Assessment) Act 1989, that the respondent is not entitled to an administrative assessment of child support in respect of a child called R who was born on
20 August 1992.
The application was commenced in May 2003, and considerable difficulties were experienced in locating the Respondent in order to serve a copy of the proceedings on her.
Eventually an order was made for substituted service on 22 July 2003, and service was effected by forwarding copies of the application by post to the Child Support Agency.
The service was successful in at least bringing the matter to the attention of the Respondent, who entered into Terms of Settlement on an interim basis, agreeing to provide the appropriate bodily samples for the purpose of parentage testing. Those orders were made by me on
9 September 2003.
Parentage testing has since been completed. The Respondent, however, has not chosen to attend Court and I have elected to proceed in her absence.
The parentage test, or the DNA test undertaken by Silbase Scientific Services is most informative. The Report, which has been admitted into evidence, is under the hand of one T M L, Senior Scientist.
The Report, in summary, excludes the Applicant from identification as the father of the child R.
The Respondent has also provided to the Applicant a statutory declaration in which she says:
I do not identify M A W as the father of my son R M H W, born
20 August 1992.
Whilst there is evidence that there was a relationship between the Applicant and the Respondent at the appropriate time, I am satisfied that the DNA test results supported by the statutory declaration from the Respondent, together proved to the civil standard that the Applicant is not the father of the child R.
If he is not the father, and as the evidence shows, Ms Gore quite appropriately submits, there has not been a relationship akin to that parent, then it would follow that this Applicant is not the person who should be obliged to make payments of child support, and I would comment that the Applicant has given evidence that there has been no meeting with the child for about nine years.
Accordingly, I make the declarations set out at the commencement of this decision
Costs
The Applicant further seeks an order for costs.
I am satisfied that I should make an order that the Respondent is to pay the Applicant's costs of these proceedings. I am satisfied that I should make that order because the Applicant has been wholly successful. The matter could have been settled on an earlier occasion. It could have been settled either at the time the interim orders were made about DNA testing, or it could have been settled once the DNA tests were made available.
I am prepared to allow lump sum costs, $1365, as set out in stage 1, together with a grand total of seven mentions.
I will allow disbursements in the sum of $825.
The Orders that I propose to make are set out at the commencement of this decision.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 21 January 2004
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