Wetherill & Alistro
[2024] FedCFamC2F 697
•21 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wetherill & Alistro [2024] FedCFamC2F 697
File number(s): MLC 13623 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 21 May 2024 Catchwords: FAMILY LAW – Parenting – Declaration of parentage – Child support – Where Mother seeks leave to file application for assessment of child support out of time – Whether to proceed ex parte – Where Father has not participated in the proceedings – Pre-action procedures do not apply Legislation: Child Support (Assessment) Act 1989 s 29(2)(h), s 106A(5)(a)
Family Law Act 1975 (Cth) ss 60I, 69VA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 4.01
Division: Division 2 Family Law Number of paragraphs: 25 Date of hearing: 21 May 2024 Place: Melbourne Counsel for the Applicant: Ms Stoilkovska Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondent: The Respondent did not appear ORDERS
MLC 13623 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WETHERILL
Applicant
AND: MR ALISTRO
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
21 MAY 2024
THE COURT DECLARES THAT:
1.Pursuant to s. 69VA of the Family Law Act 1975 there be a declaration that MR ALISTRO (‘the Father’) is a parent of the children, X, born in 2021 and Y, born in 2022.
THE COURT ORDERS THAT:
2.Pursuant to s. 106A(5)(a) of the Child Support (Assessment) Act 1989, there be a declaration that MS WETHERILL (‘the Mother’) is entitled to administrative assessment of child support for the children, X, born in 2021 and Y, born in 2022 because MR ALISTRO is a parent of the children.
3.Pursuant to Rule 15.06 of the Family Law Rules 2021, the Applicant be granted leave to file the Initiating Application out of time.
4.The Mother do all acts and things to bring a copy of these orders to the attention of the Father via email.
AND THE COURT NOTES THAT:
A.Pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the Court may vary or set aside a judgment or order made in the absence of a party.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and/or passages of authorities and evidence added, and an attempt has been made to make the orally delivered reasons easier to read, but the substance is unchanged.
In the matter of Wetherill & Alistro, Ms Wetherill (‘the Mother’) makes an application against the Respondent, Mr Alistro (‘the Father’) for the following orders. These orders sought by the Mother were emailed to Chambers prior to the hearing and marked exhibit A and placed on the Court file.
1.Pursuant to Rule 15.06 of the Family Law Rules 2021, the Applicant be granted leave to file the Initiating Application out of time.
2.Pursuant to Section 69VA of the Family Law Act 1975 there be a declaration that [MR ALISTRO] is a parent of the children, [X] born [in] 2021 and [Y] born [in] 2022.
3.Pursuant to Section 106A(5)(a) of the Child Support (Assessment) Act 1989, there be a declaration that [MS WETHERILL] is entitled to administrative assessment of child support for the children, [X] born [in] 2021 and [Y] born [in] 2022 because [MR ALISTRO] is a parent of the children.
4.The Respondent pay the costs of this application being the Victoria Legal Aid lump sum fee of $2,496.00 within 28 days
Background
The Mother is 29 years old and is engaged full-time in the care of two children, X, aged two years, and Y, aged one year. The Mother has an older child with the Father, Z, who is five. The Mother and Father lived together in a de facto relationship from about late 2017 until about June of 2019. In that time, they had moved from New Zealand to live at Town B in New South Wales. In this case now, the Mother seeks the orders that I have set out above. She seeks those orders because she is dependent upon social security benefits, and it is a requirement of those benefits that she do all things she reasonably can to obtain child support.
Issues for determination
The first question I must determine is whether to proceed in the absence of the Father. The Mother appeared by counsel this morning, Ms Stoilkovska, instructed by Legal Aid Victoria, where the Mother’s solicitor was Ms Georgia Millen, working at Legal Aid Victoria. I accept what Ms Stoilkovska told me from the bar table: that she attempted to telephone the Father yesterday and again this morning to alert him or remind him about this court case.
In addition, I am satisfied from the careful affidavit drawn by Ms Millen, sworn and filed on 22 November 2023, and the affidavits of service filed 20 December 2023 and 6 March 2024, that the various necessary documents in these proceedings – applications, affidavits, certificates of genuine steps, copies of court orders – have been provided by Ms Millen to the Father at his known email address. I am also satisfied the Father was notified by text message at his known mobile phone number; and also by private message on his social media account.
I am satisfied (because of the matters addressed in the Mother’s affidavit of 22 November 2023) that the mobile phone number is, in fact, the Father’s mobile phone number. I am also satisfied that the email address said to be the Father’s is, in fact, the Father’s email address. I am also satisfied that the social media account used to send a message and documents to him is, in fact, the Father’s social media account.
It is important that it be demonstrated that the mobile phone number or email address or social media account for all of those matters, understood to be those of a respondent, actually are the connections of a respondent rather than the Court being asked to assume that they are because that has been asserted in an opinion by an applicant. In this case, the documents have been drawn carefully, and bearing the necessity to prove those matters in mind. In all of those circumstances, I am satisfied that it is appropriate to proceed in the absence of the Father, he having been given an opportunity to participate in the proceedings.
In terms of proceeding without hearing further from him – that is, on only the evidence of the Mother, or what can loosely be described as undefended – I take into account the order of a Judicial Registrar made on 15 February 2024 where the Father was ordered to file a number of documents, to put his side of the story on record.
I am satisfied from the affidavits of service that the Father was, in fact, provided with a copy of that order. The Father has chosen not to further participate in the proceedings.
Also in evidence before me is an email from the Mother’s solicitor to the Father, and his response. On 3 October 2023, Ms Millen emailed the Father advising him that she acted for the Mother in regard to child support matters, and enclosed a letter to him and looked forward to hearing from him. The Father responded to Ms Millen on 21 November 2023 at 2.15 pm, and he stated as follows.
I [Mr Alistro] is the father for both
[X] and
[Y]
One inference that I make is that the Father had the opinion that it was unnecessary for him to communicate further or to participate in the foreshadowed proceedings because he had formally acknowledged that he was the father of X and Y.
Whatever his motivation was in not participating in the proceedings, I am satisfied that it is appropriate to proceed in this matter on the basis of only hearing the evidence of the Mother. The Mother’s affidavit sets out the circumstances of her prior relationship with the Father, the conception and birth of their eldest child Z, and the circumstances of the Father signing Z’s birth certificate. The Father, as a result of accepting parenthood of Z in the birth certificate, is registered as the father of Z. The Father was not living in a de facto relationship with the Mother at the time of the conception of X and Y.
Hence, I am satisfied on the evidence that the Father is the father of X and Y, and that there is no other possibility. Hence, it is appropriate that I issue a declaration in the terms as pressed pursuant to section 69VA of the Family Law Act1975 (Cth) (‘the Act’).
Family Law Act 1975 (Cth)
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.
The Mother seeks an order or a declaration pursuant to section 106A(5)(a) of the Child Support (Assessment) Act 1989, that she is entitled to the assessment of child support for the children X and Y.
Child Support (Assessment) Act 1989
Section 106A Declaration that a person should be assessed in respect of the costs of the child
(5) The court may grant the declaration if the court is satisfied that:
(a)if the reason referred to in paragraph (1)(b) was the only reason for the Registrar refusing to accept the application--the person should be assessed in respect of the costs of the child because the person is a parent of the child; or
The application is made now because the Mother is pressed to do so. The policy behind that is to partially ease the burden upon the taxpayer of the social security entitlement and to reflect the obligation of the Father to support his children.
The Mother made application for child support in regard to X and Y, but that was refused, and Child Support determined that they would not register the respondent as the father. I infer that this was because of the provisions of section 29(2)(h) of the Child Support (Assessment) Act 1989, which is, an elaboration of the common law provision or presumption of parentage arising from cohabitation.
Section 29 How decision is to be made
(2) The Registrar is to be satisfied that a person is a parent of a child only if the Registrar is satisfied:
…
(h) that the person is a man and:
(i)the child was born to a woman who cohabited with the man at any time during the period beginning 44 weeks and ending 20 weeks before the birth; and
(ii)no marriage between the man and the woman subsisted during any part of that period of cohabitation
In this case, at the time of the conception of X and Y, the parents were not living in a de facto relationship or cohabiting as man and wife, notwithstanding that they had previously.
Application filed out of time
The rules provide that a challenge by court order to the assessment of the child support registrar should be made within 56 days, and, the Mother’s application is outside that time. The Mother’s explanation is she simply had a lot on her plate caring for three little children at the time, and I am satisfied that in the circumstances of, then three children under four, that that is a very reasonable explanation. That is, a single parent caring for a number of children, who are very little.
I am satisfied that that provision in the rules should, pursuant to the provision of rule 15.06 of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘the Rules'), be extended. I am so satisfied because there is no prejudice to the Father.
Section 60I certificate
I also need to look at section 60I of the Act, because whilst the child support order pursuant to section 106A(5)(a) does not require a section 60I certificate, section 69VA is within Part VII of the Act, and hence on the face of it, a declaration pursuant to section 69VA would appear to be an order pursuant to part 7 of the Family Law Act. Hence, on the face of it, section 60I(7) would appear to apply. Counsel has not been able to provide me with any reason why section 60I(7) would not apply to an order pursuant to section 69VA. Section 60I(9) provides that that previous section does not apply if:
Section 60IAttending family dispute resolution before applying for a Part VII order
(9)Subsection (7) does not apply to an application for a Part VII order in relation to a child if:
…
(e) one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of incapacity of some kind, physical remoteness from physical resolution services or for some other reason)
I am satisfied that section 60I(7) does not apply in this case, because the Father is unable to participate effectively in family dispute resolution because of physical remoteness, he being in New Zealand, and because of his attitude to the proceedings being some other reason.
I infer that his attitude to the proceedings is that it is unnecessary for him to participate at all because he has formally acknowledged in writing that he is the father of Y and X. Hence, I am satisfied that section 60I(7) does not apply.
It is then necessary that I turn to rule 4.01 of the Rules,
Rule 4.01 Compliance with pre-action procedures
(1)Subject to subrules (2) and (3), before starting a proceeding, each prospective party to the proceeding must comply with the pre-action procedures.
(2)Compliance with subrule (1) is not necessary if:
(a)the proceeding is an application for divorce only; or
(b)the proceeding is an application relating to nullity or validity of marriage only; or
(c)the proceeding is a child support application or appeal; or
(d)the proceeding involves a court's jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act; or
(e)the court is satisfied that, in the circumstances, it was not appropriate for a party to comply with the pre-action procedures.
The sensible letter
The pre-action procedures do not apply for the declaration pursuant to section 106A(5)(a), but they do apply to the declaration as to parentage under section 69VA. I am satisfied in all of the circumstances that the rule has been complied with or, alternatively, it is appropriate to dispense with the rules providing for the pre-action procedures. I am so satisfied because Ms Millen’s work has provided to the Father, before the issue of the proceedings, sensible letters, and in particular the sensible letter of 5 December 2023.
…
including providing you with Minutes of Proposed Consent Orders. On 21 November 2023 you emailed confirming you are the father of the children. Unfortunately, your email confirmation is insufficient for my client to receive child support for her children and a court application has been filed to resolve this matter.
I now enclose the following documents by way of service:
Applicant’s Documents:
- Sealed Initiating Application filed 22 November 2023
- Sealed Affidavit of [Ms Wetherill] filed 22 November 2023
- Sealed Genuine Steps Certificate filed 22 November 2023
- Sealed Financial Questionnaire filed 22 November 2023
Federal Circuit and Family Court of Australia Brochures:
- Marriages, Families and Separation
- Child Support Application
Document to be returned:
- Acknowledgement of Service
- Minutes of Proposed Consent Orders
Hearing date
This matter is listed for a first return date of 23 January 2024 at 9:30am before [a] Judicial Registrar.
The hearing will take place online by Microsoft Teams and I will forward you the hearing link when it is received from the Court.
You, or a lawyer on your behalf, are required to attend the court hearing. If you do not, then you risk the court making an order in your absence.
If you wish to respond to the application, then complete and file a ‘Response to Initiating Application’ form. This document can be found on the Federal Circuit and Family Court of Australia website at Response to initiating application (do it yourself kit) - Federal Circuit and Family Court of Australia (fcfcoa.gov.au).
Minutes of Proposed Consent Orders
If you wish to resolve this matter prior to the hearing on 23 January 2024, please sign the enclosed Minutes of Proposed Consent Orders confirming you are the father of [X] and [Y]. I will then file the Minutes of Proposed Consent Orders with the Court and request the Orders be made administratively, without the need of the parties attending. The Orders would then be provided to Services Australia (Child Support) and an assessment will commence shortly thereafter.
If you do not agree that you are the father of the children, I can arrange for Minutes of Proposed Consent Orders to be sent to you for DNA testing to occur.
Next steps
I confirm I have sent you the Acknowledgment of Service document via email from Adobe Sign for you to electronically sign. I am required to file this document with the Court to confirm you have received my client’s court documents. Please sign it and return it within 7 days.
If you wish to electronically sign the Minutes of Proposed Consent Orders confirming you are the father or for DNA testing to occur, please respond by email so I can arrange for them to be sent.
If the matter is not resolved before the hearing date, an application will be made for you to pay all costs, including legal costs of approximately $2,448.00.
If you wish to discuss this matter, please contact me on […] or by email […]
Yours faithfully
Under the provisions of rule 4.01, I am satisfied that the rules have in fact been complied with. To the extent that they have not, if that is the case, I would dispense with further compliance in the circumstances of Ms Millen’s by communications by email with the father, including the sensible letter of 5 December 2023.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 13 June 2024
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