Y and Y - [2001] FMCAfam 258

FEDERAL MAGISTRATES COURT OF AUSTRALIA

Y & Y

[2001] FMCAfam 258

CHILD SUPPORT – Administrative assessment – liable parent – recovery of monies – DNA testing.

Applicant:

G W Y

First Respondent:

M Y

Second Respondent

CHILD SUPPORT AGENCY

File Number:

ZN 2861 of 2001

Judgment of:

Donald FM

Hearing date:

26 October 2001

Delivered at:

Newcastle

Delivered on:

22 November 2001

REPRESENTATION

Counsel for the Applicant:

Robert Peattie & Associates

Solicitors for the First Applicant:

Farrell Lusher Solicitors

Counsel for the First Respondent:

Ian Duane

Solicitors for the Child Support Registrar:

James McCulloch, Australian Government Solicitors

ORDERS

That, on or before the date on which she receives payment pursuant to Order 2 of the Orders made in the Family Court of Australia on

9 August 1999, the First Respondent pay to the Applicant the sum of $21,953.80 less any amount recovered by the Applicant from the Second Respondent as referred to herein.
That within 28 days of the date of these orders, the First Respondent pay to the Applicant the sum of $742.50 being the cost of DNA testing carried out by Silbase Scientific Services.
That the Second Respondent pay to the Applicant the sum of $750.32.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

ZN 2861 of 2001

G W Y

Applicant

And

M Y

First Respondent

And

CHILD SUPPORT AGENCY

Second Respondent

REASONS FOR JUDGMENT

This is a matter in which the Applicant has sought orders against the Respondent in the following terms:
(a)That the Child Support Agency be joined to the proceedings.
(b)
That pursuant to Section 107 of the Child Support (Assessment) Act, the Respondent, M Y, be declared never to have been entitled to an administrative assessment of child support for the child,

B A Y.
(c)That M Y pay to G W Y within twenty-eight (28) days of the making of these Orders or at such other times as may be determined by the Court the following sums:
(i)The cost of DNA testing carried out by Silbase Scientific Services in the sum of $742.50;
(ii)Child support paid to M Y direct by G W Y from 19 February 1998 to 15 February 2001 in the sum of $21,953.80;
(iii)Child support paid to the Child Support Agency for payment out to M Y in the sum of $1,701.13.
(iv)The Applicant’s legal costs as agreed between the parties but failing agreement as assessed by the Court.
(d)That in the alternative to Order C, the Child Support Agency repay to the Applicant the sums referred to in Order C(ii), (iii) and (iv) of this application.
The Orders sought as A and B, above, have been made by consent. The Child Support Agency has been joined to these proceedings and was represented as was the Applicant and the First Respondent.
I note that the Child Support Agency, the Second Respondent, has now paid to the Applicant the sum of $950, being part of the sum sought by the Applicant in C(iii), above.
It is the submission of the Second Respondent that:
a)there is no jurisdiction conferred on the Family Court by the Child Support (Assessment) Act 1989 (‘the Assessment Act’) or the Child Support (Registration and Collection) Act 1988 (‘the Registration Act’) to make an order for payment against the Registrar;
b)the relevant provisions of the Assessment Act provide the payer with a remedy against the Payee; those provisions are not concerned with the issue of repayment by the Registrar to the Payer;
c)there is no statutory jurisdiction conferred on the Family Court or the Federal Magistrates Court by or pursuant to any other Act, which would enable this Court to make the order sought;
d)even if there was jurisdiction to make an order for payment against the Registrar (which is denied) it was not just and equitable in this case to make an order for repayment.
I further note that the Applicant has now not pressed his application in D above, preferring to await the decision of this Court in relation to the balance of his Application.

Evidence

In considering the Applicant’s case, I have had regard to:
a)The Application of the Father filed on 27 March 2001;
b)The Amended Application of the Father filed on 23 August 2001;
c)The Application (Child Support) of the Father filed 16 October 2001;
d)The affidavit of G W Y sworn 9 March 2001;
e)The affidavit of G W Y sworn 13 September 2001;
f)The affidavit of G W Y sworn 18 October 2001; and
g)The submissions made by the Father.
In considering the case for the First Respondent, I have had regard to:
a)The Response of the Mother filed 7 May 2001;
b)
The Response of the Mother to the Amended Application filed

3 September 2001;
c)The affidavit of M Y sworn 4 May 2001;
d)The affidavit of M Y sworn 25 September 2001; and
e)The submissions made by the Respondent.
In considering the case for Second Respondent, I have had regard to that Agency’s submissions.
I note that the Court declared on 26 July 2001:
That G W Y is not the Father of the Child B A Y born XX August 19XX.

Background

The Applicant and the First Respondent commenced a de facto relationship in 1985. The First Respondent gave birth to the subject child on XX August 19XX.
At all relevant times the Applicant was a serving member of the Royal Australian Navy and, at the time of conception, was required to reside throughout the week on a naval base returning to the home occupied by the First Respondent on weekends.
The Applicant and the First Respondent married on XX April 19XX, prior to the birth of the Child.
The Applicant and the First Respondent separated on XX December 19XX and were divorced on XX December 19XX.
The Applicant was suspicious as to whether or not he was the father of the Child. This suspicion fuelled by the date of birth and certain statements made by the First Respondent in relation to that date. He chose to put those suspicions to one side and at all times prior to separation acted as the Child’s father. The suspicions as to the father of the Child remained and were fuelled in the Father’s eyes by the lack of resemblance as between the Father and the Child.
The Applicant recently became aware of a DNA testing procedure conducted upon hair follicles. He obtained a suitable sample, had them tested and presented the results to the First Respondent. She continued to maintain that the Applicant was the Father. The Applicant obtained orders for parentage testing on 7 May 2001. Following upon that test, the Court made a declaration on 26 July 2001 that the Applicant was not the father of the Child. It is the Applicant’s evidence, which I accept, that the First Respondent has now revealed the identity of the Child’s father to him.
On 26 October 2001, a declaration was made by consent that:
… pursuant to section 107 of the Child Support (Assessment) Act, the Respondent, M Y, be declared never to have been entitled to an administrative assessment of child support for the child, B A Y.
It was also on that day that the Child Support Agency was joined to the proceedings by consent.
As to child support, it was on 4 February 1998 that an application for assessment was received by Centrelink. This related to the subject child and named the Applicant as the paying parent. The First Respondent indicated that she did not want the Child Support Agency to collect the child support payments at that time. It is not disputed that between the date of assessment and 7 May 2001, the totality of payments made by the Applicant either to the First Respondent directly or to the Second Respondent was $23,654.93 and consisted of an amount paid directly to the First Respondent in the sum of $21,953.80 and to the Second Respondent for payment to the First Respondent, the sum of $1,701.13.
On 2 March 2001, the First Respondent indicated to the Second Respondent that the Applicant was disputing paternity and requested that the Second Respondent collect unpaid amounts. The First Respondent subsequently advised the Agency of the receipt of $640 from the Applicant. The Second Respondent received a further $950.81 from the Applicant and, despite an Order of this Court that payments received should be held pending further order, mistakenly released those moneys to the First Respondent. The Second Respondent has since refunded to the Applicant the sum of $950.81.

Law

This is an application originally brought pursuant to section 107 of the Child Support (Assessment) Act. A declaration pursuant to subsection 1 of that section has been made, that declaration being in the following terms:
That pursuant to section 107 of the Child Support (Assessment) Act, the Respondent, M Y, is declared never to have been entitled to an administrative assessment of Child support for the Child

B A Y.
It is important to note the provisions contained within subsection 5 of section 107:
“If the court grants the declaration, the application for administrative assessment of child support is to be taken never to have been accepted by the Registrar.”
Relevant subsections of Section 143 of the Child Support (Assessment) Act are in the following terms:
(1)Where:
(a)an amount of child support is paid by a person to another person; and
(b)the person is not liable, or subsequently becomes not liable, to pay the amount to the other person;
the amount may be recovered in a court having jurisdiction under this Act.
(2)…
(3)In a proceeding in a court under this section, the court may make such orders as it considers just and equitable for the purpose of adjusting or giving effect to the rights of the parties and the child concerned.
(4)An amount paid to the Commonwealth under section 30 of the Child Support (Registration and Collection) Act 1988 is to be taken, for the purposes of this section, to have been paid to the person to whom, apart from that section, the amount would have been payable.
Subsection 1 of Section 30 of the Child Support (Registration and Collection) Act is in the following terms:
If a registrable maintenance liability is registered under this Act, amounts payable under the child support assessment, court order or maintenance agreement under which the liability arises are debts due to the Commonwealth by the payer in accordance with the particulars of the liability entered in the Child Support Register.
I have been referred by both the Applicant and the Second Respondent to two decisions concerned with the interpretation of these provisions and I note that each of those decisions are the subject of appeal by the Second Respondent. The first of these decisions is that of Zildic v Tawiti and Registrar of Child Support (Kay J, Family Court of Australia, judgment dated 9 April 2001. This appeal, I am informed, has been heard by the Full Court of the Family Court of Australia and the decision by that Court has been reserved. The second of these decisions is Boehm v Baker and Deputy Child Support Registrar (Dawe J, Family Court of Australia, judgment dated 5 July 2001).This appeal has not apparently been heard.
In each of those matters, it was decided that section 143 conferred power on the Court to make an order for repayment by the Second Respondent of moneys paid under section 30 of the Child Support (Registration and Collection) Act.
The Second Respondent submits that each of the decisions referred to was wrongly decided and, in any case, can be distinguished. The Second Respondent has also submitted that this Court should delay the handing down of its decision in this matter pending the decision of the Full Court of the Family Court in those matters. I decline to adopt that approach. The parties are entitled to have the matter before this Court decided with as little delay as possible and without the unnecessary incurrence of further costs. The principles referred to in each of the decisions are clear and, with respect, appear correct.
Turning firstly to the question of repayment by the First Respondent to the Applicant, it is clear that, subject to sub-section 3 of the Child Support (Assessment) Act, an order should be made in the terms sought by the Applicant. This conclusion is based upon the clear interpretation of the provisions already referred to.
As indicated, section 143 of the Child Support (Assessment) Act provides that where an amount of child support is paid by a person to another person and the person is either not liable or subsequently becomes not liable to pay the amount to the other person, then the amount may be recovered in a court having jurisdiction under that Act.
This Court does have jurisdiction under the Child Support (Assessment) Act, such jurisdiction being provided by section 99 of that Act. It is not disputed that the Applicant has paid a total of $23,654.93 (such figure confirmed by the Second Respondent) to the First Respondent. This was paid either directly to the First Respondent or though the Second Respondent to the First Respondent.
This amount was paid following assessment by the Second Respondent and pursuant to such assessment. A declaration has now been made pursuant to Section 107 of the Child Support (Assessment) Act that the First Respondent has never been entitled to an administrative assessment of child support for the child, B A Y.
The effect of sub-section 107(5) is that the application for administrative assessment of child support is taken never to have been accepted by the Registrar. The precondition for recovery under section 143 is, therefore, fulfilled, and the amount paid may be recovered from the First Respondent in this Court.
I turn now to sub-section 3 of section 143 to determine what orders would be “just and equitable for the purpose of adjusting or giving effect to the rights of the parties and the child concerned”. In that respect, of course, I note that the Applicant has paid the amount stated in respect of a child who was not his own. The Mother, so I find, was not aware that the Applicant was not the Father until the Applicant advised her of the results of his first DNA test conducted on a hair follicle of the Child. It would seem from the Applicant’s evidence that the First Respondent may have had some suspicion or fear that this might be the case but the evidence is simply not sufficient for me to conclude that she did have actual knowledge. I accept the Applicant’s evidence that the First Respondent is aware of the identity of the Child’s father. True it is that the First Respondent is now fully supporting the Child from social security benefits, but she is able to pursue the Child’s father for child support if she wishes.
The thrust of the First Respondent’s submissions focussed upon the poor financial situation of the First Respondent and the inability to pay if an order as sought by the Applicant was made. I accept that the Applicant is in a superior financial position to that of the First Respondent. I do note, however, the provisions of the property settlement as between the Applicant and the First Respondent. The orders made in relation to property on 9 August 1999 appear as an annexure to the Applicant’s affidavit sworn on 18 October 2001.
Those orders provide for the payment to the First Respondent a sum of $55,000 plus interest on that sum calculated from the date of the orders to the date of payment. This sum will be paid to the First Respondent upon the Applicant’s retirement from the Royal Australian Navy. The Court is unaware of the Applicant’s proposed retirement date.
I have balanced each of the factors to which I have been referred and conclude that it would be clearly just and equitable for the First Respondent to repay to the Applicant the amount paid by him by way of child support. The funds to do so may not be available now but will be available in the circumstances referred to and, even then, will not exhaust the total sum. It is doubtful that the payment at that time will seriously impact upon the Child. It is not appropriate that the payment be ordered to be made within 28 days as sought by the Applicant.
I turn now to the application in the alternative that the Second Respondent pays the amounts claimed. This is clearly to the Applicant’s advantage given the current financial situation of the First Respondent and the probable delay before the Applicant would otherwise receive the amount claimed.
The Second Respondent seeks, firstly, to rely on a submission that there is no jurisdiction conferred on this Court by the Child Support (Assessment) Act or the Child Support (Registration and Collection) Act to make an order for payment against the Registrar. This question was considered in both Zildic and Boehm, referred to earlier.
In Zildic Kay J. considered the various sections of the relevant Acts and concluded that section 143 of the Child Support (Assessment) Act was wide enough to cover the recovery of moneys from the Second Respondent. In that case, Kay J., in the exercise of the discretion provided by subsection (3) of that section, ordered the Second Respondent to repay amounts collected after receiving advice that both the payer and the payee that the Applicant in that matter was not the father of the subject child. He declined to order, however, that the Second Respondent repay amounts collected prior to such advice for he concluded such an order would be inequitable given that the Second Respondent had relied upon information provided to it and upon the information contained in the Register of Births.
In Boehm Dawe J. similarly concluded that section 143 of the Child Support (Assessment) Act provided jurisdiction to make such an order against the Second Respondent. In that matter Dawe J concluded that the jurisdiction to make such an order depended entirely upon the interpretation of section 143. The interpretation of that section required that it be given a meaning consistent with the natural meaning of the words in the section and consistent with the overall scheme of the legislation.
His Honour then proceeded to examine that overall scheme, noting that “there is nothing in the provisions of section 143 which limits the right of recovery to a right against the ultimate payee only”. He concluded that section 143 does allow the court to make the order sought. With respect, I agree with this interpretation and I am bound, in any case, by the decisions referred to in dealing with a like case. I do note that in each of those matters, the liability was registered and collected by the Second Respondent. Section 30 of the Child Support (Registration and Collection) Act was of application.
The Second Respondent has, however, sought to distinguish the cases referred to from the one currently under consideration. Save for a small portion of the amount claimed by the Applicant, the child support was paid by him directly to the Mother. It was not until 2 March 2001 that, at the First Respondent’s request, the liability of the Applicant was registered for collection. This liability was only then registered under section 30 of the Child Support (Registration and Collection) Act. Up until the date of registration, it is submitted, the required payments could not be described as “a debt due to the Commonwealth”. In this respect, so it is submitted, this case can be distinguished.
The funds prior to registration did not come into the Second Respondent’s hands and the liability was not registered. I accept that this situation can be distinguished from that under consideration in the cases referred to. If I am wrong in that regard, these factors can be taken into account in considering the discretion under section 143(3) of the Assessment Act.
Further, I accept the submission of the Second Respondent that it would not be just and equitable for this Court to make an order of the type sought by the Applicant against the Second Respondent. Such an order would not be just and equitable in relation to those amounts of child support paid prior to notice of the orders of this Court being given to it or prior to registration of the liability. With respect, I adopt the reasoning of Kay J in Zildic in this respect.

Subsection 3 of section 143 provides the discretion as already referred to in these reasons. The Court may make orders, as it considers just and equitable for the purpose of adjusting or giving effect to the rights of the parties and the child concerned. Here the Second Respondent relied upon the information provided to it by the First Respondent with such information not being objected to by the Applicant. The Second Respondent also relied upon the entries contained within the Birth Register wherein the Applicant was named as the father. In the words of Kay J. in Zildic, “There was nothing more the Registrar could have done at that stage than rely upon the information the Registrar had, namely that the Applicant to these proceedings was the father of the child.” Further, in this case the Applicant will be able eventually to recover the amount sought from the First Respondent – when the payment referred to in the property settlement proceedings between the parties is made.
Once the liability was registered and the Second Respondent became aware of the declaration and orders made by this Court, the Second Respondent was on notice and the reasoning contained within the decision referred to has application. It is then appropriate for the Applicant to be able to have recourse to that party.
I therefore find that it is not just and equitable to order the Second Respondent to repay to the Applicant the amount sought other than for any amount paid to the Second Respondent after notice was given that the Applicant was not the father of the child and after the liability was registered.
I note that the Applicant seeks from the First Respondent the cost of DNA testing, following such testing revealing that he was not the father of the subject child. The amount of such cost is $742.50.
As detailed earlier, the Applicant had a DNA test conducted on a hair follicle because of his suspicions that he was not the father of the Child. He does not seek the costs of this testing.
Following the receipt of test results, however, the results were shared with the First Respondent. The Mother continued to deny the assertion that the Applicant was not the Child’s father. I accept that the Mother knew she had been intimate with another male at about the time of conception but I also accept that the Mother did not know with certainty that this person was the Child’s father.
The Second Respondent was offered a second DNA test and advised that otherwise the matter might proceed to court and the costs of such an exercise might be claimed from her. She declined this offer.
The matter did proceed through the Court and a second DNA test was conducted. That test confirmed the result of the first.
I note the First Respondent’s financial situation as against that of the Applicant. Given the notice of the first DNA test provided to the Second Respondent and the offer to proceed to another test without coming to Court, it is appropriate that the First Respondent pay the cost of such testing in the amount of $742.50.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Donald FM

Associate: Helen Williams

Date: 22 November 2001