Zepps and Jackey and Anor

[2013] FCCA 622

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZEPPS & JACKEY & ANOR [2013] FCCA 622

Catchwords:
FAMILY LAW – Children – best interests of the child – parental responsibility – parentage – where identity of child’s father not conclusively established – where neither respondent has attended Court – order made ex parte requiring respondent to under parentage testing procedure – interim orders for sole parental responsibility and for the child to live with the mother.

Legislation:
Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 69W, 69X

Family Law Regulations 1984, Part IIA, Div.2, reg.21M
Federal Circuit Court Rules 2001, rr.13.03A, 13.03B

Applicant: MS ZEPPS

First Respondent: MR JACKEY

Second Respondent: MR HOWE

File Number: SYC 11 of 2013

Judgment of: Judge Scarlett

Hearing date: 17 June 2013

Date of Last Submission: 17 June 2013

Delivered at: Sydney

Delivered on: 17 June 2013

REPRESENTATION

Solicitor for the Applicant: Mr Fernie (as Agent)

Solicitors for the Applicant: Menassa Barbouttis Lawyers

The First Respondent: No Appearance

The Second Respondent: No Appearance

ORDERS

UNTIL FURTHER ORDER

1. The Applicant is granted leave to proceed ex parte.

2. The Applicant Mother is to have sole parental responsibility for the child [X] born [in] 2011.

3. The child [X] born [in] 2011 is to live with the Applicant Mother.

4. As provided by section 69W of the Family Law Act 1975 within twenty-eight (28) days of the date of this Order the Applicant

   
   

   MS ZEPPS born [in] 1994 and the First Respondent MR JACKEY born [in] 1994 of [address omitted] in the State of New South Wales must undertake a parentage testing procedure to be completed by DNA Labs of Level 1, 14 Giffnock Avenue, Macquarie Park in the State of New South Wales to determine the parentage of the child [X] born [in] 2011.

5. The parentage testing procedure referred to in Order (4) above is to be carried out:

   (a)In accordance with Division 2 of Part IIA of the Family LawRegulations 1984; and

   (b)At a laboratory that is accredited by the National Association of Testing Laboratories, Australia, for the purpose of carrying out parentage testing procedures; and

   (c)In accordance with the standards of practice that entitle the laboratory to be so accredited.

6. As provided by section 69X of the Family Law Act 1975 within twenty-eight (28) days of the date of this Order  the First Respondent MR JACKEY must provide a bodily sample for the purpose of the parentage testing procedure referred to in Order (4) above.

7. The Laboratory carrying out the parentage testing procedure in Order (4) is required to prepare a Report in accordance with regulation 21M of the Family Law Regulations 1984 relating to the information obtained as a result of carrying out the parentage testing procedure.

8. The Applicant must serve a copy of these Orders on the Respondents by 1 July 2013.

9. The Application is adjourned to Monday 5 August 2013 for further mention at 10:00am.

10. The Respondents are advised that if they or either of them fail or fails to attend Court on the next occasion then Orders may be made in their absence.    

IT IS NOTED that publication of this judgment under the pseudonym Zepps & Jackey & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 11 of 2013

MS ZEPPS

Applicant

And

MR JACKEY

First Respondent

MR HOWE

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Mother of a little boy who was born [in] 2011 for an order against the First Respondent, requiring him to undergo parentage testing to ascertain whether or not he is the father of her child.

2. The difficulty for the Mother arises from the fact that, as she deposes in her affidavit of 5^th April 2013, she was in a relationship with the First Respondent from early 2009 until September 2010. She commenced a relationship with the Second Respondent in about August 2010, which lasted until September 2011.

3. The Applicant became pregnant. It would appear that conception must have occurred during the period of time when her relationships with the First and Second Respondents overlapped, in August and September 2010. She deposed in her affidavit that she believed that the Second Respondent was the father of her son and, when the child was born, named him as the child’s father when she registered his birth. Annexed to her affidavit is a copy of the child’s Birth Certificate, showing the Second Respondent as the father. Both the Applicant and the Second Respondent are shown as the Informants.

4. However, the Applicant had doubts about the child’s parentage and asked the Second Respondent to supply a sample for a DNA test. The Second Respondent complied and the Applicant arranged for a private DNA test to be conducted. That test, unofficial though it may be, returned a negative result, showing that the Second Respondent was excluded as the child’s biological father. A copy of that DNA test report is annexed to the Applicant’s affidavit.

5. The Applicant now seeks that the First Respondent should undertake a DNA test to determine whether or not he is the father.     

Service of the Application

1. The Applicant’s solicitor experienced some difficulty in serving the documents on the Respondents. However, on 17 April 2013 a Licensed Process Server served sealed copies of the documents on the First Respondent, as evidenced by the affidavit of Mr C sworn on 30 April 2013.

2. The Court made an order for substituted service in respect of the Second Respondent on 7 May 2013. That order permitted service by registered post.

3. The Applicant’s solicitor has filed an affidavit of service showing that she complied with that order on 14 May 2013.

4. Neither of the Respondents has attended Court, nor has either one filed a Response or an affidavit.

Conclusions

1. As I am satisfied as to service and there is no appearance by either of the Respondent, with no explanation, I find that both Respondents are in default, as provided by Rule 13.03A. 

2. Where a respondent is in default, Rule 13.03B permits the Court to order that a step in the proceeding be taken within the time limited by the order (see r.13.03B(2)(a)). The Applicant needs to ascertain whether or not the First Respondent is the father of her son. I propose to make an ex parte Order requiring the First Respondent to submit to the necessary test under the provisions of s.69W of the Family Law Act 1975 (Cth) .

3. I also consider that it is in the child’s best interest for the Court to make interim parenting orders, providing that he should continue to reside with his mother, who appears to be his primary caregiver. When a Court is considering whether to make a particular parenting order, the Court is required by s.60CA of the Family Law Act 1975 to regard the best interests of the child as the paramount consideration. The doubt that currently exists as to the identity of the child’s father makes it impossible to consider the benefit to the child of having a meaningful relationship with any parent other than his mother (s.60CC(20(a)). There is no evidence of any risk of harm to the child of physical or psychological harm to the child from being subjected to, or exposed to, abuse, neglect or family violence (s.60CC(2)(b)).  

4. Although subsection 61DA(3) of the Act provides that when the Court is making an interim parenting order, the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child normally applies, I am of the view that it would be inappropriate for the presumption to be applied in this case. The reason why I consider it to be inappropriate is because the Court has no clear evidence as to the identity of the child’s father.

5. Consequently, an Order will be made providing that, until further order, the Applicant mother is to have sole parental responsibility for the child.

6. An order will also be made providing that the child is to live with his mother, the Applicant. Neither Respondent seeks any parenting order, so none will be made.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: