W and H

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
Child Support (Assessment) Act 1989, ss.107;143

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
COURT OF AUSTRALIA AT
PARRAMATTA

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

In this case, the Applicant, M A W, filed an application against the Respondent, L H, in the Federal Magistrates Court seeking a declaration that the Respondent was not entitled to an administrative assessment of child support for a child named R M H W born on 20 August 1992. The application was filed under section 69VA of the Family Law Act 1975 and section 107 of the Child Support (Assessment) Act 1989. The Respondent did not appear in court, and service was effected through the Child Support Agency. Parentage testing was completed, and the results confirmed that the Applicant was not the father of the child. The Respondent also provided a statutory declaration stating that the Applicant was not the father of the child.

The primary legal issue before the court was whether the Applicant was the father of the child R M H W and, therefore, whether the Respondent was entitled to an administrative assessment of child support. The court had to determine whether the Applicant was the father of the child based on the evidence presented, including the parentage test results and the statutory declaration from the Respondent. The court had to consider whether the evidence proved to the civil standard that the Applicant was not the father of the child and whether the Respondent was entitled to an administrative assessment of child support if the Applicant was not the father.

The court found that the DNA test results supported by the statutory declaration from the Respondent proved to the civil standard that the Applicant was not the father of the child R. The court was satisfied that the evidence showed that there had not been a relationship akin to that of a parent between the Applicant and the child. The court also noted that the Applicant had not met the child for about nine years. The court made the declarations set out at the commencement of the decision, stating that the Applicant was not the father of the child and that the Respondent was not entitled to an administrative assessment of child support. The court also ordered that the Respondent pay the Applicant's costs of the proceedings, as the Applicant had been wholly successful and the matter could have been settled earlier.

In conclusion, the Federal Magistrates Court found that the Applicant was not the father of the child R M H W, and the Respondent was not entitled to an administrative assessment of child support. The court ordered that the Respondent pay the Applicant's costs of the proceedings. The court's decision was based on the DNA test results and the statutory declaration from the Respondent, which proved to the civil standard that the Applicant was not the father of the child. The court noted that the Applicant had not met the child for about nine years and that the matter could have been settled earlier. The court's decision is final and binding on the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established