Radulov & Pinta [2025] FedCFamC2F 401 (28 March 2025)

1. Pursuant to s 69VA of the Family Law Act 1975 (Cth), Mr Pinta is the father of the child X born in 2011.
2. Pursuant to s 106A of the Child Support (Assessment) Act 1989 (Cth), Mr Pinta should be assessed in relation to the costs of the child X born in 2011 because Mr Pinta is a parent of the child X born in 2011.

1. The effect of the s 106A declaration, above, is that the mother's application for child support made on or about 1 October 2024 will be deemed to have been accepted by the Child Support Agency from that date and, accordingly, no child support will be payable for any earlier period prior to 1 October 2024.

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).

1. This is an application by the mother for a declaration under s 69VA of the Family Law Act 1975 (Cth) ("the Act") that the respondent is the father of the child X born in 2011, and for a consequential declaration under s 106A of the Child Support Assessment Act 1989 (Cth) that the respondent should be assessed in relation to the costs of the child because he is a parent of the child.
2. The respondent seeks the dismissal of the application.
3. In the alternative, he seeks orders that leave be granted to the mother to bring the application out of time; that pursuant to s 69VA of the Act a declaration is made that the respondent is a parent of the child; and that the application of the mother filed 13 February 2025 is otherwise dismissed.
4. The mother relies upon:
   • Her Initiating Application filed 13 February 2025;
   • Her affidavit sworn 5 February 2025;
   • Her minute of proposed orders.
5. The father relies upon:
   • His case outline filed in court and dated 24 March 2025;
   • His Response filed 21 March 2025;
   • His Financial Statement filed 21 March 2025;
   • His affidavit filed 21 March 2025.

The mother's application pursuant to r 15.06 that the time for filing her application for a declaration pursuant to s 106A be extended to the date of filing being 13 February 2025

1. The mother should have filed her application for a declaration pursuant to s 106A by about 6 January 2025 because she had 56 days from on or about 11 November 2024 to file that application; relevantly, about 11 November 2024 was the date that she received the Child Support Agency's refusal letter dated 31 October 2024.
2. However, she had actually filed her application pursuant to s 106A on 13 February 2025 and accordingly was only about five weeks out of time.
3. As to this delay, the Court takes into account, inter alia:

(a) the mother's first failed application for child support from the respondent in 2020 or 2021;

(b) on 22 November 2024 she filled out a legal aid application and later received advice from a solicitor (being the solicitor who had given her advice earlier on 1 October 2024) to send in the application by email, and that if she was eligible for legal aid a solicitor would be assigned to help her with her court application, and the mother understood from this conversation that she should wait to find out the result of the legal aid application;

(c) on 24 January 2025 she received a letter from Legal Aid New South Wales advising her that she had been granted legal aid for these proceedings (and in this regard the Court takes into account the intervening Christmas holiday period);

(d) on 29 January 2025 the mother had a first meeting with the solicitor who helped her prepare her application; and,

(e) the mother then filed her actual application on 13 February 2025.

1. In the Court's view, the mother's delay explanation should be accepted and the Court finds that she took reasonable steps to prepare and file her application after she received the Child Support Agency's declination letter dated 31 October 2024 (noting that that letter was a response to the mother's application for child support of 1 October 2024). The Court finds that she has provided an acceptable explanation for her delay.
2. The respondent submits that to allow the mother to bring her application out of time will cause significant financial hardship for him. In this regard the Court refers to his submissions contained in his Case Outline, his affidavit evidence including in relation to his current circumstances, and his Financial Statement filed 21 March 2025 (which, inter alia, asserts that the respondent's current weekly expenditure exceeds his weekly income). However, the respondent's current financial circumstances including current family circumstances (he has a new wife and family) are not considered relevant because they do not arise out of the mother's five week delay in filing; any hardship faced by the respondent as a result of the mother's application would not have been ameliorated had the application been filed in time (i.e. filed in time by about 6 January 2025).
3. The Court is not satisfied that any relevant prejudice is caused to the respondent by the mother's delay of about five weeks.
4. The respondent was told by the mother prior to the child's birth that she regarded the respondent as the biological father of the child. As to the respondent's submission that he had been living his life for the past 13 years assuming that he was not liable for any child support for the subject child, inter alia, had he previously sought legal advice as to his potential child support obligations in the event that the mother's relationship with Mr B came to an end, he would have ascertained that he remained potentially liable because he was the child's biological father.
5. The Court further observes that the respondent has been spared the cost of paying child support for most of the child's life.
6. The parties had informally, in the absence of a court order, undergone parentage testing in 2019 confirming the respondent was the biological father of the child. The mother had first applied for an administrative assessment of child support against the respondent in 2020 or 2021 which was refused. Again, the mother's delay relating to her most recent application was only about five weeks.
7. The respondent submits that if the mother's proposed declaratory orders are made, including the extension of time application, he will be potentially liable to pay child support dating back to the date of the mother's previous application for child support in 2020 or 2021 which would work an injustice to him.
8. He submits that if the mother's proposed declaration is not made under s 106A but the Court makes the declaration of parentage under s 69VA, the mother will simply be able to make a fresh and likely successful application for child support with child support to commence from the date of that fresh application.
9. Whilst that may be the case, the Court observes, consistent with the mother's submissions, that it is open to the Court, if an extension of time is granted to the mother, and her proposed declaratory relief is granted, to craft an order for extension of time (with a related Notation by the Court) that clearly indicates that child support is to be effectively only payable from the date of the mother's last child support application made on 1 October 2024. In the view of the Court it will be just to so craft such an extension of time order because, inter alia, the respondent was told by the mother that he was the father of the child before her birth, he obtained confirmation of his paternity from the informal paternity testing in 2019, the mother had made a child support application in 2020 or 2021, and again, he has been spared paying child support for the child for over a decade despite him being the child's biological father.
10. As to the merits of the mother's substantive application for declaratory relief, the Court refers to its discussions below and observes that the mother's relationship with Mr B has ended and the parties' informal parentage testing has shown the respondent to be the biological father of the child. The mother is seeking child support from the child's biological father and the child is only 13 years of age.
11. It will be fair, equitable, and proper to extend time accordingly.

The mother's application for a declaration pursuant to s 69VA that the respondent is the father of the child

1. The mother gives evidence indicating that the respondent is the biological father of the child which the Court accepts.
2. The respondent deposes that the parties and child underwent paternity testing in 2019, the results of which indicated that the respondent was likely to be the father of the child. Each party asserts that the parties were in a sexual relationship at the time of the child's conception, and that the mother informed the respondent early in the pregnancy that he was the father of the child. Albeit, the respondent deposes that he suspected the mother of being in other sexual relationships, the mother deposes that the respondent was her only sexual partner at the time of the child's conception and the Court accepts the mother's evidence in this regard.
3. A copy of a 'parentage testing procedure report' dated 6 May 2019 is annexed to the respondent's affidavit. That report identifies that based on the testing carried out, the respondent is "2359822 times more likely to produce a child with the required alleles than an unrelated man drawn randomly from the general population. This equates to a Relative Chance of Paternity of 99.99995%".
4. On the basis of the above evidence, together with the DNA testing, it is open to the Court to find, and the Court does find, on the balance of probabilities, that the respondent is the biological father of the child.
5. This being the case, the presumption of parentage of Mr B as the father of the child by reason of his entry on the child's birth certificate is rebutted.
6. The Court will make the mother's proposed orders seeking declaratory relief under s 69VA.

The mother's application for a declaration pursuant to section 106A of the Child Support Assessment Act 1989 (Cth)

Declaration that a person should be assessed in respect of the costs of the child

(1) This section applies if:

(a) the Registrar refuses to accept from an applicant an application for administrative assessment of child support for a child under subsection 30(2); and

(b) one of the reasons for the Registrar so refusing was that the Registrar was not satisfied under section 29 that a person who was to be assessed in respect of the costs of the child is a parent of the child.

(2) An application may be made to a court having jurisdiction under this Act for a declaration that:

(a) if the reason referred to in paragraph (1)(b) was the only reason for the Registrar refusing to accept the application--a person should be assessed in respect of the costs of the child because the person is a parent of the child; and

(b) if the reason referred to in paragraph (1)(b) was one of the reasons for the Registrar refusing to accept the application--the Registrar should reconsider the application under Division 2 of Part 4 because a person who was to be assessed in respect of the costs of the child is a parent of the child.

(3) The application must be made within:

(a) the time prescribed by the applicable Rules of Court; or

(b) such further time as is allowed under the applicable Rules of Court.

(4) Subject to section 145 (Registrar may intervene in proceedings), the parties to the proceeding are:

(a) if the application for administrative assessment was made under section 25--each person who was to be assessed in respect of the costs of the child; and

(b) if the application for administrative assessment was made under section 25A--the non - parent carer who made the application and the person in respect of whom the declaration is sought.

(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

(b) if the reason referred to in paragraph (1)(b) was one of the reasons for the Registrar refusing to accept the application--the Registrar should reconsider the application under Division 2 of Part 4 because the person who was to be assessed in respect of the costs of the child is a parent of the child.

(6) If the court grants the declaration:

(a) if the reason referred to in paragraph (1)(b) was the only reason for the Registrar refusing to accept the application--the Registrar is taken to have accepted the application for administrative assessment of child support; and

(b) if the reason referred to in paragraph (1)(b) was one of the reasons for the Registrar refusing to accept the application--the Registrar must reconsider the application under Division 2 of Part 4.

1. The Court refers to Annexure B to the mother's affidavit sworn 5 February 2025, being the Child Support Agency's letter to the mother dated 31 October 2024 refusing to accept the mother's application for administrative assessment of child support for the subject child. The only reason for the refusal was that the registrar was not satisfied that the respondent was a parent of the child.
2. In light of the Court's above findings as to s 69VA, the Court is satisfied that the respondent should be assessed in respect of the costs of the child because he is a parent of the child.
3. The Court makes orders and declarations as sought by the mother accordingly.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.