…not to be assessed in respect of costs of child – insufficient explanation for delay not dispositive
In Kashmiri & Ashwell [2023] FedCFamC1A 55 (1 May 2023), Austin J considered an unsuccessful application under s107 of the Child Support (Assessment) Act 1999 (Cth) (Assessment Act), where the applicant said he should not be assessed to pay child support.
The mother obtained an administrative assessment of child support in 2006. In 2007, the applicant used a DNA test he ordered online, the results of which excluded him as the biological father of the child ([10]).
The applicant first initiated proceedings in 2012 which were dismissed in 2014 for want of prosecution. In 2021, the applicant was granted legal aid and unsuccessfully pursued leave to proceed out of time.
Austin J said (from [36]):
“ … [H]is Honour focussed upon and gave primacy, if not paramountcy, to the insufficiency of the explanation offered for the long delay in bringing the proceedings. His Honour’s lack of satisfaction about the sufficiency of the explanation for delay was effectively treated as being dispositive. …
[37] His Honour gave no consideration at all to the separate question of what, if any, hardship or prejudice which might flow to the respondent by granting the application to extend time …
[38] It is difficult to see how the grant of an extension of time to the appellant to bring his substantive application would occasion any material hardship … If the appellant is truly not the child’s biological father, then the declaration sought by him and the rectification of the child’s birth certificate should almost inevitably follow. …
(…)
[45] The appellant seemingly had a reasonably arguable case for at least the declaration he sought under s107 of the Assessment Act on account of him not being the child’s biological father. It is difficult to understand how the primary judge could have correctly found on the available evidence the appellant did not have a sufficient likelihood of success to justify the extension of time but his Honour wrongly required him to establish actual entitlement to the remedy.”
The appeal was allowed and the case remitted for rehearing.
Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively).
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