MOTHER RESIDING IN THE USA SEEKS FOR PARENTAGE ORDER AGAINST THE SECOND RESPONDENT IN AUSTRALIA
This is an application by the Australian Government Solicitor for an extension of time to apply for a declaration of parentage of the child, X, born in 2013. The second respondent, on the other hand, seeks to dismiss the application on the ground of lack of jurisdiction.
Facts:
The first respondent is the mother of the child. She supports the application and has provided a Power of Attorney to the applicant to act on her behalf. The second respondent opposes the Orders sought by the applicant. He seeks injunctive relief about the first respondent’s use of information obtained through these proceedings.
The first respondent was born in Country H and is currently 38 years old. She is the holder of a green card entitling her to reside in the United States (USA) from 2013 until 2023.
In 2012, the respondents met in City J, in the USA. At the time, the first respondent was engaged to another person. The respondents engaged in unprotected sexual intercourse. The following morning, the first respondent took contraceptive pills, commonly known as the morning after pill. The first respondent married her now ex-husband. Later that month, she discovered she was pregnant. X was born in 2013. The first respondent’s ex-husband appears on the child’s birth certificate as the father.
The first respondent notified the second respondent that he was the father of the child. The second respondent has maintained throughout these proceedings that the likelihood of pregnancy occurring in the circumstances of this matter is remote.
On 20 November 2017, the Department of Human Services (DHS) received a Child Support Enforcement request from the Child Support Enforcement Division of the City J Department of Revenue dated 11 August 2017. That agency requested DHS to establish the parentage of X, and obtain and enforce the Orders for current and retrospective child support on behalf of the first respondent.
DHS refused the application on the basis there was no evidence to indicate the second respondent is the father of the child.
On 4 April 2019, the applicant commenced these proceedings. The application was commenced approximately seven months outside the prescribed statutory time limit in accordance with Rule 25A.06 of the Federal Circuit Court Rules 2001 (“the Rules”).
Issue: Should the court grant the application for an extension of time to apply for a declaration of parentage for the child?
Law:
Analysis:
The first respondent is not a resident of Australia. A person who is not a resident of Australia may apply for an administrative assessment of child support if the registrar determines that child support is reasonably likely to be payable by the parent, and the parent is a resident of a reciprocating jurisdiction on the date the application is made. Here, the application was sent to the registrar by an overseas authority for a reciprocating jurisdiction on behalf of the first respondent in compliance with section 29B of the CSAA.
If “resident in the reciprocating jurisdiction” means being present in the jurisdiction on the relevant day, the application would fail. The applicant would need to provide positive evidence that the first respondent was in the USA on 20 November 2017. The second respondent submits that there are stamps showing entry to the USA on 14 September 2017 and 29 November 2017. The stamps in the passport are not clear enough to determine when the first respondent exited the USA between those two dates. Clearly, the applicant could have provided evidence clarifying these matters.
The challenge to the Court’s jurisdiction on the basis that the first respondent is not a resident of a reciprocating jurisdiction, being the USA, is made out. The onus is on the applicant to establish the matters necessary to ground jurisdiction, and they have failed to do so. The application is dismissed.
Conclusion: The Initiating Application filed by the Applicant is dismissed.
