What happens when a separated or divorced father has been paying child support but then finds out the subject child is not his biological child after all? A recent matter in the Federal Circuit and Family Court of Australia (FCFCOA) shines a light on how a situation like this may be dealt with. Let’s take a look.
The matter, given the pseudonyms Crosby & Cole, involved a man who discovered he was not the biological parent of a four-year-old child, after having already paid child support for some years. Once the man, Mr Crosby, was told by his partner after separation that the child was likely not his, he immediately confirmed this with DNA testing and made an application to the FCFCOA.
There were three parts to the court matter. Firstly, the FCFCOA had to deal with the fact that Mr Crosby’s application was being made outside the prescribed time limits. Secondly, the FCFCOA had to consider whether to make a declaration that Mr Crosby should not be assessed for child support. Thirdly, the FCFCOA had to deal with the issue of whether or not the monies already paid should be ordered to be recovered.
Who handles child support in Australia?
In most circumstances, child support is administrated by Services Australia, which calculates and issues child support assessments to parents. If a parent disagrees with a decision by Services Australia, the parent can lodge an objection with that agency. A parent can also make an application to the Administrative Appeals Tribunal (AAT) to review an objection decision of Services Australia. However, the AAT is limited in the kind of objection decisions it can review. When the AAT can’t review a decision, parents can apply to the FCFOCA for orders.
How can the family court become involved?
Some of the matters the FCFCOA can hear include applications for a declaration that someone is not the parent of a child for the purposes of child support, applications for recovery of child support monies that were paid when the payer was not in fact liable to pay child support, applications to set aside binding child support agreements (for example, if the agreement was obtained by fraud, undue influence, duress or unconscionable conduct), among various other circumstances.
The FCFCOA (Family Law) Rules 2021 specifies time limits for making an application with the FCFCOA after receiving a notification of assessment of child support. The application has to be within 56 days of service after being served with a notice under the Child Support (Assessment) Act 1989.
In this case it was years after the original assessment for child support that the question of the child’s paternity was raised. However, as Mr Crosby had immediately acted to commence proceedings as soon as he received the DNA test results back, the judge said the court would “not hesitate in granting [him] leave to bring this Application outside the time allowed under the Rules”. Clearly, it would not be in the interests of justice to prevent Mr Crosby from bringing the proceedings, given he had acted as soon as he became aware of the question of paternity.
Declaration of no liability
The FCFCOA declared that Mr Crosby should not be assessed for costs for the child because DNA testing had proved he was not a parent of the child.
Order regarding recovering funds
Finally, the FCFCOA considered the issue of recovering monies Mr Crosby had already paid. Again under the Child Support (Assessment) Act, once a declaration has been made that someone is not a parent and should not have to pay costs in relation to a child, the court has the discretion to consider making an order for recovery of monies that were already paid.
Although this remedy is available, in this particular matter Mr Crosby did not wish to pursue the repayment of the monies already paid. The judge noted this was not only because Mr Crosby believed the mother would never be able to pay him back, but also because “[he] recognises that the assistance that he provided for [the child] was needed and he does not begrudge that assistance going to [the child].”
If you need advice on a family law matter where paternity is an issue, or if you need help to get child support, please call Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family law.
You can find further information on how the family courts can assist in matters involving child support issues here.
You might also like to read our blog: Do you have the right to refuse a paternity test?