One night stand impacts child support case

29-November-2010 Family Law By admin

Man pays child support for six years before DNA reveals he is not the father


An expensive child support case shows it is not always worth recovering funds even if they are overpaid or incorrectly paid.

The facts of Forsythe & Latimer & Anor [2010] FMCAfam 478 (8 June 2010)


A recent decision in the Federal Magistrate’s Court (8 June 2010) concerned an application by the Child Support payer who had made payments over a number of years unaware that he was not the father of the child at the time that he made payments of child support.

The recipient of the funds was in strained financial circumstances.  Although the father was determined not to be the father so for the purposes of this discussion he will be called the “payer”.

The mother commenced a relationship with the payer in November 1997 which continued to June 1998.  They did not live together but they had a relationship which included sexual intercourse.

On an occasion in December 1997 the mother had a “one night stand” following an event at a pub.  She does not recall this man’s name nor have any of his contact details.  The child was born in late 1998 but the payer’s name was not recorded on his birth certificate until 11 January 2000.

After making private payments of child support, the payer then commenced paying through the Child Support Agency in October 2002.  After suspicions were raised by the payer’s sister as to the paternity of the child, the payer requested the mother permit a DNA test in or about March 2008.  Due to delays from the testing agency a conclusive report was not produced until 22 April 2009 which excluded the payer as being the biological father of the child.  After some delays the payer commenced proceedings in the Federal Magistrate’s Court seeking a declaration under the Child Support (Assessment) Act and seeking a repayment order under that Act.

The entitlement of a party to “be repaid” is up to the Court who has an unfettered discretion as to whether or not to make the order in accordance with the criteria specified in Section 143(3) of the Child Support (Assessment) Act.  The relevant criteria is as follows:

  1. whether the payee or the payer knew or suspected, or should reasonably have known or suspected, that the payer was not a parent of the child; 
  2. whether the payee or the payer engaged in any conduct (by act or omission) that directly or indirectly resulted in the application for administrative assessment of child support for the child being accepted by the Registrar; 
  3. whether there was any delay by the payer in applying under section 107 for a declaration once he or she knew, or should reasonably have known, that he or she was not a parent of the child; 
  4. whether there is any other child support that is, or may become, payable to the payee for the child by the person who is a parent of the child; 
  5. the relationship between the payer and the child; 
  6. the financial circumstances of the payee and the payer. 

 

Comment from Mark Streeter Sydney Lawyer

Having regard to all the personal and particular circumstances of this case and the conduct of the parties, their financial circumstances and applying them to the criteria referred to above, the Federal Magistrate ruled that of the $39,090.57 claimed only $9,743.30 would be ordered to be paid and then made provision for these to paid by instalments over 18 months.

This was an extremely expensive case to run and this case involved 3 hearing days and written submissions. There is no way that costs would not have exceeded the sum recovered and accordingly the commerciality of recovery proceedings in this jurisdiction must be carefully weighed up!

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