From time to time when a parent is asked to pay child support after separating from a spouse or partner, they may wish to confirm the parentage of a child.
The importance of doing so was made clear in the 2017 case of Hallis & Fielder where it was established by DNA testing that Mr Hallis was not the father of Ms Fielder’s child, with the result that the Court ordered Ms Fielder to repay to Mr Hallis all the money he had paid to her in child support up until that point.
The facts of the case were very interesting. The Court accepted that until family law proceedings began after separation, when Mr Hallis was seeking parenting orders for parental responsibility, and for the child to sed time with him (with the child living primarily with the mother), Mr Hallis believed fully that he was the father of the child. This was because he had been informed by Ms Fielding he was the father of the child. As a result of being told he was the father of the child, he agreed to his name being entered onto the birth certificate as the child’s father.
However it would later become known – only after Mr Hallis commenced family law parenting proceedings – that Ms Fielding was well aware that Mr Hallis was not the f father of the child. She had deliberately misled Mr Hallis on this issue, and her deception had resulted in Mr Hallis wrongly entering his name on the child’s birth certificate as the father.
This was an important conclusion of the Court because Ms Fielder attempted to argue that she should not have to repay the wrongly paid child support to Mr Hallis because he willingly participated in the deception, plus it is an offence to lie about parentage when registering the birth of a child.
However, it may be surprising to learn that the Court is not automatically required to order the repayment of wrongly paid child support but rather has the discretion to make that order after considering the factors listed in section 3B of the Child Support (Assessment) Act, which states the Court has the power to make such orders “as it considers just and equitable for the purposes of adjusting, or giving effect to, the rights of the parties and of the child concerned”, with the court being obliged to take into account the following matters:
- whether the payee or payer know, or suspected, or should reasonably have known or suspected, that he party was not a parent of the child;
- whether the payee or the payer engaged in any conduct (by act or omission) that directly or indirectly result sed in the application for an administrative assessment of child support for the child being accepted by the Registrar;
- whether there was any delay by the payer in applying under section 107 for a declaration once he or she know, or should reasonably have known, that he or she was not a parent of the child;
- whether her is another 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;
- the relationship between the payer and the child;
- the financial circumstances of the payee and the payer;
In this case, the court made Orders for Mr Hallis to be repaid all child support he’d paid for the child because the Court did not accept that Mr Hallis had willingly participated in any deception or fraud regarding parentage or child support. On the contrary, the Court accepted that:
- Mr Hallis believed the child was his child until he was told during the family law process that he was not the father;
- Mr Hallis had only continued in his relationship with Ms Fielder because he believed she was pregnant with his child;
- Mr Hallis sought parenting orders following from his understanding the child was his and Ms Fielder;
- the parties were living together at the time of registering the birth of the child, with their names listed on the birth certificate as the parents;
As to Ms Fielder, however:
- For a period of time in the Court proceedings, Ms Hallis conducted her case as though Mr Hallis was the father of the child;
- Ms Fielder had not told Mr Hallis that she had sexual intercourse with another man at about the time she became pregnant with the child; and
- the Court did not accept the evidence of Ms Fielder that the reason she had not told Mr Hallis that he was not the father of the child was because she was scared of him.
As such, despite Mr Hallis being in a much stronger financial position than Ms Fielder (factors under section 3B of the Act which could have persuaded the Court not to order the repayment of child support) the court took the view that in light of the findings made about her in the case, it would be “just and equitable” to order that she repay to Mr Hallis the child support wrongly paid to her.
If you have any questions regarding the payment of child support, including if you question the parentage of a child and seek parentage confirmation before agreeing to pay child support, call Sanicki Lawyers today on 03 9510 8999 to make and appointment to speak to Stephanie Hope, Senior Associate and Head of Family Law – or otherwise email Stephanie at email@example.com