Wiltshire News

Monday, 7 November 2011

In a recent case of Levine & Levine [2011] FMCAfam 821 (22 August 2011) various issues relating to child support were discussed.

In this matter the Applicant sort the following Orders:

(1) Sought that the Court to make a declaration under the provisions of s.107 of the Child Support (Assessment) Act 1989 that he should not be assessed in respect of the costs of the child [X] who was born in 1995 on that basis that he was not the child’s father. Subsection 143(3) of the Act provides that: “In proceedings in a court under this section, the court may make such orders in relation to the payee 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”.

(2) The Applicant sought that the Respondent repay the following amounts under s.143:

(a) Payment of child’s school fees – a third party payment in lieu of child support $4,064.00

(b) Payments of child’s holiday expenses – a third party payment in lieu of child support $1,402.51

(c) Direct payments of child support paid to the Child Support Agency $12,969.34

(3) The Applicant also asked the Court to make an Order that the Respondent reimburse him for the cost of a parentage test report conducted by DNA Solutions dated 24 June 2010 in the sum of $695.00.

(4) He sought an Order that the Respondent pay his costs of the Application.

(5) The Applicant also needed leave to file and serve his Application out of time.

In this case the Respondent opposed all of the orders sought by the Applicant with the exception of the application for leave to proceed out of time.

Application being brought out of time.

The Respondent did not object to the Application being brought out of time.

The Federal Magistrate reasoned that the delay occurred because it was not until the Applicant’s mother started making comments about the child’s features that the issue of the child’s paternity was raised.

Subsection 107(2) of the Child Support (Assessment) Act 1989 prescribes that the application must be made within the time prescribed by the applicable Rules of the Court or within such further time as is allowed under those Rules. The applicable rules are the Federal Magistrates Court Rules 2001.

Subrule 25A.06(1) provides that: “A person must file an application for a declaration under subsection 106A(2) or 107(1) of the Assessment Act within 56 days of the service on the applicant of a notice given under section 33 or 34 of that Act”.

The Federal Magistrate found that the Applicant had provided a satisfactory explanation for the delay in making an application for a declaration. The Court has the power to extend the time for making an application under Rule 3.05.

Whether a Declaration should be made.

The Respondent refused to participate in a second DNA test to provide clearer results as to the child’s paternity and under subsection 69Z(3) of the Family Law Act 1975 says the Court may draw such inferences from a failure or refusal to consent as appear just in the circumstances.

The circumstances of this case satisfied the Federal Magistrate that the Court should make a declaration under subsection 107(1) of the Child Support (Assessment) Act 1989 that the Applicant should not be assessed in respect of the costs of the child because the Applicant is not a parent of the child.

Whether an Order should be made for Recovery of Child Support Payments from the Payee

Subsection 143(3A) was inserted by the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006. The subsection states:

- If:

- (a) a person (the payer) has paid an amount of child support to another person (the payee); and

- (b) the court has made a declaration under section 017 that the payer should not be assessed in respect of the costs of the child because the payer is not a parent of the child; and

- (c) the court

- (i) is considering whether to make an order under this section; or

- (ii) if such an order is to be made, is determining the amount that is to be recovered and whether payment is to be made in the form of a lump sum payment or periodic amount;

- then the court must have regard to the matters set out in subsection (3B). This subsection does not limit subsection (3).

Subsection 143(3B) sets out the six factors to which the Court must have regard. Whilst the Court may have an unfettered discretion, it is still bound to consider all of these factors:

(a) Whether the payee or the payer knew or suspected, or should reasonably have suspected, that the payer was not a parent of the child.

(b) 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.

(c) Whether there was any delay by the payer in applying under section 107 for a declaration once he knew, or should reasonably have known, that he was not a parent of the child.

(d) 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.

(e) The Relationship between the Payer and the Child.

(f) The Financial Circumstances of the Payer and the Payee.

Just and Equitable

After the above factors are taken into consideration then the Court has to make orders that are Just and Equitable.

Subsection 143(3) of the Act provides that: “In proceedings in a court under this section, the court may make such orders in relation to the payee 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”.

The Applicant sought that the Respondent repay the following amounts under s.143:

- Payment of child’s school fees – a third party payment in lieu of child support $4,064.00.

- Payments of child’s holiday expenses – a third party payment in lieu of child support $1,402.51.

- Direct payments of child support paid to the Child Support Agency $12,969.34.

In this case the Federal Magistrate was satisfied that the Court did not have any jurisdiction under the Child Support  (Assessment) Act 1989 to order repayment of amounts paid under voluntary agreement between the parties prior to the making of an administrative assessment of child support. Therefore, the Applicant’s claim for repayment to him of amounts paid for the child’s school fees in 2009 and the child’s holiday expenses in Bali in April 2009 failed.

The Federal Magistrate Ordered that the Respondent pay to the Applicant by way of recovery of child support payments for which the Applicant was not liable the sum of $12,969.34.

The Federal Magistrate was not satisfied that the cost of a DNA test obtained in the circumstances of this case was recoverable as the cost of a DNA test obtained by the Applicant on his own initiative, without the knowledge or consent of the Respondent and not as a result of an order under s.69W of the Family Law Act 1975 cannot form part of an order for costs under s.117(2) of the Act.

Costs

After considering the factors covered by section 117 of the Family Law Act 1975 the Federal Magistrate was satisfied that an Order for costs was appropriate.

The Respondent was given a period of four months to pay the costs and twelve months to pay the sum of $12,969.34.

If you have any issues in relation to child support please do not hesitate to contact the team at Wiltshire Lawyers to provide you with advice in this respect.


Emma Ludeke
Family Lawyer
Wiltshire Lawyers

Liability limited by a scheme approved under Professional Standards legislation.

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