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Child Support in Australia – Do I Have to Pay if I Am Not the Biological Father?

11/08/2021

Watson & Watson Lawyers regularly act in parent child support cases. This can involve making applications to the Federal Circuit Court to obtain Orders departing from (changing) a child Support Assessment or seeking a review of a Child Support Assessment through the Child Support Agency of Australia.

In two recent cases Watson and Watson acted in cases in the Federal Circuit Court where the obligation to pay child support was challenged on the basis that the father named on the Birth Certificate, was not the biological father of the child.

In one case, the Australian Child Support Agency was enforcing an overseas assessment of a child’s support.  In the other case, the Child Support Agency in Australia had made an assessment requiring payment of child support. 

In both cases, the fathers who had been ordered or assessed to pay child support thought that they may not be the biological father of the child.  Both were named as the father on the Birth Certificate.

Child Support Agency – When will a person be regarded as the Father?

What Proof is Required?

The Child Support Agency of Australia must be satisfied that a person is a parent of the child before it can make a Child Support Assessment.  The Child Support Agency can be satisfied that a person is the father if at least one of the following applies:

  • The person’s name is on the child’s Birth Certificate.
  • The person swears a Statutory Declaration declaring he is the father of the child.
  • The person was married to the mother at the time the child was born.
  • The person was living with the mother when the child was conceived.
  • The person has adopted the child.
  • A Court has made an Order declaring a person to be the father of the child.

It will be the father who is likely to challenge a Child Support Assessment on the basis that he is not the biological father.

In both cases some or both of the criteria were satisfied and both fathers had been assessed for payment of child support. 

Watson & Watson were instructed to challenge the Orders and assessments.

Case 1 – Australian Child Support Agency Assessment

Background Facts

In this case, the parties had been in a de facto relationship and had separated.  The child resided with her mother and spent time with the father.  Difficulties arose in relation to the father spending time with the child and doubts arose in the father’s mind as to whether or not he was in fact the biological father of the child.  The Birth Certificate showed him as the father and he had been assessed for payment of child support. 

Action taken by Watson & Watson- Application to the Federal Circuit Court of Australia for an Order for Paternity Testing 

The Orders sought were:

1.       A declaration that the father should not be assessed in respect of the costs and support of the child because he was not a parent of that child.

2.       An Order that the mother submit herself and the child for paternity testing.

3.       A location Order to obtain the mothers address to enable service of the Application on the mother.

Watson & Watson made an Application for Substituted Service in circumstances where once again, the location of the mother of the child was unknown and the maternal grandmother refused to provide any information or to accept service. 

The Outcome

The mother obtained legal representation and refused to consent to the Application.  Section 69Y of the Family Law Act 1975 provides that if a person who is 18 or over contravenes a parentage testing order or an order under Section 69X the person is not liable to any penalty in relation to the contravention but the Court may draw such influences from the contravention as appear to be just in the circumstances. 

Watson & Watson conducted a hearing before a Judge of the Federal Circuit Court of Australia.  The evidence that had been filed and the submissions made resulted in the Judge making an Order that the person named on the Birth Certificate as the father was a person who should not be assessed in respect of the costs and support of the child because he was not a parent of that child.  The application was successful.  A copy of the sealed Order was served on the Child Support Agency and our client’s obligation to pay child support ended. 

Case 2 – Overseas Order Registered in Australia and being enforced by the Child Support Agency

Background Facts

In this case Watson & Watson acted for the putative father who resided overseas.  The mother and father had married overseas and lived overseas.  The child was conceived at a time when the parties had resumed cohabitation after a period of separation.  The child’s mother maintained that her husband was the father of the child.  The husband had doubts in relation to whether he was the father by reason of the nature of their relationship following resumption of cohabitation. They were living together at the time the child was conceived and he was shown as the father on the Birth Certificate.

The child’s mother returned with the child to live in Australia.  The Child Support Agency in Australia commenced enforcement proceedings against the father (our client) who lived overseas.

Action taken by Watson & Watson - Application to the Federal Circuit Court of Australia for an Order for Paternity Testing

Watson & Watson advised that it would be necessary to make an Application to the Federal Circuit Court of Australia and seek Orders for paternity testing.  Watson & Watson made enquiries in relation to the cost and time frame for completion of the paternity testing.  The mother and daughter were to be tested in Australia and the father was to be tested in the country in which resided.  Identification of a Medical Practitioner qualified to take the father’s sample and send that to Australia by secure means was identified. 

The Orders sought were:

1.       A declaration that the father should not be assessed in respect of the costs of the child because he was not a parent of that child.

2.       An Order that the mother submit herself and the child for paternity testing.

3.       A location Order to obtain the mother’s address to enable for service of the Application on the mother.

In this case, father did not know where in Australia the mother resided and he did not have any contact with the child but was still required to pay child support. 

As a preliminary matter, Watson & Watson sought Interim Orders from the Federal Circuit Court to obtain on a confidential basis, an address for the mother from the Commonwealth Department of Human Resources.  That Application was granted and the address for service of the Application and arrangements for the paternity testing were provided to Watson & Watson on a confidential basis.

Orders Made by the Court and the Outcome

Watson & Watson prepared the Application and the supporting evidence for the application.  The evidence encompassed the facts and circumstances surrounding the relationship between the father and mother at the time the child was conceived and subsequent events.  On the basis of the evidence, the Federal Circuit Court made an Order for paternity testing.  A sample of the father’s DNA was to be taken in the country in which he resided.  The mother and child provided their DNA samples in Australia.  The DNA test indicated that the father was the biological father of the child. The test results were conclusive.

In this case and in circumstances where the paternity test positively identified him as the father, the case was settled and resolved. 

Overview

The practical outcome of these types of applications will be dependent upon the results of the paternity testing conducted.  In most circumstances, the test results will indicate that a person is the father of a child to 99.9% accuracy. 

If there is a claim that you are the father of a child and you wish to dispute the claim or if you are in dispute with the father of your child/ren and are unsure of what your rights are or the remedies available to resolve the matter of unpaid or disputed child support, our experienced Family Lawyers can assist you in achieving a positive resolution.  Please contact Richard Watson Senior Family Lawyer or his Personal Assistant Shereen Da Gloria to discuss your matter and seek appropriate advice sooner rather than later.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.

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