The Court has the power to order that the payee (person receiving child support) repay child support where it is proven that the payer (person paying child support) is not liable, or becomes not liable to pay child support.
This happened in a recent case before the Federal Circuit Court of Australia, where a mother was required to repay child support of $4,142.73 plus costs of $5,000.00 to a man, Mr Hallis, following her “bombshell” admission during proceedings for parenting arrangements that Mr Hallis was not the father of the subject child.
The parties were in a de facto relationship for approximately one year before they separated. Evidence accepted by the Court was that the mother was not coping with the separation and attempted self-harm. The parties subsequently spent a night together leading to them briefly getting back together following the mother finding out she was pregnant.
Mr Hallis was recorded as the father on the child’s birth certificate. Mr Hallis had regular contact with the child. He paid child support.
The proceedings were commenced by Mr Hallis upon the mother ceasing contact between him and the child, who was 16 months old at the time of the hearing. During a court ordered family dispute conference, the mother made a “shocking revelation” that Mr Hallis was not the father of the child.
The mother provided conflicting evidence about her knowledge of Mr Hallis not being the father of the child. Prior to the admission, the mother referred to Mr Hallis as the father. Initially following the admission, the mother alleged she had not told Mr Hallis because she was “terrified” of him. Subsequently, the mother alleged both parties were aware that Mr Hallis was not the father, but continued to conceal it so as not to cause Mr Hallis any embarrassment in front of his family. The Court favoured Mr Hallis’ version of events that he had no knowledge or reason to believe that he was not the father of the child.
A parentage test was ordered by the Court and it was confirmed that Mr Hallis was not the child’s father.
The Court is required to consider a number of factors when deciding whether or not a party should repay child support to the other party as follows:
- Whether either party knew, suspected or should have reasonably known that the payer was not a parent of the child;
- Whether either party engaged in any conduct that resulted in an application for assessment of child support being accepted;
- Whether there was any delay in the payer applying for a declaration once they knew they were not a parent of the child;
- Whether the payee could obtain child support from the actual parent of the child;
- The relationship between the payer and the child; and
- The financial circumstances of the payee and payer.
In this case, the Court found that
- Ms Fielder knew that Mr Hallis was not the parent, and was likely to have known prior to the child’s birth.
- It was improbable that Mr Hallis would have recommenced his relationship with the mother had he known he was not the father of the child.
- There was no secret agreement between the parties to conceal the child’s conception and no evidence of coercion on the part of Mr Hallis.
- It was clear that Ms Fielder misled Mr Hallis and the Registrar of the Child Support Agency, given that she took no steps to remove Mr Hallis as the father until he pursued an application with the Court for orders to spend time with the child.
- The mother resisted any relationship between Mr Hallis and the child, and Mr Hallis no longer wished to pursue the relationship upon finding out he was not the father.
- The mother is not in a strong financial position. However her conduct led the Court to believe that it would not be just and equitable for an order not to be made.
In addition, because of the mother’s conduct, it was relevant to consider if a costs order should be made against her. The Judge ordered that the mother pay a fixed amount of $5,000.00 towards Mr Hallis’ costs.