By Mary Young – Principal Lawyer
We have previously discussed the legal framework governing parentage testing under the Family Law Act 1975 (FLA), including when parentage testing may be ordered and how the results are considered by the Federal Circuit and Family Court of Australia (Court).
In this article, we explore one of the key financial responsibilities that can arise from the confirmation of parentage — specifically, the obligation to pay child support and how Services Australia considers parentage when determining Child Support Assessments.
When is a parentage test required?
Parentage issues often arise not only in parenting disputes but also in relation to child support.
Establishing paternity through parentage testing is often a necessary first step to obtain a child support assessment from Services Australia. If testing confirms a person is not the biological father, that person can seek Orders from the Court to prevent a child support liability from being imposed upon them.
Child support and parentage typically intersect in two key situations:
- A person seeks to claim child support but needs confirmation of parentage to proceed; or
- A person disputes a child support obligation on the basis they are not the biological parent.
Services Australia cannot pursue child support from someone who is not named on the child’s Birth Certificate and who does not acknowledge parentage. Importantly, Services Australia is not required to investigate parentage when assessing a child support application. The Registrar may determine an application for child support based solely on the information provided with the application.
The Registrar can also rely on a presumption of parentage, and the onus is on the payer to challenge parentage, pursuant to section 29 of the Child Support (Assessment) Act 1989 (CSA).
The Registrar is to be satisfied that a person is a parent of a child only if the Registrar is satisfied:
- that the person is or was a party to a marriage and the child was born to the person, or the other party to the marriage, during the marriage; or
- that the person’s name is entered in a register of births or parentage information, kept under the law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, as a parent of the child; or
- that, whether before or after the commencement of this Act, a federal court, a court of a State or Territory or a court of a prescribed overseas jurisdiction has:
- found expressly that the person is a parent of the child; or
- made a finding that it could not have made unless the person was a parent of the child;
and the finding has not been altered, set aside or reversed; or
- that, whether before or after the commencement of this Act, the person has, under the law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, executed an instrument acknowledging that the person is a parent of the child, and the instrument has not been annulled or otherwise set aside; or
- that the child has been adopted by the person; or
- that the person is a man and the child was born to a woman within 44 weeks after a purported marriage to which the man and the woman were parties was annulled; or
- that the person is a man who was a party to a marriage to a woman and:
- the parties to the marriage separated; and
- after the parties to the marriage separated, they resumed cohabitation on one occasion; and
- within 3 months after the resumption of cohabitation, they again separated and afterwards lived separately and apart; and
- the child was born to the woman within 44 weeks after the period of cohabitation but after the dissolution of the marriage; or
- that the person is a man and:
- the child was born to a woman who cohabited with the man at any time during the period beginning 44 weeks and ending 20 weeks before the birth; and
- no marriage between the man and the woman subsisted during any part of the period of cohabitation; or
- that the person is a parent of the child under section 60H or section 60HB of the Family Law Act 1975.’’
If a person deemed liable to pay child support disputes parentage, they can apply to the Court pursuant to section 107 of CSA for a declaration that they are not a liable parent due to the absence of paternity.
In Taylor and McQuillan (Dandenong, 7 May 1990) the applicant male was assessed to pay child support in respect of a child born on 10 April 1990. He sought a declaration under section 107 of CSA that the assessment should not have been issued against him as he was not the father. His application was unopposed.
The applicant’s evidence was that the mother was 8 months pregnant when the parties met. In anticipation of a marriage, he allowed his name to be entered on the birth certificate. There was also corroborative evidence that the parties could not have met at the time of conception. Ultimately, he was successful in obtaining a section 107 declaration from the Court.
Recovery of Child Support after a finding of non-parentage
If a person paying child support is found not to be a liable parent, the original application for an administrative assessment is treated as though it was never accepted by the Child Support Registrar.
Once the Court grants a declaration that the person is not a parent, it must then consider whether to make a parentage overpayment Order – that is, whether the child support paid should be repaid.
Under section 143(3) of the CSA, when considering whether to make an overpayment Order or determining the amount to be repaid, the Court must consider several factors, including:
- Whether either party knew, suspected, or reasonably should have known that the payer was not the child’s parent.
- Whether either party, through action or omission, contributed to the acceptance of the original child support application.
- Any delay by the payer in seeking a court finding that they were not the child’s parent.
- Any delay by the payer in applying for a declaration under section 107 once they knew or should have known they were not the parent.
- Whether child support is or may become payable by the child’s actual parent.
- The nature of the relationship between the payer and the child.
- The financial circumstances of both the payer and the payee.
These considerations help the Court determine whether it is just and equitable to order repayment of any amounts paid.
Child support matters arising from parentage testing are complex issues that require detailed specialist advice. If you would like advice about these issues, please call us on 03 8672 5222 to arrange an appointment with one of our family lawyers.
