Repayment of Child Suport
Lawyers are sometimes asked whether a person can recover child support they have already paid upon learning that they are not the child’s parent. When an application for an administrative assessment for child support is properly made, it is accepted without the need to prove parentage. If a person has paid child support and has doubts about their parentage, it is critical that they seek independent legal advice without delay, to ensure time limits are met to seek an order for repayment of child support.
Presumptions of parentage
There are a number of situations that can give rise to a presumption of parentage. These include:
- Where a child is born during a marriage;
- Where the person is listed on the child’s birth certificate;
- Where a court has made a finding that a person is a parent of a child;
- Where a person has executed a document acknowledging that person is a parent of a child;
- Where a man lived with the woman who gave birth to the child for the time beginning 44 weeks before the birth and ending 20 weeks before the birth; and
- Where the person is a parent as a result of the operation of s60H or s60HB of the Family Law Act.
Administrative assessment of child support
There are a number of formulas that may be applied, depending on the family’s circumstances, to reach an administrative assessment of child support.
If a person disputes parentage of a child, they can apply to the court for a declaration that they should not be assessed because they are not the child’s parent. This application should be made within 56 days of the date of the decision to accept the application. Parentage testing may be ordered by the court, but this will only occur when there is some evidence that there is doubt around parentage of a child. If a person refuses to comply with a parentage testing order, then an inference can be drawn by a court that it is more probable than not that the test would not have assisted their case.
If the court is satisfied that the payer is not the child’s parent, it may grant a declaration pursuant to section 107(4) of the Child Support (Assessment) Act 1989. Once such a declaration is made, the Registrar is taken never to have accepted the payee’s application for child support.
Orders for repayment of child support
Once a declaration is made that a person who was previously thought to be the parent of the child should not have been assessed to pay child support, the court will consider whether to make an order for repayment of child support pursuant to section 143 of the Child Support (Assessment) Act 1981. This order is discretionary.
In considering whether or not to make an order for repayment of child support, the court considers:
- Whether the payer knew, suspected or ought to have suspected that the payer was not the child’s parent;
- Whether the parties engaged in conduct (by act or omission) which resulted in the Child Support Registrar accepting the application for an administrative assessment;
- Where there is any other child support which is or may become payable by the parent of the child;
- Any delay in the payer applying for a finding that the payer was not liable to pay child support;
- The relationship between the payer and the child; and
- The financial circumstances of the parties.
The court is unlikely to order repayment of amounts paid under a voluntary agreement between the parties prior to the making of an administrative assessment of child support.
In proceedings for the repayment of child support previously paid where no liability existed, the court can consider costs against the unsuccessful party, in addition to ordering wrongfully paid child support to be repaid.
Orders for the transfer of property
If a court makes an order for the repayment of Child Support previously paid which requires the payee to transfer property to the former payer (rather than a specified sum of money), the Child Support Registrar cannot register such an order for collection and the former payer will need to take his or her own enforcement action if this becomes necessary.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.