Child Support Refunds

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The child support regime ensures that children receive a proper level of financial support from their parents. However, there are cases where the Courts have found that a payer parent was not in fact liable to pay child support in relation to a child. The question for the Court then becomes whether the payee parent should be ordered to repay the child support received.

How the Court can Order payments to be refunded

Pursuant to section 143 of the Child Support (Assessment) Act 1989 (Cth) (“the Act”), where child support is paid in circumstances where the payer is not liable to do so, the Court may order that the amount be recovered from the payee. However, before making such an Order, the Court must consider a number of factors, including the knowledge of the payee regarding paternity, any delay on the part of the payer and the parties’ financial circumstances.

Levine & Levine

In this case, the child, X was born in 1995 and the Applicant’s name was recorded on the birth certificate as X’s father. In 2010, the Applicant underwent a parentage test, without the Mother’s knowledge, which revealed that he was not X’s biological father. The Applicant advised the Mother of the result a few weeks later.

The Mother took issue with the testing process but also refused to consent to further testing. In any event, the mother did not dispute the conclusion of the testing. In those circumstances, the Judge was satisfied that a declaration pursuant to section 107(1) should be made, such that the Applicant should not be assessed in respect of the costs of the child.

The Judge ordered the Mother to pay the Applicant the sum of $12,969.34 by way of recovery of child support payments under section 143, in addition to legal costs in the amount of $4,038.50.

Percell & Mulroy

In this case, the Court made a declaration that the parties were in a de facto relationship from March 2000 to April 2011. As a consequence, the Father argued that the Mother was precluded from properly making an application for a child support assessment over those years. Section 25 of the Act provides that a parent of a child may apply for an assessment of child support subject to meeting certain conditions, including that the parents are not living together as partners on a genuine domestic basis (whether or not they are legally married).

The Court found that from 12 February 2001 to April 2011, the Mother was not a parent who could properly apply for an assessment of child support because she was not able to satisfy the requirements of section 25. The assessments made during that period were, therefore, improperly made and any child support paid by the Father could potentially be recovered from the Mother pursuant to section 143.

Conclusion 

Although the question of whether an individual is (or should) be liable to pay child support might appear a straightforward one, like most areas of the law, the answer is not always clear cut. If you have any concerns about your liability to pay child support, we recommend that you obtain legal advice. 

For more information

Levine & Levine [2011] FMCAfam 821

Percell & Mulroy [2017] FamCA 413