B and M

[2003] FMCAfam 113

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & M [2003] FMCAfam 113

CHILD SUPPORT – Application seeking declaration pursuant to s.107 of the Child Support (Assessment) Act and that child support payments be stayed – recover child support payments – basis of application is that Applicant is not the biological father of children – parentage testing determined that applicant is not biological father.

Child Support (Assessment) Act 1989, ss.107, 114, 117, 117(1), 117(2), 117(3), 117(5), 143, 143(3)

Tobin v Tobin (1999) FLC 92-848
Houlihan  & Houlihan (1991) FLC 92-248

Applicant: D B

Respondent: M M

File No: MLM 5255 of 2002

Delivered on: 8 May 2003

Delivered at: Melbourne

Hearing Dates: 19 & 29 November 2002

Judgment of: Bryant CFM

REPRESENTATION

Counsel for the Applicant: Mr Betts

Solicitors for the Applicant: Roberts Nehmer McKee, Solicitors

Counsel for the Respondent: Ms Weiner

Solicitors for the Respondent: Cohen Woolf & Weinberg, Solicitors

ORDERS

IT IS DECLARED:

1. That pursuant to s.107 of the Child Support (Assessment) Act 1989 the respondent is not entitled to administrative assessment of Child Support from the applicant for the children R B and L B.

IT IS ORDERED:

1. That there be a departure from administrative assessment child support for the child A B:

   (a)for the period 25 January 1999 to 1 December 2002 and Child Support payable by the liable parent D B for the said period be fixed at the amount paid by him to the Child Support Agency during that period and during the said period the liable parent D B not be entitled to any credit for any other payments made to the carer; and

   (b)for the period 1 December 2002 until 31 December 2004 the liable parent’s child support income be reduced by $4015 per annum and otherwise calculated in accordance with the administrative provisions of the Child Support (Assessment) Act1989.

2. The Child Support Registrar be requested to amend the Child Support Register to give effect to these orders.

3. That all outstanding Applications be dismissed.

4. That all exhibits be returned to the parties by whom they were tendered.

5. That all subpoenaed documents be returned to the persons from whom they were subpoenaed at the expiration of 30 days from the date of these orders.

IT IS NOTED:

1. That the intention of these orders is that the liable parent will have no liability for any arrears of child support for the child A B prior to the
   1 December 2002.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM5255 of 2002

D B

Applicant

And

M M

Respondent

REASONS FOR JUDGMENT

Introduction

1. The application brought by the father pursuant to the provisions of the Child Support (Assessment) Act 1989 (Cth) (“the Act”) seeks a declaration pursuant to s.107 of the Act that the respondent wife was not entitled to an administrative assessment of child support for two of their three children, R and L. The basis of the declaration sought is that the applicant is not the biological father of the children. Previous orders…