DRP & AJL - [2004] FMCAfam 440

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DRP & AJL

[2004] FMCAfam 440

CHILD SUPPORT – Enforcement of orders – payment and recovery – recovery of overpayments – adjustment of parties’ rights under s.143(3) – relevant considerations – payer unaware of the possibility that he was not the father of the child at time of payment of child support.

Child Support (Assessment) Act 1989, ss.22, 29, 98u, 107, 117, 124, 125, 129, 131, 137, 143.

Child Support (Assessment) Regulations 1989, r.4
Family Law Act 1975, ss.66d, 66f, 66m, 66n, 75(2), 79, 117

Axtellv Axtell (1982) FLC ¶91-208.
B & B & DCSR [2001] FCA 1371 (Unreported).
B & McL [2002] FMCAfam 113 (Unreported).

Cattanach v Melchior [2003] HCA 38; (2003) 77 ALJR 1312.

Cominos v Cominos (1972) 127 C.L.R. 588.

Cook and Maxwell JJ.; Ex parte C & Anor, Re (1985) FLC ¶91-619 (HC).

Cooper and Cooper (1989) FLC 92-017.

David Securities Pty Ltdv Commonwealth Bank of Australia (1992) 175 CLR 353.

Day and Day (1993) FLC ¶92-333.
Dodge and Krapf and Krapf (1991) FLC ¶92-214.
Duncan and Duncan (1991) FLC ¶92-218.
G and N (2003) FLC ¶93-160.
G and T (Unreported, DGF3156/94, Wilczek J, 18/10/02).
Hallinan v Witynski (1999) FLC ¶98-009.
Hides v Hatton (1997) FLC ¶92-759.
Hill v Hill (Unreported, SA 88 of 2002, Kay J, 16/04/2003).
Kemp v King (1996) FLC ¶92-672.
McFarlane v Tayside Health Board [2000] 2 AC 59.
Mee and Ferguson (1986) FLC ¶91-716.
Mercer v The Child Support Registrar [2004] FCA 465.
Mulvena v Mulvena; Butler; Edwards (1999) FLC ¶98-006.
Norbis v Norbis (1986) FLC ¶91-712 (HC).
O'Hara and McGuinness (1991) FLC ¶92-220.
P v B [2001] 1 Fam LR (Eng) 1041.
Soblusky and Soblusky (1976) FLC ¶90-124.
Tobin and Tobin (1999) FLC ¶92-848.
V & V [2002] FMCAfam 408.

Veldhuisen v Veldhuisen (Unrep., Supreme Court of NZ, 20 Dec 1977, D667/76, Chilwell J); noted at [1978] Butterworths Current Law 75.

W v G (1996) 20 Fam LR 49
W & H [2004] FMCAfam 28.
Y & Y [2001] FMCAfam 258 (Unreported).

Applicant:

D R P

Respondent:

A J L

File No:

MLM 3440 of 2004

Reasons Delivered on:

20 September 2004

Delivered at:

Melbourne

Hearing and Judgment Date:

1 September 2004

Judgment of:

Riethmuller FM

REPRESENTATION

Counsel for the Applicant:

Mr Mort

Solicitors for the Applicant:

Slater & Gordon

Counsel for the Respondent:

Mr Holmes

Solicitors for the Respondent:

Pearsons

ORDERS

The respondent do pay the applicant the sum of $5,000.00 pursuant to section 143(3) with respect to the child support arrears over and above the moneys currently held by the Child Support Agency.
The respondent do pay the applicant’s costs fixed in the sum of $3,735.00 – such costs to be paid in weekly instalments of $100.00, commencing on 10 September 2004.
The proceedings be removed from the list of cases awaiting final determination.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 3440 of 2004

D R P

Applicant

And

A J L

Respondent

REASONS FOR JUDGMENT

This matter came before me on 1 September 2004 in the child support list at Melbourne. I made final orders on that day and said that I would deliver reasons later. These are my reasons.

Background

The applicant in this matter is named as the father of the child LD born 8 December 1999 on the child’s birth certificate, and consequently the payer in a Child Support Agency assessment for the child. The applicant brings an application seeking the following orders:
1.That pursuant to Section 107 of the Child Support (Assessment) Act 1989 the Applicant be declared a non liable parent due to the absence of paternity with respect to the child [LD] born on 8 December 1998 (sic).
2.That pursuant to Section 143 of the Child Support (Assessment) Act 1989 the Applicant be entitled to recover Child Support payments made to the Respondent Mother J A with respect to the child [LD] born on 8 December 1998 (sic).
3.That the Respondent pay the Applicant’s costs of and incidental to this Application.
The mother filed a response seeking orders in the following terms:
1.That pursuant to s107 of the Child Support (Assessment) Act the Respondent be declared a person not entitled to an administrative assessment of Child Support from the Applicant for the child [LD] born 8 December 1999 (“the child”).
2.The Application otherwise be dismissed.
At the hearing of the matter there was no dispute that the applicant was not in fact the biological father of the child, as evidenced by DNA paternity testing. This was confirmed in a letter from the mother’s solicitors to the applicant’s solicitors on 12 May 2004 including the following terms:
We are instructed that our client will consent to an order pursuant to Section 107 of the Child Support (Assessment) Act 1989 but will not consent to an order pursuant to Section 143 of the said Act.
Our client will also consent to the immediate cessation of the collection of Child Support payments.
It remained for me to determine what moneys the applicant should be entitled to recover from the mother pursuant to section 143 of the Child Support (Assessment) Act 1989 (“the Act”). Section 143 of the Act provides as follows:
(1) Where:
(a)an amount of child support is paid by a person to another person; and
(b) the person is not liable, or subsequently becomes not liable, to pay the amount to the other person;
the amount may be recovered in a court having jurisdiction under this Act.
(2) Where:
(a) an amount is paid by a person to another person for a child in relation to a period under an order made under section 139 (Urgent maintenance orders); and
(b) child support does not become payable by the person to the other person for the child in relation to the period;
the amount may be recovered in a court having jurisdiction under this Act.
(3) In a proceeding in a court under this section, the court may make such orders as it considers just and equitable for the purpose of adjusting or giving effect to the rights of the parties and the child concerned.
(4) An amount paid to the Commonwealth under section 30 of the Child Support (Registration and Collection) Act 1988 is to be taken, for the purposes of this section, to have been paid to the person to whom, apart from that section, the amount would have been payable.
The quantum of the child support paid by the applicant to the mother was agreed at the commencement of the proceedings. In this case the child support paid is a large sum that has been paid since August 2000 and can be usefully categorised as follows:
a)Child support paid between August 2000 and March 2004 which has been forwarded by the Child Support Agency to the mother in the sum of $20,928.44; and
b)The sum of $3,358.18 collected by the Child Support Agency since these proceedings commenced and which is currently held by the Child Support Agency pending the outcome of the proceedings.
The moneys currently held by the Child Support Agency will be refunded to the applicant as a result of the paternity order in these proceedings. There is no dispute with respect to the repayment of these monies to the applicant.
The issue that remains for determination is whether or not the mother should be ordered to re-pay all or part of the sum of $20,928.44.
During the course of evidence the applicant said that he was really only seeking the sum of $5,000.00 so that he could repay his mother monies that he borrowed for legal expenses relating to proceedings with respect to contact with the child, and the costs of these proceedings and the DNA testing. He stated that in his view, having regard to the financial circumstances of the mother, he thought that this was fair and reasonable.

Findings of fact

In this case the parties were married on 30 May 1998, having been in a relationship since November 1996. They separated on 8 August 2000.
In the period around the time of the conception of the child the parties were in a married relationship living together. The applicant was, until late last year, completely unaware of the possibility that the child was not in fact his biological child. The mother sets out the circumstances relating to conception and her conduct thereafter at paragraphs 14 and 15 of her affidavit in the following terms:
14.The Applicant and I had a stormy and argumentative relationship. He occasionally inflicted violence upon me. On one occasion after the Applicant and I had argued in early 1999 I left the former matrimonial home and sought comfort from a friend. I had then known this person for approximately ten years. He and I had been close before I was married and, afterwards, we maintained a friendly relationship on the phone. On this occasion I recall being very upset as the Applicant had struck me during the course of an argument we were having. On that occasion I had sexual relations with this man. The Applicant and I reconciled and continued the marital relationship. I recall having a menstrual cycle immediately after being with my friend. At no time did I consider the possibility that the pregnancy resulted from the affair as I believed that the fact I had a period after sleeping with my friend meant that I could not be pregnant to him.
15.I discovered I was pregnant after going to see a doctor for a medical certificate as I had left work feeling unwell. The doctor asked if there was a possibility that I might be pregnant. I had not considered. (sic) He conducted an on the spot pregnancy test and told me that I was. I recall being very excited. I went straight home to share the news with the Applicant. We then went to my parents and his parents in order to share our exciting news. I had no question in my mind that the Applicant was the father of the child. At no time did I consider the possibility that the Applicant was not the father.
The applicant, in his affidavit, sets out the history of the relationship in the following terms:
5.During the Wife’s pregnancy I provided her with significant financial and emotional support.
6.I was present at the birth of [the child] on 8 December 1998.
7.At the time of [the child’s] birth I had no inclination that I may not be the biological father of [the child].
8.Throughout my relationship with the Wife and throughout the Wife’s pregnancy she at no time suggested that I may not have been [the child’s] biological father. Indeed, the Wife’s insistence that I was definitely the biological father of [the child] resulted in me placing my name on [the child’s] birth certificate.
9.I have been actively involved in [the child’s] day to day care since her birth. I have assisted with feeding, bathing and clothing [the child] and have diligently executed all other parental responsibilities associated with [the child’s] day to day needs.
10.From the date of [the child’s] birth until the Wife and I separated on 8 August 2000, the Wife, [the child] and I resided together as a family unit. Consequently, I spent significant time with [the child] and we developed a close bond.
11.I greatly enjoyed playing with [the child] and assisting in her care. I would often help settle [the child] prior to bedtime and cherished all of the time which I was able to spend with her.
12.Soon after the Wife and I separated in 8 August 2000, she applied to the Child Support Agency for an Administrative Assessment in relation to my Child Support Liability in respect to [the child]. As I believed that I was [the child’s] biological father, I was happy to financially contribute towards her needs and have been paying the Wife Child Support payments of $230 per week since the Wife applied to the Child Support Agency for an Administrative Assessment…
13.After separation, I had significant difficulty organising contact with [the child]. The Wife was often unwilling to make [the child] available for contact. As a result of the difficulties experienced with respect to my organising contact with [the child], the Wife and I were forced to seek a judicial decision in relation to such matters. Orders were made by consent on 26 April 2001 in the Family Court of Australia with respect to children’s issues…
14.Final Orders were made by consent in the Family Court of Australia with respect to children’s issues on 14 October 2003…
15.Since the making of the Orders on 26 April 2001 I have taken contact with [the child] in accordance with those Orders.
16.In or about January 2004 I was advised by a close friend of mine and work colleague that I was not the father of [the child]. This man confirmed to me that he had had an affair with the wife and that [the child] was indeed his child. This friend informed me that the Wife was aware that he was the biological father of [the child].
17.I was extremely surprised and shocked to receive this information from a close friend. However, due to my friend’s certainty with respect to the fact that he was the true father of [the child] I considered it appropriate that the Wife, [the child] and I undertake paternity testing.
18.I subsequently instructed my solicitors to write to the Wife’s solicitors suggesting that a paternity test be undertaken…
It also transpired in evidence that since separation the parties have had a property settlement whereby the wife received approximately 66 percent of the asset pool and the husband approximately 33 percent. It is clear that at least one of the factors leading to that percentage split of property was the care by the wife for the child which, at that time, was considered a biological child of their relationship.
During cross examination the applicant said that the question of paternity was raised in jest soon after the mother became pregnant as he believed that the mother had fallen pregnant very quickly after they decided to have a child. He said that the mother said to him that she was sure that it was his and that he thought no more of it. This does not appear in his affidavit. The mother denies that this occurred. I observed both parties in the witness box. I accept the mother’s evidence on this point.
The mother says that she never contemplated that the child may not be the child of the applicant until such time as the paternity testing was disclosed. She relies upon the evidence that she gave that she had a menstrual cycle after she last slept with the putative father. The mother refused to disclose the identity of the likely father and was somewhat coy as to the circumstances of the conception saying only that she had met with the putative father for coffee and that they then “went somewhere”. She said that she had ceased taking the contraceptive pill for a month before she fell pregnant. She said that whilst she had a relationship with the putative father for some ten years she only had sexual intercourse with the putative father on the one occasion.
I find the proposition that it did not cross the mother’s mind that the putative father could possibly be the biological father of the child difficult to accept. It was clear that she had had sexual relations with two men at the relevant time, and could have fallen pregnant to either. She said that she never raised with the doctor any issue with respect to the menstrual cycle, nor has any evidence been produced as to the likely conception date having regard to her menstrual cycles, the size of the child in any ultrasound scan, or the date of birth of the child. She said that she was unaware that it is possible for women to have some form of menstrual cycle after conception but in the early stages of pregnancy. I did not find her evidence on this issue convincing. It was obvious that there was a possibility that the putative father could be the father of the child. The mother, at best, acted with gross indifference by simply choosing to ignore this and deny the father the relevant information.
There was nothing, of which the applicant was aware, which would have led him to have any doubt as to the paternity of the child. It is not appropriate to suggest that the applicant ought to have taken any active steps to inquire of the mother as to the paternity of the child when the child was conceived in a matrimonial relationship where there was no suggestion of infidelity. Indeed, to make such enquiries would be offensive and destructive to the relationship that most married spouses enjoy. There is no conduct of the applicant, with respect to these issues, that should be the subject of criticism.

Relevant considerations under s.143(3)

The issues arising in cases under section 143 are significant and difficult.
Section 143(1) provides that the child support paid ‘may be recovered in a court having jurisdiction’ The court must determine what orders would be ‘just and equitable for the purpose of adjusting or giving effect to the rights of the parties and the child concerned’ under s.143(3).
There have been a number of decisions on this topic:
a)In the matter of B & B & DCSR [2001] FCA 1371 (Unreported) the parties had, in full knowledge that the father named in the documents was not the biological father, signed birth certificates and made representations to the Child Support Registrar that he was the father. Her Honour, Dawe J, noted that the father ‘had not been tricked’, and that the circumstances were not a mistake of fact or law to which the principles set out in David Securities Pty Ltdv Commonwealth Bank of Australia (1992) 175 CLR 353 would apply. David Securities is a seminal judgement with respect to the law relating to money paid under a mistake of fact or law, and by analogy may assist in guiding the exercise of the statutory discretion under section 143. However, it must be kept in mind that whilst cases in equity may provide useful guidance in particular circumstances, they should not be approached as authority governing the exercise of the statutory discretions in family law legislation: to do so would be to ‘confine the discretion more narrowly than the Parliament intended’: see Norbis v Norbis (1986) FLC ¶91-712.
b)In Y & Y [2001] FMCAfam 258 (Unreported), Federal Magistrate Donald ordered the repayment of $21,953.00 in circumstances similar to this case. In that case the mother was aware of the possibility and may have had some suspicions or fear that the named father was not in fact the biological father, but had done nothing more.
c)In G and N (2003) FLC ¶93-160 Bryant CFM (as her Honour then was) stated that the section provided a code for dealing with overpayments, but did not consider the relevant factors to be considered in exercising the discretion under section 143 as the case concerned a maintenance order under the Family Law Act. Her Honour said:
22. The Child Support (Assessment) Act 1989 (the CSAA) is not applicable in this case because the parties separated and the child was born before the commencement of the CSAA in October 1989. It is important to draw that distinction because the CSAA provides what is in effect, a statutory code, which includes the ability to order repayments of child support where it is subsequently found there was no liability on the part of the payer, in the discretion of the Court.
23. The CSAA provides certain circumstances in which a person can be assessed as having a liability for payment of child support for a child. The Act then provides a means for a person who has been found liable to pay child support, but who contends that they are not the parent of the child, to make application for a declaration that the Applicant was not entitled to administrative assessment. This normally includes an Application to a Court exercising jurisdiction under the FLA to make an Order for parentage testing.
24. If it is established that the liable parent is not the parent of a child, then the Court can make a declaration pursuant to s 107(1) of the CSAA. Section 143 of the CSAA enables child support to be recovered and the Court having jurisdiction under the CSAA, where that person is not liable or subsequently becomes not liable to pay the amount to the other person.
25. Accordingly, the CSAA clearly provides a code for what is to happen in cases where a liable person turns out not to be the biological parent, and it is quite clear, pursuant to s 143, a Court having jurisdiction under the CSAA, can in its discretion order repayment to the person having made payments pursuant to an assessment.
d)In G and T (Unreported, DGF3156/94, Wilczek J, 18/10/02) the court considered a matter where there was little evidence on which to consider the discretion under section 143. The husband was unemployed and the wife reliant upon social security benefits. His Honour said:
In the absence of any other evidence I conclude that it is just and equitable to make the orders sought by the husband [for refund of the monies paid], on the basis that it is not just and equitable to require a man to have paid child support for a child that is not his and there being no other facts or circumstances which might suggest that the end result should be otherwise.
e)In B & M [2003] FMCAfam 113 Bryant CFM (as her Honour then was) found that the mother had not kept from the husband doubts as to paternity, although she had lead him to believe that it was highly likely it was his child. Her Honour did not order re-payment, saying:
47.That [the mother did not keep information from the husband] is important in my view because the husband thereafter made decisions about the support of the children and about the way in which the parties would conduct themselves as a family in this knowledge. The husband could at any time after the child support assessment was initially made in 1999 have requested paternity testing to satisfy himself that he had an obligation to support the children.
f)In W & H [2004] FMCAfam 28 Federal Magistrate Scarlett, in a brief judgement, referred to the absence of ‘a relationship akin to that [of a] parent’ (at paragraph [10]) before ordering repayment of the full amount.

‘Justice and equity’ under section 143

The requirement that the court make orders that are ‘just and equitable’ is contained in a number of provisions of the Child Support (Assessment) Act. The most well known use of the term appears in section 117 (departure orders in special circumstances). Section 117 contains an extensive inclusive definition that lists matters that the court must specifically consider: see Hides v Hatton (1997) FLC ¶92-759 and Hallinan v Witynski (1999) FLC ¶98-009. The inclusive definition contained in section 117 is imported into Part 6a of the Act and sections 124, 125 and 129 (non-periodic child support orders): sections 98U(3), 124(3), 125(5), and 129(5) respectively.
There is no definition or list of factors to be considered in determining whether a particular order is ‘just and equitable’ under any of sections 131 (discharge of non-periodic support orders), 137 (discharge of agreements obtained by fraud or undue influence) or 143. However, as section 131 is to operate with respect to orders made under sections 124, 125 or 129, the section 117 inclusive definition will be relevant.
In Kemp v King (1996) FLC ¶92-672 Murray J considered the meaning of the term ‘just and equitable’ (as it appeared in the De facto Relationships Act 1991 (NT) ) at some length, stating:
With the greatest of respect I follow the dicta in Dwyer v Kaljo [(1992) DFC ¶95-127] at 76,598 and rule that the words ‘just’ and ‘equitable’ in sec 18 are not synonymous. In R v Minister of Housing and Local Government [1955] 1 WLR 29, it was held that ‘equitable’ (in relation to the UK Public Health Act 1875) means ‘fair and reasonable’ and does not exclude points of law. I apply the same reasoning to ‘equitable’ in sec 18, and hold that ‘equitable’ infers a remedial justice and permits the Court to apply equitable principles by analogy if it is necessary to do so. I consider ‘just’ to have a wider meaning, embracing the consideration and weighing up of all factors relating to the direct and indirect financial and non-financial contributions of each partner to property, financial resources and welfare of the family, but subject to the limitations I set out hereafter, the result must be fair and reasonable.
Importantly, the factors considered relevant by Murray J under the Act her Honour was considering were drawn from a consideration of the factors relevant to the issues arising under that Act. A similar analysis must be undertaken with respect to the context of section 143 and the Child Support (Assessment) Act.
The term ‘just and equitable’ cannot be interpreted to simply mean ‘unfettered individual opinion’ as this would not provide a sufficiently certain definition to allow for the discretion to be an exercise of judicial power: Cominos v Cominos (1972) 127 C.L.R. 588. As a result, the process of considering the issues arising under section 143 must be approached judicially, and the factors relevant to the exercise of the discretion in the particular case identified and applied.
In determining the relevant factors under section 143 the features of the child support scheme and general law that relate to these issues should be considered to place section 143 in its broader context.

Liability under the Child Support (Assessment) Act

A person may become a liable parent under the child support scheme in a variety of circumstances, including adoption and artificial conception procedures: see Tobin and Tobin (1999) FLC ¶92-848. A person becomes liable under the provisions of the Child Support (Assessment) Act as an incidence of their biological relationship with a child, or specific statutory provisions pursuant to which the person has formally assumed the rights and responsibilities of parenthood (adoption and artificial conception).
Notably, there are many circumstances where paternity will be presumed by the Registrar of the Child Support Agency, where it is not unlikely that the payer may ultimately be demonstrated not to be the biological father of the child: see section 29 of the Child Support (Assessment) Act. The section simply creates a rebuttable presumption that shifts the onus of challenging the presumption onto the payer. This must be done within the 28 day time limit for s.107 applications provided by the rules, or an extension of time sought (see V & V [2002] FMCAfam 408). However, the court would not wish to encourage payers to challenge an assessment unless there are circumstances warranting such a challenge: in some cases those circumstances will only be known to the other party and must first be communicated to the payer.

Maintenance under the Family Law Act

The child is not a child of the marriage, as the term is defined in section 60f of the Family Law Act:
60F(1) Child of a marriage A reference in this Act to a child of a marriage includes, subject to subsection (3) , a reference to each of the following children:
(a) a child adopted since the marriage by the husband and wife or by either of them with the consent of the other;
(b) a child of the husband and wife born before the marriage;
The applicant is a step-parent of the child, as the term is defined in section 60d of the Family Law Act:
step-parent, in relation to a child, means a person who:
(a) is not a parent of the child; and
(b) is or has been married to a parent of the child; and
(c)treats, or at any time during the marriage treated, the child as a member of the family formed with the parent.
That a step-parent relationship (at law) may arise retrospectively is accepted. In Duncan and Duncan (1991) FLC ¶92-218 the parties were in the process of adopting a child when they separated. The adoption proceeded, resulting in the child retrospectively becoming a child of the mother’s during the relationship by operation of the law relating to adoption.
In Mee and Ferguson (1986) FLC ¶91-716 the Full Court referred to the historical survey of the legal implications of the step-parent relationship in Re Cook and Maxwell JJ.; Ex parte C & Anor (1985) FLC ¶91-619 (HC), per Deane J at 80,090 et seq, and went on to state:
Without unduly exploring this aspect a number of categories are within common experience, varying from circumstances where the stepparent (a) has taken over fully the financial responsibilities of the stepchild; (b) has taken over those responsibilities to the extent that they are not covered by the reasonable financial efforts of the other parent; (c) where the two ''families'' are financially independent from each other; and (d) various shades and combinations of those. Unfortunately these arrangements are rarely explicitly spelt out between the relevant persons. It is often a matter of inference at the time of the marriage and may develop and change as time goes on. It is unsatisfactory that the later ascertainment of rights and duties in this area should depend on issues of degree and ex post facto evidence. On the other hand there are obvious difficulties about laying down a general rule which applies inflexibly to the various situations.
The fact that marriage, as opposed to a de facto relationship, is necessary to found a step-parent relationship for the provisions of the Family Law Act is, at least in part, a result of the constitutional limitations upon the power of the Commonwealth to legislate in this area. Fortunately, in this case I do not need to decide whether the absence of a marriage is significant in considering the discretion under section 143(3), although similar obligations have been imposed relying upon the principles of equity: see W v G (1996) 20 Fam LR 49.
The Family Law Act has been amended since Mee and Ferguson (supra) so as to require an order of the court before a duty to maintain a step-child can arise. It is only open to the court to order that a step-parent maintain a child in the circumstances set out in section 66m and 66n of the Family Law Act. Those sections provide:
66m When step-parents have a duty to maintain (1) As stated in section 66d, a step-parent of a child has a duty of maintaining a child if, and only if, there is an order in force under this section.
(2) A court having jurisdiction under this Part may, by order, determine that it is proper for a step-parent to have a duty of maintaining a step-child.
(3) In making an order under subsection (2), the court must have regard to these (and no other) matters:
(a) the matters referred to in sections 60f, 66b and 66c; and
(b)the length and circumstances of the marriage to the relevant parent of the child; and
(c)the relationship that has existed between the step-parent and the child; and
(d)the arrangements that have existed for the maintenance of the child; and
(e)any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.
66n Determining financial contribution of step-parent In determining the financial contribution towards the financial support necessary for the maintenance of the child that should be made by a party to the proceedings who is a step-parent of the child, the court must take into account:
(a) the matters referred to in sections 60F, 66B, 66C, 66D and 66K; and
(b) the extent to which the primary duty of the parents to maintain the child is being, and can be fulfilled.
Section 66d sets out the priorities to be attached to the duties of parents and step-parents to provide financial support:
66d(2) Priority of step-parents' duty. Any duty of a step-parent to maintain a step-child:
(a)is a secondary duty subject to the primary duty of the parents of the child to maintain the child; and
(b)does not derogate from the primary duty of the parents to maintain the child.
There are few examples of the operation of the step-parent maintenance provisions under the Family Law Act:
a)In Cooper and Cooper (1989) FLC 92-017 Mullane J declined to make a step-parent maintenance saying (at 77,340):
The conclusions that I therefore reach are that the wife has not established that this is a proper situation for the husband to have a duty to support the step-children, and the reasons for that are:
(1) There is no evidence to establish that the financial support of the natural father is not available to them. No efforts have been made to locate him or obtain financial support from him and to make an order in those circumstances would be contrary to sec. 66A, 66B and subsec. 66G(3).
(2) Relative to the age of the children the husband's association with them has been a very short one and of little significance in their lives. The marriage lasted only eight months, the children have had no contact with the husband for more than three years and there is every likelihood that they will have no contact with him in the future. There has been no arrangement for him to support the children before the marriage nor since the separation.
(3) The special circumstances which I referred to, namely the delay of more than three years during which period the husband has remarried without notice of this claim, and has also settled property matters with the wife.
b)In Dodge and Krapf and Krapf (1991) FLC ¶92-214 the obligation was found to exist, but only to the extent that the biological parents could not fulfil that obligation, and in the circumstances no order was made against the step-father.
c)In Day and Day (1993) FLC 92-333 Kay J reviewed a step-parent obligation that was the subject of an existing step-parent maintenance order. No steps had been taken to pursue the biological father. His Honour concluded that:
In this matter cohabitation between the parties lasted only for two years or thereabouts. There have been post-cohabitation, another couple of years of access, and since then two years of no access to K.
As to the relationship that has existed between the appellant and the child, there was a satisfactory relationship for some four years. There has been a non-existent relationship for the last two years, and the child is now in the custody of her maternal grandparents.
…
In my view, given that this was a very short period of cohabitation, given that there has been since then a change in the custody of the child and a breakdown in the relationship between the child and the appellant, it is no longer in my view appropriate that the step-parent should bear any burden for the support of K.
d)In Duncan and Duncan (1991) FLC ¶92-218 Murray J found that the husband was not earning enough income to justify an order.
e)In Hill v Hill (Unreported, SA 88 of 2002, Kay J, 16/04/2003) an obligation was imposed, notwithstanding that the relationship had deteriorated to the point where the step-father was not seeing the child. There was no evidence as to the capacity of the biological father. However this was not of great moment in the context of the case as it appears clear that the biological father would not have had any capacity (the wife brought the child with her form the Philippines where she had been living in an impoverished state before the marriage). However, the extent to which the husband had assumed responsibility for the step-child is demonstrated by the fact that he was an Australian who married the wife in the Philippines and arranged for her (and the step-child) to live in Australia where they commenced cohabitation.
The number of step-parent maintenance cases that come before the court is relatively small.
The considerations that are relevant under sections 66d, 66m, and 66n, whilst not imported by the terms of section 143, appear to be considerations that would be relevant to the exercise of the discretion to adjust the rights of the parties or child under section 143(3). This conclusion is also supported by the attitude of the common law courts to the law of torts in this area: see paragraph 57 below.
It appears clear that it would be just and equitable to adjust the rights of the parties so that the payee did not have to repay monies under section 143 in circumstances where maintenance would have been ordered under section 66m, if the payee had sought step-parent maintenance rather than child support. (Similar considerations would apply in cases excluded by section 22 and regulation 4 of the Child Support (Assessment) Act and Regulations, as a result of section 66f of the Family Law Act). Indeed, one would expect that in appropriate cases the mother would make an application for section 66m orders to be heard at the same time as the section 143 proceedings, where such an application is relevant (for example see the comments in V & V [2002] FMCAfam 408 at paragraph [42]).

Assumption of obligation

The nature of the relationship between the step-parent and step-child, both emotionally and financially, is central to the obligation. This factor is specifically referred to in section 66m(3)(c).
That the law recognises the voluntary assumption of obligations to others who become dependant upon a payer is clear: see for example Axtellv Axtell (1982) FLC ¶91-208 and Soblusky and Soblusky (1976) FLC ¶90-124 with respect to subsequent spouses. However, in some cases the fact that a step-parent chooses to take on an obligation to a step-child may not be sufficient to justify an order (at least where it has the effect of reducing the support available to biological children). In some cases this even justifies the joinder of the carer of the biological children to the step-parent maintenance proceedings to allow the carer to contest the making of the step-parent maintenance order as it will affect the support for the biological children: see Mulvena v Mulvena; Butler; Edwards (1999) FLC ¶98-006.
In this case there is no doubt that the relationship between the applicant and child was that of father and daughter. The difficult feature of this case is that the relationship was not assumed by the applicant in full knowledge of the true nature of his biological relationship with the child. Although the knowledge that the child is not a biological child, but in fact a step-child, is not necessary for the statutory definition of step-parent.
Whether the step-parent obligation was taken on knowingly, or the payer assumed the obligation believing that he was fulfilling his obligation to a biological child must be carefully considered.
In Veldhuisen v Veldhuisen (Unrep., Supreme Court of NZ, 20 Dec 1977, D667/76, Chilwell J) noted at [1978] Butterworths Current Law 75, Chilwell J considered a step-parent provision that provided a test of whether the child was ‘a member of the family’. That case concerned a father tricked into believing that the child was his biological child. Chilwell J said:
It must be a question of fact whether a child is a member of the family. Interpretation hardly comes into it. Marc was ‘treated’, to use the English test, as a member of the family by both parties in every conceivable way up until the parties ceased to live together. To say that he was not a member because his father was tricked into treating him as a member is to substitute a legal fiction for fact. (page 9)
Chilwell J concluded that the mother’s conduct was irrelevant to the child’s status or the quantum he should receive.
Now the child support formula scheme in New Zealand extends to step-children if a declaration has been made by a court that the step-parent is a parent under the Act: Child Support Act 1991 (NZ), section 99. Section 99(4)(b) of that Act provides for the following factor to be considered when determining whether or not to make the declaration:
(b)Whether that person assumed or discharged any responsibility for maintenance of the child knowing that that person was not the natural parent of the child
However, the authors of Butterworths, Family Law in New Zealand, 11^th Ed (2003) refer to section 99(4)(b) and say (at page 253):
However, other facts, such as the degree of affection for the child and the length of time that was devoted to the care of the child, may outweigh the deceit.
If the parent-child relationship is fostered in circumstances where the parent was mistaken or deceived as to the true nature of their relationship with the child, it appears unjust to require that person to continue to assist in supporting the child. This presents a difficulty as it matters not to the child whether the step-parent was aware that they were not the biological parent. To the step-parent it is, however, a crucial factor: it would be unjust to treat him or her as having assumed an obligation when he or she did not understand that they were ‘assuming’ such an obligation, rather than discharging an indisputable obligation.
It must be borne in mind that it is not unknown for a person to choose to continue support for a child that is not their biological child, even if they were initially deceived: in some cases even marriages survive shocking revelations about biological paternity. Indeed, before the advent of DNA testing paternity issues such as arose in this case simply didn’t arise due to the difficulty of proof and the presumptions of paternity with respect to children conceived during a marriage.
The state of knowledge of the step-father must be a relevant factor to consider as an incident of the factors under sections 66m(3)(b), (d), or (e) of the Family Law Act although it is not specifically referred to in the section.
The conduct of the respondent, of itself, does not appear to be a separate basis justifying any particular order. Its relevance lies in the impact of that conduct upon relevant factors such as the nature of the relationship. A similar distinction was made in Soblusky and Soblusky (1976) FLC ¶90-124 with respect to spousal maintenance (at 75,586 et seq).
The only appropriate way to balance these competing considerations is to treat the lack of knowledge or deception as a significant factor with respect to the relationship, but one that can be outweighed by other factors such as the extent of the relationship (both in quality and time) with the child.

Child support refunds in other circumstances

A factor that may have influenced the interpretation of sec 143(3) in the past (although not referred to in the cases) was the effect of the views of the Registrar of the Child Support Agency on refunds in cases where there are ongoing assessments with respect to other children. In those cases the Registrar managed the repayment by deducting it from the ongoing payments in respect of the other children. This had the effect of creating 2 classes of case: those where there was no ongoing assessment and those where there were other children. Because the refund was deducted from the child support payable for the other children, in the second category of cases it effectively shifted the cost onto other children without any consideration of justice or equity. It is now clear that this anomalous (and often unjust) result was contrary to the legislation (Mercer v The Child Support Registrar [2004] FCA 465) and presumably will not continue.

Section 143 and the law of torts

There are two aspects of the law of torts that are worthy of mention when determining the breadth and nature of the relevant factors to be considered under section 143: claims for deceit and damages in so called ‘wrongful births’ cases.

Claims for damages for deceit

Whether section 143 is a code, as stated in G and N (2003) FLC ¶93-160 (and stated in terms that are perhaps a little more limited in O'Hara and McGuinness (1991) FLC ¶92-220), may ultimately be significant in light of the apparent right of a father to sue for deceit, however a judgement is not required on that point.
In the English decision of P v B [2001] 1 Fam LR (Eng) 1041 Stanley Burnton J concluded that the common law tort of deceit did apply in a domestic context with respect to paternity, saying that ‘the law should encourage honesty between cohabiting couples’ (at paragraph [26]). His Honour went on to note that:
… it would not be appropriate for the court to order a party to repay as damages for tort what another division of the court has ordered by way of financial provision. However, the answer to [this] point is … procedural. A husband who disputes his liability to maintain a child on the basis that he was deliberately misled by his wife into accepting responsibility for him or her must do so in the matrimonial proceedings. (at paragraph [33])
The potential liability in tort (on the part of the payee) is therefore (per Stanley Burton J) not to be allowed to run contrary to orders made in family law proceedings. If potential step-parent maintenance orders are sufficient to overtake tortious liability they must surely be a relevant factor under section 143.

Damages in ‘wrongful birth’ cases

Assessment of damages in the so called ‘wrongful birth’ cases in the law of torts is also significant when considering the interaction of the personal relationship and the financial costs of children.
The House of Lords in McFarlane v Tayside Health Board [2000] 2 AC 59 at 114, concluded that a child is a blessing as well as a burden, and that it ‘is morally offensive to regard a normal, healthy baby as more trouble and expense than it is worth’.
This has been rejected in Australia by the High Court in Cattanach v Melchior [2003] HCA 38; (2003) 77 ALJR 1312. McHugh and Gummow JJ, in a joint judgement, said:
[91] … The benefits received from the birth of a child are not legally relevant to the head of damage that compensates for the cost of maintaining the child. A different case would be presented if the mother claimed damages for "loss of enjoyment of life" as the result of raising the child. If such a head of damage were allowable, it would be correct to set off against the claim all the benefits derived from having the child. But the head of damages that is relevant in the present case is the financial damage that the parents will suffer as the result of their legal responsibility to raise the child. The benefits to be enjoyed as a result of having the child are not related to that head of damage. The coal miner, forced to retire because of injury, does not get less damages for loss of earning capacity because he is now free to sit in the sun each day reading his favourite newspaper. Likewise, the award of damages to the parents for their future financial expenditure is not to be reduced by the enjoyment that they will or may obtain from the birth of the child.
In the same case Kirby J dealt with the notion of offsetting the joys of parenthood as follows:
[175] It might be appropriate to deduct from the costs of child-rearing any proved economic benefits received, or likely to be received, by the parents as a result of the birth of the child. However, the emotional and other benefits and burdens resulting from such a birth cannot be assessed comprehensively at the beginning of life...
…
[177] … If the suggested reason for denying recovery is the natural joy derived by the parents from the smile of their child, I would answer, as Peter Pain J did in Thake [[1986] QB 644 at 666; cf Graycar and Morgan, "'Unnatural Rejection of Womanhood and Motherhood': Pregnancy, Damages and the Law", (1996) 18 Sydney Law Review 323 at 337]: "[E]very baby has a belly to be filled and a body to be clothed."
Similarly, Callinan J said:
[298] … The reciprocal joy and affection of parenthood can have no financial equivalence to the costs of rearing [the child]. One is no substitute for the other. There is no reason to suppose in any event that the reciprocal bonds of obligation and affection will be any the less if the parents are compensated for the cost of bringing up the child
The simplistic notion that the joys of parenting (or in the context of this case, contact with the child) should somehow be set-off against the costs of raising of supporting a child cannot be accepted as some form of abstract truth. The notion was always contrary to family law principles and has now clearly been rejected in the law of torts.
Whilst a relationship with a dependant child may well be such as to lead to an obligation of support, the support must be seen as an incident of the relationship, and not a payment in exchange for the relationship or some form of set-off against the benefits of having a personal relationship.

Factors relevant to an application for and adjustment of rights under section 143(3).

There is clearly a prima facie entitlement on the part of the applicant to a refund of the child support paid as provided for in section 143(1). This is subject to orders that the court may make adjusting the rights of the parties and the child under section 143(3) and the court’s power to make such orders as are ‘just and equitable’ to give effect to the rights of the parties and child.
Whilst it is clearly inappropriate to attempt to limit or prescribe the factors that may be relevant to the exercise of the discretion to adjust rights in a just and equitable manner under section 143(3), it appears that the following factors will generally be relevant when considering an adjustment reducing or removing the payers rights to repayment:
a)The state of knowledge and conduct of the parties. It will be necessary to determine the state of knowledge of the payer at all relevant times, which may include: the time of birth, during the relationship, at separation, and thereafter. In general:
i)The absence of knowledge of circumstances that would lead a reasonable person to have doubts or concerns (on the part of the payer) that he was not the father of the child would generally be a significant factor in favour of an order for repayment.
ii)Any acquiescence or delay on the part of the payer, once aware of relevant information (which may be as little as circumstances giving rise to reasonable doubts as to paternity), would generally be a significant factor against an order for repayment.
b)The relationship of the payer with the child. Of particular relevance must be the extent to which the payer has taken on the role of a parent and provider for the child. However, it must necessarily be weakened in cases where the relationship has broken down, been minimised (or even thwarted by the child’s carer), or where there is a biological parent available to take on that role, or where the obligation was not assumed in full knowledge of the nature of the relationship with the child. That is not to say that a prospective step-parent relationship will dictate that monies paid in erroneous circumstances will not be recoverable. The scheme of the step-parent provisions of the Family Law Act is to value relationships and continuity of support for children, even if the traditional biological connection is absent: this underlying principle must be appropriately reflected in the exercise of the discretion under section 143. If there are circumstances that would establish an ongoing step-parent maintenance order this would militate strongly against an order for repayment.
c)Evidence as to the circumstances of the biological father. The biological father’s relationship with the child and capacity to provide support will always be relevant: however, its absence will not, of itself, be determinative: for example see Hill v Hill supra.
d)The financial circumstances of the parties. This will be particularly important when the repayment will place a burden upon the mother that will cause a significant detriment to the standard of living of the child. However, the mother’s penury, in isolation, cannot be allowed to be seen as a complete defence under the section, lest quite aberrant behaviour (usually with horrible emotional results for the child and the payer) is without consequences. In many cases it will also be relevant that the mother has received an adjustment in her favour pursuant to section 75(2) in the property settlement on the basis that the child is a biological child of the payer. Consideration of the parties’ finances must also include the extent of the parties’ obligations to support others. If support of others is not considered the anomalies created by the CSA before Mercer’s case could be unwittingly repeated (see paragraph 48 above).

Conclusions

The applicant has, on first becoming aware of any information relating to paternity, taken appropriate steps to determine that issue, and done so in a timely manner.
The conduct of the mother is most unfortunate. She must have been aware throughout that there was the possibility that the applicant was not the father. Her failure to disclose this information, at least at the time that she sought child support, has led to the circumstances with which the Court is now confronted.
I find that the mother’s conduct in this matter falls short of the reasonable conduct expected of a person in her position. At the very least, at the time that she sought the child support assessment, she ought to have provided the applicant with some indication that there was a possibility that he was not the father of the child so as to allow him to make inquiries if he wished to do so.
In the circumstances I find that the conduct of the parties is a strong factor in favour of a repayment order being made.
The applicant agreed in cross examination that he had hoped that the child was his, that he had loved the child, and continues to love the child. This is borne out by the conduct of the applicant since separation. He has applied to the court and participated in proceedings to implement a contact regime. He did attempt to maintain some form of contact after the paternity testing although it appears clear from his evidence that the contact arrangements between the parties have broken down. On the case for the applicant that breakdown in contact arrangements is due to the conduct of the mother in cancelling and otherwise frustrating contact. The mother’s case is that she was happy for the applicant to continue to have a relationship with the child, that the child wishes to see him, and that she was willing to let him see the child and have contact with the child. I see no purpose in making a series of specific findings as to why contact between the applicant and the child broke down: it appears clear on the evidence that it broke down as a result of the difficulties between the adults. I accept the applicant’s evidence that he is not prepared to resume contact with the child as he does not want to have a relationship with the child where he would potentially be forced to “walk in and walk out” of the child’s life. I accept that the parties are unlikely to be able to maintain an amicable contact regime, and that the applicant’s position with respect to his future relationship with the child is reasonable in the circumstances.
The mother gave evidence that she has not advised the biological father of the conception or birth of the child. She has not obtained any counselling with respect to her dealing with the difficult situation that she now confronts. She has taken the child to a paediatrician as a result of some of the child’s behaviours in recent times. As a result not only has the current situation developed, but the child continues to be denied financial support from her biological father. The child is also being denied a relationship with her biological father.
The applicant is earning around $40,000.00 per annum. He is not in a strong financial position, living in rented accommodation with some debts that he is meeting.
The mother is in a weaker financial position, as she has a child to maintain. However, she lives with her parents who assist with caring for the child whilst she returns to work at the Casino in the evenings. She is now earning a similar income to that of the applicant. She has taken no steps to seek financial contribution to the child’s expenses from the biological father of the child.
The mother also received a greater share of the matrimonial property settlement (around double that received by the applicant). I do not accept the mother’s evidence at the trial with respect to having large credit card debts at the time of the property settlement. No documents were produced to support the level of indebtedness that she claimed and this is inconsistent with the financial statement that she relied upon in the property proceedings, at a time when it would have been in her interests to disclose fully and frankly all of her debts. I accept that her credit card debts were as set out in her financial statement at the time of the property settlement, and not the much greater debt level that she suggested from the witness box.
The reasoning method by which the applicant identified the amount sought ($5,000) was not relied upon in any argument for recompense. Rather, the explanation showed that sum was not a purely arbitrary figure.
Repayment of all of the debt would be a significant imposition on the mother. However, the applicant only seeks around one quarter of that sum. Should a greater proportion of the sum have been sought I would have been inclined to so order. In this regard the mother is the beneficiary of the applicant’s sense of fairness and generosity.
I find that it is just and equitable to order that the mother pay to the father the sum of $5,000.

Costs

With respect to the question of costs I have regard to section 117 of the Family Law Act 1975 and the principles and factors set out therein. The parties financial circumstances are discussed above and the mother’s obligations to support the child. The mother did comply with requests for paternity testing at the first opportunity. The applicant was not legally aided. The whole of this litigation has been brought about by the mother’s conduct, and she has effectively been wholly unsuccessful in the litigation. I find that it is appropriate that she pay the applicant’s costs of the proceedings.

Orders

At the conclusion of the hearing I made the orders with respect to repayment and costs. The parties subsequently agreed upon the quantum of costs and the time for repayment of the monies, in the terms set out in the orders.

I certify that the preceding eighty (80) paragraphs are a true copy of the Reasons for Judgment of Riethmuller FM

Associate:

Date: