Forsythe and Latimer and Anor

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FORSYTHE & LATIMER & ANOR [2010] FMCAfam 478

CHILD SUPPORT – Recovery of overpayments – adjustment of parties’ rights under Child Support (Assessment) Act 1989 (Cth) s.143 – relevant considerations – where payer unaware that he was not the father of the child at the time of payment of child support – where payee in strained financial circumstances – whether an order for repayment of child support just and equitable – time to pay allowed.

Child Support (Assessment) Act 1989 (Cth), ss.29, 107, 143, 151
Child Support (Registration and Collection) Act 1988 (Cth) ss.79A, 111C
Child Support Legislation Amendment) Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth)

G & N (2003) FLC 93-160; [2002] FMCAfam 281
DRP & AJL [2004] FMCAfam 440
B & M [2002] FMCAfam 113
Y & Y [2001] FMCAfam 258
W & H [2004] FMCAfam 28

Applicant: MR FORSYTHE

First Respondent: MS LATIMER

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: SYC 5507 of 2009

Judgment of: Scarlett FM

Hearing dates: 11 February, 3 March, 7 April 2010

Date of Last Submission: 12 March 2010

Delivered at: Sydney

Delivered on: 8 June 2010

REPRESENTATION

Counsel for the Applicant: Ms Petrie

Solicitors for the Applicant: Taylor & Scott

Solicitor for the Respondent: Ms Cole

Solicitors for the Respondent: Legal Aid NSW

ORDERS

1. The Respondent is to pay to the Applicant the sum of $9,743.30 by way of recovery of child support payments under s.143 of the Child Support (Assessment) Act 1989.

2. The amount in Order (1) above is to be paid as follows:

   (a)As to the sum of $3,600.81 within six (6) months of the date of this Order; and

   (b)The amount of $6,142.49 within eighteen (18) months of the date of this Order.     

IT IS NOTED that publication of this judgment under the pseudonym Forsythe & Latimer & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 5507 of 2009

MR FORSYTHE

Applicant

And

MS LATIMER

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Application

1. The Applicant seeks orders under s.143 of the Child Support(Assessment) Act 1989  that the Respondent repay to him the sum of $39,090.57, being payments of child support which he made in the belief that the Respondent’s child was his son. He also seeks from the Child Support Agency repayment of an amount of $758.84, being child support collected but not paid to the Respondent. That latter amount was still being held by the Child Support Agency, but information has since been received that this amount has now been refunded to the Applicant.

2. The Respondent did not oppose the proposed order that the Child Support Agency repay the sum of $758.84. She does, however, oppose the order sought by the Applicant against her.

Background  

1. The parties commenced a relationship in about November 1997 which continued until June 1998. They did not live together but the relationship…