Forsythe and Latimer and Anor
[2010] FMCAfam 478
•8 June 2010
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
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.
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
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.
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
The parties commenced a relationship in about November 1997 which continued until June 1998. They did not live together but the relationship included sexual intercourse.
On an occasion in December 1997 the Respondent met a man whilst at a pub and had intercourse with him. She had no further contact with the man and does not recall his name. However, it appears that the Respondent became pregnant as a result of that encounter.
The Child was born [in] 1998. The Applicant’s name, however, was not recorded on his birth certificate until 11th January 2000.
In November 2000 the Applicant commenced making private payments of child support directly to the Respondent. In October 2002 he commenced paying child support through the Child Support Agency.
On 23rd March 2008 the Applicant asked the Respondent to undergo a DNA test to ascertain whether he was the Child’s father. The test did not take place until April 2009, but on 24th April 2009 the testing agency provided a report that indicated that the Applicant was not the biological father of the Child.
As a result of the DNA test, the Applicant commenced proceedings in this Court by filing an application for a declaration under s.107 of the Child Support (Assessment) Act and a repayment order under s.143 of the Act.
On 20th October 2009 Jarrett FM made a declaration under s.107 of the Child Support (Assessment) Act that the Respondent was not entitled to an administrative assessment of child support from the Applicant for the Child.
Evidence
The Applicant claimed that he had been in a relationship with the Respondent for approximately 6 to 8 months. The relationship was over before the Child was born. He deposed in his affidavit sworn
6th August 2009 that the Respondent told him that she was pregnant and, as the relationship had been on foot at the time of conception, he accepted what she told him.
It was the Applicant’s evidence that after the Child was born he conducted his relationship with the Child and his mother as if he was the boy’s father, and the Child spent time with him on weekends and during school holidays. He initially provided payments of child support directly to the Respondent privately but the Respondent later sought an administrative assessment from the Child Support Agency.
The Applicant deposed that he began to be suspicious that he was not the father of the child once the Child grew and matured:
…his physical appearance has made me begin to think he was not my son as there are none of my distinctive features present in him. I am [physical descriptors omitted], none of which apply to him.[1]
[1] Applicant’s affidavit dated 6 August 2009 at paragraph [7]
At Easter 2008 the Applicant asked the Respondent to agree to a parentage test, a request that was not well received. Eventually, after the Applicant approached the Child Support Agency and obtained advice that it would be necessary to apply to the Court for an order if the Respondent did not agree, the Respondent consented to undergo the testing procedure. The report from the [testing centre], a copy of which was annexed to the Applicant’s affidavit, excluded the Applicant from identification as the Child’s biological father.
The Applicant filed an affidavit in Court on 23rd December 2009, annexing a document from the Child Support Agency entitled “Child Support Payer Transaction Statement for the period 01/01/2000 to 17/08/2009”. That document showed a credit balance of $9,623.15 as at 17th August 2009.
In a later affidavit, filed in Court on the first day of the hearing, the Applicant annexed a “Child Support Payer Transaction Statement for the period 01/01/2009 to 10/02/2010” and a copy of a letter dated
11th August 2009. The letter told the Applicant that his child support assessment had changed for the period 1st March 2003 to 31st August 2005 and said:
You have paid [Ms Latimer] $7,642.82 too much child support. If you want [Ms Latimer] to keep the money we will need your permission.[2]
[2] Applicant’s affidavit dated 11 February 2010 Annexure “B”
The Applicant deposed that he contacted the Child Support Agency and asked for the money to be refunded to him. He subsequently received a refund of $4,042.01, not $7,642.82. He telephoned the Child Support Agency to inquire about the other $3,600.81 only to be told:
“Unfortunately it was already given to [Ms Latimer].”[3]
[3] Applicant’s affidavit dated 11 February 2010 at paragraph [4]
Annexure “A”, the Child Support Payer Transaction Statement, shows a refund of $4,042.01 having been issued to the Applicant on
2nd November 2009 and two further salary deductions, both on
4th November 2009, of $189.71 and $569.13. The Applicant’s balance as at 10th February 2010 as “$39,849.41CR”. The balance summary on the first page of the document shows:
Maintenance Debt $39,090.57CR
Excess Cash $758.84CR[4]
[4] Applicant’s affidavit 11.2.2010 annexure “A”
The amount of $758.84 is made up of the two amounts of $189.71 and $569.13 deducted from the Applicant’s salary on 4th November 2009.
The Applicant gave oral evidence at the hearing and was cross-examined by Ms Cole, who appeared for the Respondent.
It is the Respondent’s evidence that the circumstances of her child’s conception were that she had gone to a pub with some friends in about December 1997. She deposed that she had been drinking heavily and ended up having sex with a man she had met during the evening. She claimed in her affidavit affirmed on 25th January 2010 that:
Until recently I had forgotten about this event, and it did not occur to me that I might have become pregnant on this occasion. I have had no contact with that man since the night we slept together, and I do not recall his name. As I had only met him on that one occasion, and he was not from my circle of friends, I do not know anyone who would be able to assist me to identify him or locate him.[5]
[5] Respondent’s affidavit dated 25 January 2010 at paragraph [3]
The Respondent deposed that she found out she was pregnant in January 1998 and assumed that the Applicant was the father. They separated in about June 1998, when she was about 6 months pregnant. The Child was born in September.
It was the Respondent’s evidence that she did not initially apply for child support, but was required to do so by Centrelink, in order to be eligible for family payments. She agreed with the Applicant that he could pay her child support privately, but claimed that she applied to the Child Support Agency for an assessment in October 2002, after the Applicant had stopped making child support payments.
The Respondent deposed that the Applicant told her in about April 2008 that he wanted to have a DNA test to see if he was the Child’s father. She claimed that she agreed, and assumed that he would arrange it. She stated that she and the Child gave samples for DNA parentage testing in January 2009. They received the DNA test results at the beginning of May 2009.
After a conversation with the Applicant about stopping the child support payments, the Respondent rang the Child Support Agency to stop further payments being made. The Applicant had already telephoned the Child Support Agency about this issue. The Respondent claimed that when she spoke to an officer from the Child Support Agency, she was told:
“We can’t stop child support because the DNA test wasn’t Court ordered.”[6]
[6] Respondent’s affidavit 25.1.2010 at paragraph [18]
Again, the Respondent deposed that she spoke to an officer at Centrelink who told her:
“You can’t end your child support case if it’s not Court ordered”.[7]
[7] ibid
The Respondent’s financial circumstances are that she is a single mother with two children and receives a pension from Centrelink and Family Tax benefit. She returned to work on a part time basis in January 2010 and works 15 hours a week. She purchased a home unit for $180,000.00 in December 2007 subject to a mortgage, which currently stands at approximately $175,000.00. She owns a Holden car for which she paid $25,000.00. She claims to owe $22,000.00 on her car loan.
The Respondent claims that her weekly expenses are greater than her weekly income and she is behind on her mortgage payments, strata levies and council rates. She receives financial assistance from her mother from time to time.
The Respondent does not receive child support payments for either child. She does not know the identity of the man who is her elder child’s biological father. She does not receive child support for her younger child, aged 8 months, and believes that the Child’s father is in gaol.
The Respondent gave oral evidence and was cross-examined by
Ms Petrie of counsel, who appeared for the Applicant.
Submissions on behalf of the Applicant
Counsel for the Applicant submitted that the Court has an unfettered discretion under s.143(3) of the Child Support (Assessment) Act to order repayment of the amount of child support paid by the Applicant to the Respondent, that amount being $39,090.57; it is in the Court’s discretion as to whether the Respondent should be ordered to repay all or a part of the sum of $39,090.57 to the Applicant (see G & N[8] per Bryant CFM[9] at [25]).
[8] (2003) FLC 93-160; [2002] FMCAfam 281
[9] As her Honour then was
Further, s.143(3B) of the Act provides a non-exhaustive list of factors that the Court must take into account when considering whether to make an order, or, in determining the amount to be recovered and whether it is to be in a lump sum or a periodic amount. These factors were considered in some detail by Riethmuller FM in DRP & AJL[10] at [65] – [66].
[10] [2004] FMCAfam 440
It was submitted that the Respondent did not give the Applicant any indication that he was not the Child’s biological father. It was not until after the death of his mother in December 2007 that his sister voiced to him her suspicions that he was not the Child’s father. Accordingly, counsel for the Applicant submitted that the present case should be distinguished from the situation in B & M[11] where Bryant CFM[12] found that the husband in that case was aware in respect of both the subject children that the possibility of doubt existed, and he was not misled into believing that it was the case (that there was no doubt about paternity). Here, it is submitted that the Mother was aware at the time of conception that she had had a sexual relationship with another man and knew or suspected, or ought reasonably have known or suspected, that the Applicant was not the Child’s biological father. As the Respondent had no contact with the other man since then, it is submitted that she took advantage of the Applicant, knowing that he had the means to support the child and, at best, acted with gross indifference by choosing to ignore the possibility that she could have become pregnant by either the Applicant or the other man.
[11] [2003] FMCAfam 113
[12] Again, as she then was
Counsel for the Applicant submits that the situation in this case is analogous to that referred to by Riethmuller FM in DRP & AJL[13], where his Honour said at [17]:
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.
[13] Supra
I would comment at this stage that the parties were not in a matrimonial relationship, nor were they cohabiting at the time, or at any time.
Ms Petrie submits that the Mother’s “evasive” actions towards the Applicant during the pregnancy, including her reluctance for him to be involved and her failure to record him as the Father on the Child’s birth certificate imply that she knew or suspected that he was not the Child’s biological father. She further submitted that the present proceedings are analogous to the facts in Y & Y[14] ( a decision of Donald FM) and referred to a decision of mine where I ordered the repayment of the full amount of child support paid (W & H[15] at [10]).
[14] [2001] FMCAfam 258
[15] [2004] FMCAfam 28
It is submitted on behalf of the Applicant that:
a)On his becoming aware that he was not the Child’s biological father, the Applicant took the necessary steps to determine the issue in a timely manner;
b)The Applicant did not have the knowledge that would have led a reasonable person to have doubts or concerns that he was not the Child’s biological father;
c)The Mother’s conduct in failing to disclose to the Applicant that he was not the Child’s father has led to these proceedings, and this conduct falls short of the reasonable conduct of a person in her situation;
d)The Mother’s conduct in consenting to the Applicant’s name being listed on the Child’s birth certificate as the Father directly resulted in the application for administrative assessment of child support being accepted;
e)The absence of the Child’s actual biological father and the Mother’s inability to contact him should not preclude an order for repayment of child support;
f)There are no circumstances that would establish an ongoing step-parent maintenance order;
g)The Mother’s conduct necessitates an order for repayment of child support and for reimbursement of the costs of the paternity test; and
h)The Respondent Mother should pay the Applicant’s costs.
Submissions on behalf of the Respondent
Ms Cole, who appeared for the Respondent Mother, submitted that it is within the Court’s discretion as to whether or not the Respondent Mother should be ordered to repay all or part of the sum of $30,090.57 (Child Support (Assessment) Act, s.143). The discretion is to be exercised by the Court having regard to what it considers to be “just and equitable”.
Her submission is that the Mother would have conceived with the Child in the very first weeks or months of the relationship and, in all of the circumstances, it would have been reasonable for the Applicant to have some doubts as to paternity from the very beginning. The Father claimed to have become suspicious because of the Child’s physical appearance, but it is submitted that those physical differences referred to by the Applicant, i.e. hair and skin colour, would have become apparent fairly early in the Child’s life. The Applicant has had regular contact with the Child since he was a baby, so the physical differences should have been apparent to the Applicant much earlier than 2008.
The submission is that the Applicant had, or should have had, suspicions about paternity much earlier than 2008 and, therefore, it was open to him to take steps at a much earlier time to resolve the issue of paternity.
Again, Ms Cole submitted that the circumstances of the intercourse that led to the Child’s conception were that the Mother was then only
19 years of age, she had been drinking heavily at the time and had thereafter forgotten about the incident. The situation should be distinguished on the facts from that in DRP & AJL, where the mother was a party to a marriage and had had an extra-marital affair that she had concealed from her husband.
It was submitted that the evidence does not support the suggestion that the Mother was opportunistic or took advantage of the Applicant, because she did not immediately apply for child support and, when it was paid, for the first 18 months it was only paid at the minimum rate.
The Mother points out that she was not in contact with the Applicant at the time the child was born and she could not have placed his name on the birth certificate without his consent. It was the Applicant who took active steps to have his name placed on the Child’s birth certificate.
Further, Ms Cole submitted that, as a Centrelink beneficiary, the Mother was required to take “reasonable maintenance action” to qualify for Family Tax Benefit to be paid at more than the minimum rate, which meant that she was required to apply to the Child Support Agency for an assessment of child support against the father of the Child, or, at least, the man she thought was the father of the Child.
Subsection 29(2)(b) of the Child Support (Assessment) 1989 provides that the Registrar is to be satisfied that a person is a parent of the child if that person is named on the Child’s birth certificate. The Mother deposed that she provided the amended birth certificate to Centrelink and was then required to apply to the Child Support Agency for an assessment against the Applicant, which she did. It is conceded that the Respondent did engage in conduct that resulted in the application for assessment being accepted by the Registrar (s.143(3B)(b)).
Ms Cole submitted that the Applicant had delayed in seeking a paternity test which had contributed to the overpayment that he seeks to recover, and he also delayed after receiving the result of the test, by not bringing his application before the Court until 14th September 2009. This is relevant, because, as Riethmuller FM held in DRP & AJL:
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.[16]
[16] [2004] FMCA 440 at [66]
It was further submitted that the Applicant’s claim that the Mother refused to “end” the child support assessment after the DNA test results became available, thereby obliging him to commence Court proceedings, cannot be sustained, because of the Mother’s evidence that she attempted to end the child support assessment but the Child Support Agency would not do so on the basis of the DNA test results alone. The Mother was prevented from doing so because of the effect of s.151(4) of the Child Support (Assessment) Act 1989, which states that if a payee is entitled to Family Tax Benefit, the election to end the child support assessment has no effect unless it is approved by Centrelink. The Mother consented to the orders under s.107 of the Act on the first occasion in Court. Ms Cole submitted that the Applicant could have applied for suspension of payments of child support under s.79A of the Child Support (Registration and Collection) Act 1988 or a stay under s.111C of the Act, but did not do so.
It was further submitted that there was no prospect that the Mother could obtain child support from the Child’s actual father, as the Mother does not know his name and has had no contact with him since the night when she had intercourse with him. Thus, the Child will be entirely reliant on the Mother for his future financial support, which is a significant factor to be considered.
Ms Cole submitted that the Court must look at the relationship between the Applicant and the Child as a factor in deciding whether an order for repayment should be made (B & M[17] at [48]; DRP & AJL[18] at [66]). In this case the parties both deposed to the Applicant having a close relationship with the Child from a very early age. The Mother denies that she stopped the Child seeing the Father when the issue of DNA testing was raised, but there is evidence that the relationship is currently strained.
[17] [2003] FMCAfam 113
[18] [2004] FMCAfam 440
It was submitted further that the Mother is in extremely difficult financial circumstances and would therefore find it onerous to repay any amount of child support to the Applicant. She is the sole carer for two children, having had another child in mid-2009. She works on a casual basis about 15 hours per week and has a high level of debt.
The Mother does not receive child support from the father of her second child.
The Father, it is submitted, is in a significantly better position, being in full-time employment and no longer having to pay child support. He also received a refund of child support from the Child Support Agency.
Ms Cole submitted that the decisions of DJM & AJL, Y & Y and W & H were not of assistance, as they all could be distinguished and, in any event, were all decided before s.143(3B) was inserted into the Act. It appears to have become operative on 1st January 2007.
Ultimately, it was submitted on behalf of the Mother that the Court must consider whether any orders would be just and equitable as regards, the Applicant, the Mother and the Child. The hardship caused to the Mother would outweigh any potential injustice to the Applicant.
Conclusions
The Child Support (Assessment) Act makes it clear that the Court has a discretion whether or not to order that the Mother should be ordered to repay all or part of the sum of $39,090.57 paid under the child support assessment made in this matter. The discretion is described in s.143(3):
In proceedings in a court under this section, the court may make such orders in relation to the payee as it considers just and equitable for the purposes of adjusting, or giving effect to, the rights of the parties and of the child concerned.
Subsection 143(3A) was inserted by the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006. It states:
If:
(a)a person (the payer) has paid an amount of child support to another person (the payee); and
(b)the Court has made a declaration under section 107 that the payer should not be assessed in respect of the costs of the child because the payer is not a parent of the child; and
(c) the Court:
(i) is considering whether to make an order under this section; or
(ii) if such an order is to be made, is determining the amount that is to be recovered and whether payment is to be made in the form of a lump sum payment or periodic amount;
then the court must have regard to the matters set out in subsection (3B). This subsection does not limit subsection (3).
Subsection 143(3B) sets out the six factors to which the Court must have regard. Whilst the Court may have an unfettered discretion, it is still bound to consider all of these factors.
(a) Whether the payee or the payer knew or suspected, or should reasonably have suspected, that the payer was not a parent of the child.
The evidence shows that the Child was born from an isolated act of intercourse between the Mother and the unknown man whom she met at a hotel when she had been drinking heavily. At about that time the Mother went on to form a relationship with the Applicant that apparently included regular sexual relations. That relationship came to an end before the Child was born.
It is not unreasonable, in my view, for both parties to have formed the view that the Applicant was the Father of the child. The Mother could be excused for thinking that the man with whom she had had sexual relations on a number of occasions would have been the Child’s father, rather than the man with whom she had a one-off encounter when intoxicated. Whilst it is hard to believe that the Mother completely forgot about the incident, I am not satisfied that her actions during the pregnancy indicate that she knew or suspected at that stage that the Applicant was not the Child’s biological father, nor that the Mother can be described as having taken advantage of the Applicant. She could not have registered the Applicant as the father of the Child on the Child’s birth certificate without his consent.
It must have dawned on the parties as the Child got older that he did not look at all like the Father, but that is not particularly strong evidence. It is not uncommon for a child to take after one parent rather than another. However, the Applicant deposed that it was after the death of his mother in December 2007 that his sister told him that his mother had suspected that he was not the Child’s biological father.
(b) Whether the payee or the payer engaged in any conduct (by act or omission) that directly or indirectly resulted in the application for administrative assessment of child support for the child being accepted by the Registrar.
Both parties engaged in conduct that resulted in the application for administrative assessment of child support being accepted by the Registrar.
The Applicant consented to be listed as the father on the Child’s birth certificate. The Mother also consented to this being done.
The Mother, a Centrelink beneficiary, sought Family Tax Benefit. As a result, she was required to apply for an assessment of child support against the Child’s father, or rather the person whom she thought to be the Child’s father. I note, as Ms Cole has pointed out, that s.29(2)(b) of the Child Support (Assessment) Act requires the Registrar to be satisfied that a person is a parent of a child if the person’s name appears on the Child’s birth certificate:
(2)The Registrar is to be satisfied that a person is a parent of a child only if the Registrar is satisfied:
(b)that the person’s name is entered in a register of births or parentage information, kept under a law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction as a parent of the child…
(c) Whether there was any delay by the payer in applying under section 107 for a declaration once he knew, or should reasonably have known, that he was not a parent of the child.
The Applicant became suspicious that he was not the father of the child and approached the Mother to have DNA tests done about Easter or April 2008. However, it was not until August of that year that the Father paid for the DNA testing to be performed. The Mother lost the paperwork whilst she was moving house, and she and the Child did not give their samples until January 2009.
A further delay occurred due to an error in the testing laboratory, and it was not until late April or early May 2009 that the test results became available.
The Applicant filed his application for a declaration under s.107 of the Act on 14th September 2009. He claims that the time spent between the knowledge of the test results and the date of application was occupied in exhausting non-litigious means of resolving the matter, including attempting to negotiate directly with the Mother. He claims that the Mother’s delay in complying with his request for paternity testing caused him to be liable for the payment of further child support in the sum of $13,845.38 that would not otherwise have been incurred.
I am not satisfied that this claim has been made out. The Applicant did not act swiftly in either arranging the DNA tests or commencing proceedings for a declaration. I find that the Applicant delayed in applying under s.107 for a declaration.
(d) Whether there is any other child support that is, or may become, payable to the payee for the child by the person who is a parent of the child.
Realistically, there is no prospect that the Mother may be able to obtain an administrative assessment of child support against the Child’s natural father. Her encounter was brief and she no longer remembers his name. She has no knowledge of his whereabouts.
I find that there is no realistic prospect of any other child support being available for the Child.
(e) The relationship between the payer and the child.
The evidence is that the Applicant had a relationship with the Child in the belief that he was the Child’s father. The last occasion that the Applicant spent time with the Child was over the Christmas/January school holidays. Since then, however, the relationship has become strained as a result of the outcome of the paternity testing.
(f) The financial circumstances of the payer and the payee
The Applicant appears to be in a somewhat better financial position than the Respondent. He earns approximately $80,000.00 per year, and he is supporting his partner and their young child. He and his partner. Her teenage son also lives with them. They live in rented accommodation. He disclosed in his financial statement filed on
14th September 2009 that he owns a 2000 model Mitsubishi Magna motor car which he values at $5,000.00 and his partner owns a 1984 model Toyota Hilux valued at $1,000.00.
The Applicant deposed in his affidavit affirmed on 11th February 2010 that on 2nd November 2009 the Child Support Agency paid to him a refund of $4,042.01,[19] out of an amount of $7,642.82 which the Agency notified him that had been overpaid.[20] The balance, amounting to $3,600.81, was paid to the Respondent by the Child Support Agency.[21]
[19] Applicant’s affidavit 1.2.2010 paragraph [4]
[20] Letter dated 11 August 2009 from the Child Support Agency to the applicant, Annexure “B” to the applicant’s affidavit of 11.2.2010.
[21] Applicant’s affidavit 1.2.2010 paragraph [4]
A further sum of $758.84 held by the Child Support Agency has, on information provided to the Court by the Mother’s solicitor[22], was repaid to the Applicant on 15th February 2010.
[22] On 6th April 2010
By comparison, the Mother is in a less advantageous financial situation. She discloses a weekly income of $762.00[23] and relies on Centrelink benefits. She supports the child in question and her young baby. She does not receive child support payments for either child. She purchased a two-bedroom home unit in 2007 on which she owed the amount of $180,887.13 as at 8th January 2010.[24] She owns a Holden motor car on which she owes about $22,000.00.[25]
[23] Respondent’s financial statement filed on 28th January 2010
[24] Respondent’s affidavit filed in court on 11.2.2010, Annexure “A”.
[25] Respondent’s affidavit affirmed 25.1.2010 at paragraph [21]
The Mother claims to be heavily in debt. Whilst she acknowledged receiving the sum of $7,875.00 from Centrelink in January 2010 as an adjustment for a past underpayment, she claimed to have used the majority of that amount to meet outstanding debts.[26]
[26] Ibid at paragraph [3]
The Mother also deposed that an amount of approximately $2,000.00 was “skimmed” (i.e. stolen) from her bank account on about
14th January 2010 as a result of some unauthorised transactions.[27]
[27] Respondent’s affidavit 11.2.2010 at [4]
I am satisfied that the Mother is in a less advantageous financial position than the Applicant, and that situation appears likely to remain for the immediate future.
Orders that are just and equitable in the circumstances
I am satisfied that the Mother has no capacity to repay to the Applicant the sum of $39,090.57, being the amount of child support claimed, even if the circumstances otherwise require such a payment.
In my view, neither party was aware at the time that the Applicant was not the father of the Child, and the parties acted as if he were the Child’s father. The Applicant only appears to have formed a suspicion in December 2007, and acted on that suspicion in about April 2008.
It was not until August 2008 that the Applicant paid for the DNA testing and it was not until 24th April 2009 that the Parentage Testing Procedure Report became available, showing that the Applicant was not the Child’s biological father.
Whilst proceedings were not commenced in this Court until
14th September 2009, when the application was filed, the Child Support Agency had already acknowledged in its letter of 11th August 2009 that the Applicant had paid the Mother too much by way of child support. It appears from the text of the letter that this decision was not as a result of the parentage testing report, but as a result of information about the Applicant’s income. The letter said, relevantly:
The Child Support Agency (CSA) normally calculates child support payments based on the most recent income information available. We recently obtained a more accurate income figure for you for 2003 and have re-calculated the child support for your child.
What this means for you
Your child support assessment has changed for the period 1 March 2003 to 31 August 2005. We have enclosed a summary of your assessment.
You have paid [Ms Latimer] $7,642.82 too much child support. If you want [Ms Latimer] to keep the money we will need your permission.[28]
[28] Applicant’s affidavit of 11.2.2010 Annexure “B”
The Applicant’s uncontradicted evidence is that he “immediately” telephoned the Child Support Agency to say that he wanted the money to be repaid to him. However, he only received a refund of $4,042.41, and that was not until 2nd November 2009, nearly three months later. On inquiring, he was told by an officer of the Child Support Agency that the balance, amounting to $3,600.81, had already been given to the Respondent.
Quite clearly, this was an error by the Child Support Agency, and one that had nothing to do with the results of the DNA test. The Agency was aware when it sent the letter to the Applicant on 11th August 2009 that it owed the Applicant the full amount of $7,642.82. It is a reasonable inference that the Agency would have sent a similar letter to the Respondent.
The sum of $3,600.81 should not have been sent to the Respondent. She was not entitled to it. That amount should be refunded to the Applicant.
The Child Support Transaction Statement forming Annexure “A” to the Applicant’s affidavit of 11th February 2010 shows that between
24th April 2009, the date of the DNA test result, and 4th November 2009 that a total amount of $6901.33 was deducted from the Applicant’s salary and paid towards child support. This appears to be a separate amount from the overpayment referred to in the Child Support Agency’s letter of 11th August 2009, because it referred to a change of assessment for the period 1 March 2003 to 31 August 2005.
The Respondent is not, in my view, entitled to the amount of $6,901.33. Information has been received that the sum of $758.84 was not paid to the Respondent and has since been refunded to the Applicant. However, that leaves an amount of $6,142.49 that was paid to her after the results of the DNA test had become known.
In my view, that sum should also be repaid by the Respondent to the Applicant. The parties were both of the belief for a number of years that the Applicant was the father of the Respondent’s child and acted accordingly. I am satisfied that the Respondent did not knowingly deceive the Applicant. However, the Respondent received a sum of $3,600.81 from the Child Support Agency which should not have been paid to her. She also received a sum amounting to $6142.49 by way of payments deducted from the Applicant’s salary after the parties became aware that he was not the Child’s biological father and was therefore not liable to make payments of child support.
I am satisfied that it is just and equitable to make orders that the Respondent repay to the Applicant the sum of $9743.30, made up as follows:
a)The sum of $3,600.81 wrongly paid to the Respondent by the Child Support Agency referred to in [83] above; and
b)The sum of $6,142.49 referred to in [86] above.
The Respondent’s financial circumstances are dire and the above amounts will be difficult for her to meet. I am satisfied that she has no funds immediately available to her. Clearly, she will need a considerable amount of time to pay.
I propose to allow six months for the Respondent to repay the sum of $3,600.81 and a further twelve months for her to repay the balance. I will consider the question of costs.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 26 May 2010