Macaulay and Jessop

[2018] FCCA 124

FEDERAL CIRCUIT COURT OF AUSTRALIA

MACAULAY & JESSOP [2018] FCCA 124

Catchwords:
CHILD SUPPORT – Application for the repayment of child support pursuant to section 143 of the Child Support (Assessment) Act 1989 – application successful.

Legislation:

Child Support (Assessment) Act 1989, ss.107, 143

Family Law Act 1975, s.69VA

Applicant: MR MACAULAY

Respondent: MS JESSOP

File Number: BRC 12327 of 2015

Judgment of: Judge Lapthorn

Hearing date: 26 April 2017

Date of Last Submission: 26 April 2017

Delivered at: Brisbane

Delivered on: 19 January 2018

REPRESENTATION

Solicitors for the Applicant: Self represented

Solicitors for the Respondent: Self represented

ORDERS

1. That, subject to order (2) herein, the Respondent pay the Applicant the sum of $6,693.91 pursuant to section 143(3) with respect to the child support paid to the Respondent by the Applicant in relation to the child X born (omitted) 2013.

2. That the sum set out in order (1) herein is to be paid by way of periodic payments of $65 each week to the Applicant as directed by him commencing 1 March 2018 and continuing until the whole of the sum ordered has been paid.

3. That a copy of these orders be forwarded to the Child Support Registrar for their reference in the event that the Applicant registers the maintenance liability that has arisen out of Order 1 herein for the purposes for collection.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 12327 of 2015

MR MACAULAY

Applicant

And

MS JESSOP

Respondent

REASONS FOR JUDGMENT

Introduction

1. I am asked to make orders pursuant to section 143 of the Child Support (Assessment) Act 1989 that the respondent re-pay to the applicant monies paid by him by way of child support for the child X. 

Background

1. The applicant, Mr Macaulay is 26 years of age having been born (omitted) 1991.  Ms Jessop is the respondent.  She was born (omitted) 1993 and is therefore aged 24.  The subject child X (known as X) was born (omitted) 2013.  Throughout this judgment I will refer to the parties as the applicant and the respondent and X as the child.  I mean no disrespect in doing so.

2. The parties commenced a relationship in (omitted) 2011 and separated for the period between February and June 2012.  The date of separation on a final basis differed between the parties.  The applicant alleged the date as 31 May 2014, which was the date they ceased living together in the same residence.  The respondent however alleged they separated the previous year; remained living under the same roof; and had other partners prior to them living in separate residences from 31 May 2014.

3. Both parties accept that their relationship was marred by family violence.

4. The applicant commenced parenting proceedings in this court by filing an Initiating Application on 21 December 2015 in which he sought orders for the child to live primarily with him and spend one night a fortnight with the mother. The respondent filed a Response to Initiating Application on 21 April 2016 seeking: a declaration as to parentage pursuant to s.69VA; that should the applicant not be the biological father of the child that his application be dismissed and that previous parenting orders be discharged; that should the applicant be the biological father of the child that his application be dismissed.

5. Orders were made for parentage testing on 22 April 2016.  The testing results indicated that the applicant was not the father of the child. 

6. When the matter came back before me on 10 October 2016 the applicant filed by leave an Amended Initiating Application, which no longer sought parenting orders, and I dismissed his parenting application. I also made a declaration pursuant to s.69VA of the Family Law Act 1975 that the applicant is not the biological father of the child and a declaration pursuant to s.107 of the Child Support (Assessment) Act 1989 that the respondent was not entitled to an administrative assessment of child support for the child payable by the applicant. 

7. Prior to that date the applicant had paid $7,265.77 in child support.  $571.86 has been returned to him.  The applicant pressed his application for the respondent to return to him the sum of $6,693.91.  The respondent’s evidence was that the amount paid was $6,518.35 inclusive of the $571.86.  The documentary evidence from the Child Support Agency corroborated the applicant’s figures and I therefore find that the appropriate amount for consideration is $6,693.91. 

Material relied on

1. In support of his case the applicant relied on:

   a)his Amended Initiating Application filed by leave on 10 October 2016;

   b)his affidavits:

   i)filed 10 March 2017 and

   ii)filed by leave 26 April 2017; and

   c)his financial statement filed 10 March 2017. 

2. The respondent relied on:

   a)her Response filed 21 April 2016;

   b)her affidavit filed 21 April 2016; and

   c)her financial statement filed by leave 26 April 2017.

3. A number of documents were tendered into evidence.[1]

   [1] A1 – Applicant’s blood group results

4. In determining this matter I have had regard to the written evidence referred to above and the oral evidence given by each party. Throughout these reasons I will refer to a number of facts.  Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.  The findings of fact are made on the balance of probabilities.

Relevant Legal Provisions

1. The applicable legislation for this dispute is the Child Support (Assessment) Act (1989) (“The Act”).

2. Section 143(1) provides that if an amount of child support is paid by a person to another and the first person is not liable to pay the amount, that amount may be recovered from the payee by an order of the court. In determining such applications 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.[2]

   [2] S. 143(3)

3. In circumstances where the court has made a declaration pursuant to s.107 that an applicant should not be subjected to a child support assessment, as is the case here, and the court is considering making an order for repayment regard must be had to the provisions of s.143(3B) which provides:[3] 

   [3] S. 143(3A)

   For the purposes of subsection (3A), the court must have regard to the following matters:

   (a)  whether the payee or the payer knew or suspected, or should reasonably have known or suspected, that the payer was not a parent of the child;

   (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;

   (c) whether there was any delay by the payer in applying under section 107 for a declaration once he or she knew, or should reasonably have known, that he or she was not a parent of the child;

   (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;

   (e)  the relationship between the payer and the child;

   (f)  the financial circumstances of the payee and the payer.

Evidence

1. The applicant’s evidence was that he was not aware that he was not the father of the child until he received the outcome of the paternity testing on 22 June 2016.  He said that he had always believed that he was in an exclusive sexual relationship with the respondent at the time of the child’s conception.  He denied the respondent’s suggestion that she had told him that she was in another relationship and that she had informed him during her pregnancy that there was “a strong likelihood” that the child was not his biological child.  His evidence was that the mother had told him “we are having a baby” and they then started making plans together in relation to housing and raising the child.  They were not living together when the mother became pregnant. 

2. In her oral evidence the respondent said that she had been in a relationship with another man, named Mr N, she could not recall his surname, and only had sex once with the applicant around the time the child was conceived.  She said that it was her belief that the father of the child could have been either of the men as she couldn’t work out exactly how many weeks pregnant she was.  She apparently informed Mr N of her pregnancy and he told her he wanted nothing to do with the child and ended their relationship.  She then told the applicant about the pregnancy.

3. The applicant was at the child’s birth.

4. The respondent completed, signed and submitted the relevant form with the Queensland Department of Births, Deaths and Marriages for the registration of the child’s birth and stated that the applicant was the child’s father.

5. The child underwent a heel prick test whilst in the hospital and the parties were informed that the child’s blood type was B Negative.  The respondent’s evidence was that neither of the parties was B Negative and that this should have confirmed in the applicant’s mind that he was not the father of the child.  She said that both she and the applicant were O Positive.  The applicant denied this, saying he is B Negative and had known that at the time of the child’s birth as he had been a blood donor prior to her birth.  He tendered a copy of a blood test result completed in 2015 which corroborates his assertion that he is B Negative.

6. The applicant gave evidence that the respondent applied for a child support assessment about five days after they separated and in doing so informed the Child Support Agency that the applicant was the father of the child.  On 8 October 2014 the Family Court of Australia made parenting orders by consent between the parties.  These orders were negotiated at mediation and provided for the child to live primarily with the respondent but spend substantial and significant time with the applicant.  The applicant said at no time during the process of obtaining these orders did the respondent indicate to him that he was not the father of the child.  The applicant fulfilled a parenting role with and for the child.

7. On 13 October 2015 the respondent gave evidence in proceedings for a domestic violence order under the Domestic and Family Violence Protection Act (Qld) 2012 in which she was the applicant.  At the commencement of this hearing her lawyer informed the court that the parties to these proceedings were in a de facto relationship and had a child together.  In the course of her evidence she said that she became pregnant after having a date with the applicant.  At no stage during these proceedings was the question of the child’s paternity raised.

8. The applicant gave evidence that the first time he became aware that there was an issue in relation to paternity was when he read the respondent’s Response on 20 April 2016.  In his oral evidence he said that at no time during their relationship was anything said that would have led him to believe that he was not the child’s father.  After he became aware he was not the father in June 2016, until October 2016 he wanted to remain in the role of father to the child and to financially support her.  He ultimately formed the view that it would be better for the child to know the truth and decided to withdraw from the child’s life.

Discussion 

1. I now turn my mind to the disputed evidence and a consideration of the matters set out in s.143(3B) referred to above.

2. In submissions the respondent submitted that I should accept her evidence that the applicant was always aware that he might not have been the father of the child but was prepared to take on the role of father and that I should have regard to the fact that even after the he became aware that he was not the father he still wanted to be involved in the child’s life.  She submitted that if I accepted her position I would dismiss the applicant’s application.  The applicant argued that I would find he had been purposely and knowingly deceived by the respondent into believing he was the father of the child. 

3. In assessing the evidence as given by each of the parties I was not persuaded that the mother was entirely truthful.  I accept the applicant’s evidence that he was not told by the respondent that he may not be the father of the child.  I preferred his version of the conversation between the parties as to the pregnancy. It is highly likely that when the respondent’s relationship with Mr N broke down she wanted to ensure that the child would have a father in her life and because she had had sexual intercourse with the applicant she hoped to persuade him that he was the father. 

4. I also reject the respondent’s evidence in relation to the child’s heel prick test results and the applicant’s blood group.  The applicant did not present as a person who would have readily accepted an outcome that would have questioned the paternity of the child.  I accept his evidence that his blood group is B Negative and that this is the same as the child’s.  This would not have raised any concern in his mind.

5. I am satisfied the respondent knowingly misled the applicant and made false statements as to the child’s paternity to the Department of Births, Deaths and Marriages and to the Child Support Agency.  I find that the respondent only raised the issue as to paternity when faced with the applicant’s application for primary care of the child.

6. I accept the applicant was shocked to learn that he was not the child’s father. It is not surprising therefore that he did not immediately discontinue his parenting application or seek the s.107 declaration. He however did so within four months of becoming aware which in the circumstances is not a significant delay. Sadly for this child he no longer has a relationship with her.

7. Before determining if the respondent should pay back all or some of the monies paid by the applicant, it is important to look at the financial circumstances of each of the parties.  The applicant filed a financial statement on 10 March 2017 indicating that he had an income of $1,000 per week and personal expenses of $650 per week plus a further $150 that he pays on behalf of his partner.  He has no property of any significance.  The respondent filed her financial statement by leave on the day of the hearing.  She indicated an income of $720 per week being made up of $100 earnings as a (occupation omitted) and $600 from social security.  Her evidence was that she has qualifications as an (occupation omitted) and is studying her (course omitted) to become a (occupation omitted). Her partner earns $900 per week and pays $327 per week towards some of her expenses.  The statement indicates that she has expenses of around $1,300 per week.  These expenses include the care of her two children but I am satisfied that she receives more financial support from her partner than the $327 indicated in the statement.  Nevertheless her financial position is very modest.

8. The applicant argued that I should not accept the respondent’s evidence as to her financial position.  He tendered copies of Facebook posts that would indicate that the respondent has been advertising for work as a (occupation omitted) on top of her employment as a (occupation omitted). The advertisement would suggest that she has gone to some trouble to obtain an Australian Business Number and insurance.  She gave evidence that she had only done a couple of jobs to pay off textbooks and has not made a profit from the business.  I was left with the impression that she was minimising the extent of this enterprise so as to present herself in a poorer financial position than the reality.  Having said that however, I am satisfied that she still would not be earning a significant income given she is also juggling the care of two children, one a baby, studying and a part time job in a (employer omitted).

9. The respondent argued that she would not be in a position to repay the money.  Whilst I accept that an order for her to repay the money would be a further burden to her already modest financial circumstances, I am of the view that an order should be made given my findings as to her deceit of the applicant.  To do otherwise would not be just and equitable.  However taking into account the modest financial means of the respondent, I propose to make an order that the sum of $6,693.91 be paid back by way of periodic sum.  I will set the sum at $65 per week so that the total sum will be paid back within two years.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn

Date:  19 January 2018

A2 – Bundle of pages from the respondent’s Facebook site