MERIWETHER and WILBURN

[2018] FCWA 140

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: CHILD SUPPORT (ASSESSMENT) ACT 1989

LOCATION: PERTH

CITATION: MERIWETHER and WILBURN [2018] FCWA 140

CORAM: SUTHERLAND J

HEARD: 16 MAY 2018

DELIVERED : 1 AUGUST 2018

FILE NO/S: PTW 2507 of 2000

BETWEEN: MR MERIWETHER

Applicant

AND

MS WILBURN

Respondent

Catchwords:

CHILD SUPPORT - Leave to bring s 107 application out of time for a declaration that the applicant is not the parent of the child the subject of a child support assessment - Recovery of child support and reimbursement of other costs from respondent - Case turns on its own facts

Legislation:

Child Support (Assessment) Act 1989 (Cth)

Representation:

Counsel:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant

Solicitors:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant

Case(s) referred to in decision(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

INTRODUCTION:

1 In late 2012, [Mr Meriwether] discovered he was not the biological father of [D], then aged 14, the only child of his former marriage to [Ms Wilburn]. Mr Meriwether now seeks the following orders:

a) Pursuant to s 143 of the Child Support (Assessment) Act 1989 (Cth) ("the Act"), Ms Wilburn reimburse him all child support payments made by him, including any overpayments, and interest thereon, within 30 days;

b) Ms Wilburn reimburse him the full costs of the DNA testing, together with interest thereon, within 30 days;

c) Ms Wilburn pay his costs of the proceedings.

2 Ms Wilburn seeks that Mr Meriwether's application be dismissed in its entirety and that he pay her costs of the proceedings.

3 In his original application, Mr Meriwether also sought orders pursuant to s 79A of the Family Law Act 1975 (Cth) to set aside consent property settlement orders made between the parties in 2008. At the commencement of the trial, Mr Meriwether abandoned his s 79A application. I made orders by consent that the application be dismissed.

THE EVIDENCE:

4 Mr Meriwether relied upon his trial affidavit and financial statement both filed on 2 June 2017. Ms Wilburn relied upon her trial affidavit filed on 11 July 2017 and financial statement filed 10 July 2017, together with her supplementary affidavit filed on 4 May 2018. There was some confusion about the status of an affidavit filed on behalf of Ms Wilburn by [Mr A], D's biological father.[1] Although Ms Wilburn assumed the affidavit was in evidence, she did not notify either the Court or Mr Meriwether that she intended to rely upon the affidavit (either in her Papers for the Judge, her Trial Plan or in her opening submissions). She also did not arrange for Mr A to be made available for cross-examination. At the end of the day, I considered it appropriate to allow Mr A’s affidavit into evidence, but to give it such weight as I considered appropriate.

[1] Mr A’s affidavit was filed on 10 July 2017.

5 I am satisfied both parties attempted to give their evidence honestly and as they saw it. However, I had some concerns that Ms Wilburn struggled to give her evidence in a balanced manner. For example, in her trial affidavit, Ms Wilburn appeared to blame Mr Meriwether for her predicament, maintaining Mr Meriwether’s behaviour during their marriage led her to seek out Mr A for "solace".

FACTUAL BACKGROUND:

6 Mr A was born in [1952], Ms Wilburn was born in [1957] and Mr Meriwether was born in [1966].

7 Mr A’s evidence was that in or about 1971 or 1972 he was involved in a motor cycle accident,[2] during which he suffered injuries to his testicles. He was informed by a doctor at the time that because of his injuries, he would never be able to have children. In his twenties, he married his first wife. They did not use any contraceptive measures during their short marriage and no children were conceived during their marriage. During his second marriage, he and his second wife also did not use any contraceptive measures. However, they did naturally conceive a child in 1986. Mr A and Ms Wilburn met in about 1990. Thereafter, they were in a relationship for approximately 4 ½ years. During their relationship they did not use any contraceptive measures and did not conceive a child.

[2] Mr A’s evidence was that he had the motor bike accident when he was 19 years old.

8 Whilst I am satisfied Mr A told Ms Wilburn during their relationship that he had been in an accident and as a consequence was infertile, I am not satisfied it was reasonable of Ms Wilburn to simply accept that this was the case, particularly as Ms Wilburn was aware that he had previously fathered a child.

9 After a relatively short relationship, Mr Meriwether and Ms Wilburn married in 1996. I accept Mr Meriwether’s evidence that after the parties were married, they both wanted to start a family and had sexual intercourse on a regular basis. Ms Wilburn's evidence about the circumstances of D’s conception was confused and difficult to follow in her trial affidavit. However, I am satisfied that approximately nine months prior to D’s birth she arranged to meet with Mr A. They had sexual intercourse and D was conceived. I accept Mr Meriwether’s evidence that when Ms Wilburn fell pregnant, he was unaware Ms Wilburn had engaged in sexual intercourse with Mr A and he had no reason to doubt he was the biological father. Ms Wilburn conceded in cross-examination that she did not tell Mr Meriwether she met up with Mr A and had sexual intercourse with him. Ms Wilburn gave birth to D [in 1998]. Mr Meriwether was registered as the biological father on D’s birth certificate.

10 The parties separated on a final basis in March 2000. After separation, D lived with Ms Wilburn and spent time with Mr Meriwether on a regular basis. Sometime after separation, Ms Wilburn applied for an administrative assessment of child support against Mr Meriwether from the Child Support Agency ("the CSA"). Mr Meriwether was subsequently assessed to pay child support. Mr Meriwether annexed to his trial affidavit, a Payer Transaction Statement for the period from 30 March 2000 to 29 May 2017. The statement revealed that:

a) Mr Meriwhether had been assessed to pay a total amount of $35,587.76 as at 29 May 2017.

b) Mr Meriwhether had paid a total amount of $35,940.90 and accordingly was in credit in the amount of $353.14 as at 29 May 2017.

c) Mr Meriwhether’s last payment to the CSA was made in December 2012. As a result of account adjustments in January 2013, Mr Meriwhether was substantially in credit. From January 2013 until 30 October 2016, when his liability ceased, Mr Meriwhether’s monthly child support payments were simply deducted from his credit balance, leaving the final credit balance of $353.14.

11 In about May 2001, Ms Wilburn sought family law legal advice from [Law Firm A].[3] Law Firm A wrote to Mr Meriwether on 17 May 2001 seeking Mr Meriwether's response to a number of parenting, child support and financial issues raised by Ms Wilburn. Mr Meriwether instructed solicitors, who responded to Law Firm A on his behalf in around June 2001. There was no evidence as to the progress of negotiations and it does not appear any concluded financial agreement was reached by the parties.

[3] [Footnote deleted].

12 In about 2003, Ms Wilburn and D moved to [Country Town A]. Mr Meriwether continued to spend time with D on a regular basis, with D staying over with Mr Meriwether usually every two or three weekends.

13 Ms Wilburn eventually commenced financial proceedings in 2007. The parties reached a final agreement and consent orders were made by the Court on 8 August 2008. Mr Meriwether’s position was that Ms Wilburn received 78.8 per cent of the property pool. On the other hand, Ms Wilburn’s position was that she received 57.5 per cent of the property pool, based on "contribution of my assets prior to the relationship and a child". On either party’s position, it appears Ms Wilburn received an adjustment in her favour pursuant to s 75(2) in the property settlement, in part on the incorrect premise that D was Mr Meriwether’s biological child.

14 After the property proceedings were completed, Ms Wilburn and D moved back to Perth and Mr Meriwether spent time with D, usually for the weekend every two weeks or so. After D started high school, the arrangements became more ad hoc; D would call Mr Meriwether and they would spend time together, usually once a month or so.

15 I accept Mr Meriwether’s evidence that in 2012, his mother regularly told him D did not look like him and questioned whether D was his son. Primarily to put his mother’s mind at ease, Mr Meriwether arranged for a parentage test to be done. He did so without either D’s or Ms Wilburn's knowledge or consent. He received the test results in December 2012, which excluded Mr Meriwether from being D’s biological father. I accept Mr Meriwether's evidence that he was gutted by the revelation he was not D’s biological father, as he had assumed the test would simply confirm he was D’s biological father.

16 I accept Mr Meriwether’s evidence that he couldn’t accept the first test results and so in March 2013, he arranged for another parentage test to be done, again without either D’s or Ms Wilburn's knowledge or consent. The second test also excluded Mr Meriwether from being D’s biological father. I accept Mr Meriwether’s evidence that after receiving the second test results:

I felt I was between a rock and a hard place. I had maintained a good ongoing relationship with [D] and he saw me as his dad. I didn't know what to do, as I knew that every path forward would emotionally hurt someone else as well as myself.

17 I accept Mr Meriwether’s evidence that his physical and mental health deteriorated and he fell into a deep depression. He subsequently sought assistance from his doctor and was diagnosed with major depression and anxiety. He was prescribed medications and was referred to a psychologist for ongoing counselling.

18 Eventually, in or about early 2014, Mr Meriwether arranged to meet with Ms Wilburn and provided her with copies of the test results. I am satisfied that Ms Wilburn was initially shocked by the test results, but later in the conversation told Mr Meriwether her former partner Mr A was D’s father. I am satisfied that during their conversation, Mr Meriwether told Ms Wilburn he was concerned about how D would cope if he was told the news. I accept Mr Meriwether’s concerns were heightened because of his own experience of losing his father to suicide when he was about the same age as D. Ms Wilburn agreed not to tell D until he was older. However, she subsequently did inform D.

19 Although Ms Wilburn maintained Mr Meriwether has continued to maintain a good father / son relationship with D, I am not satisfied this is the case. I accept Mr Meriwether’s evidence that after D learnt Mr Meriwether was not his biological father, the relationship between them drifted away, particularly after he commenced these proceedings, and it has now significantly broken down. Apart from very occasional contact, for example, when D recently needed help getting his car started, I am satisfied that Mr Meriwether rarely sees or hears from D. I also accept Mr Meriwether's evidence that on the night before the trial commenced, D phoned him. D told Mr Meriwether that if Mr Meriwether's application was successful he would not talk to Mr Meriwether again.

20 During the trial, Ms Wilburn maintained:

a) she did not receive any child support from Mr Meriwether after December 2012, apart from one payment in May 2014;

b) the child support payments received by her from Mr Meriwether over the years totalled $28,692.79; and

c) she believed the CSA Agency was holding a credit of over $7,000.

21 At first blush, Ms Wilburn’s position appeared to be inconsistent with:

a) the Payer Transaction Statement, which indicated Mr Meriwether’s credit balance continued to be debited each month until the final payment [in] October 2016;

b) Ms Wilburn’s evidence in her trial affidavit that she telephoned the CSA in 2014 and asked them to cancel the child support payments, but was informed that because of her Centrelink family payments, her child support assessment could not be cancelled and needed to remain in place; and

c) correspondence from the CSA to Mr Meriwether [in mid‑2016] indicating it had received a request from Ms Wilburn to continue collecting child support for D after his 18^th birthday [in Spring 2016] and until he completed his secondary education in November that year.

22 However, I consider it likely the inconsistencies may be explained:

a) firstly, as a consequence Ms Wilburn having been overpaid as a result of the January 2013 account adjustments; and

b) secondly as a consequence of the CSA continuing to deduct the child support payments from Mr Meriwether’s account after May 2014, but not disbursing them to Ms Wilburn, after being advised by Mr Meriwether on 14 May 2014 of the parentage testing results.

23 I accept Mr Meriwether’s evidence that his pro bono lawyers telephoned the CSA in May 2017 and were informed Ms Wilburn had only been disbursed a total of $28,582.71 from the child support payments made by him. Unfortunately, neither Mr Meriwether nor Ms Wilburn obtained any documents from the CSA to verify the exact amount that had been disbursed to Ms Wilburn over the years, or to confirm it was still holding in excess of $7,000 in credit for Mr Meriwether.

24 I accept Mr Meriwether’s evidence that during his telephone call with the CSA in May 2014, he was provided with advice as to his next steps, but did nothing about it. Eventually, and under pressure from his mother, Mr Meriwether sought legal advice in March 2015, and in May 2015, attempted to have some negotiations with Ms Wilburn about the matter, both directly and subsequently through his pro bono lawyer. After the negotiations failed, Mr Meriwether commenced these proceedings in January 2016.

25 On 3 March 2016, the Court made a number of programming orders, including for Ms Wilburn to file responding documents within 35 days and for the parties to attend a Conciliation Conference. Ms Wilburn eventually filed her responding documents on 30 June 2016 and the parties attended a Conciliation Conference on 5 July 2016. No agreement was reached and the Registrar made standard programming orders for the matter to proceed to trial.

26 By the time of the first Readiness Hearing on 15 March 2017, neither Mr Meriwether nor Ms Wilburn had filed their trial documents. Both parties did file their trial documents prior to the second Readiness Hearing on 11 July 2017. The Registrar made the usual orders for the allocation of a trial date. The first trial was listed to commence on 20 February 2018. The parties consented to the trial being vacated after Ms Wilburn’s doctor assessed that she was suffering from anxiety and depression and was not then able to cope with the pressures of a trial. The trial eventually commenced before me in May 2018. At the time of the trial, both parties continued to suffer from ill health and were unemployed.

27 Although Mr A did not disclose the matter in his affidavit, Ms Wilburn conceded Mr A has since fathered a third child, who is now approximately 10 years old. She also conceded that since it was confirmed Mr A was D’s father, D met him on a couple of occasions.

APPLICATION FOR LEAVE TO BRING SECTION 107 CHILD SUPPORT APPLICATION OUT OF TIME AND SECTION 107 DECLARATION:

Applicable law:

28 Pursuant to s 107(1) of the Act, if the Child Support Registrar accepts an application for administrative assessment of child support for a child, an application may be made, subject to sub-s (1A), to a court having jurisdiction under the Act for a declaration that a person should not be assessed in respect of the costs of the child because the person is not a parent of the child. Pursuant to s 107(2) of the Assessment Act, the application must be made within the time prescribed by the applicable Rules of Court or within such further time as is allowed under the applicable Rules of Court.

29 In this case, the applicable time prescribed by the Family Law Rules expired in or about 2001. Nevertheless, I have the discretion to grant an extension of time for the filing of such an application.[4] In the exercise of my discretion, relevant factors to consider include whether Mr Meriwether has a reasonable explanation for the delay and whether Ms Wilburn will suffer undue prejudice if leave is granted.

Discussion and conclusions:

[4] Refer to r 1.14 of the Family Law Rules.

30 I am satisfied leave should be granted for the following reasons:

a) I am satisfied that Mr Meriwether had no reason to believe he was not D’s biological father when Ms Wilburn fell pregnant, during their marriage or after separation. Mr Meriwether only did the parentage test in late 2012 to put his mother’s mind at ease.

b) I am satisfied that Mr Meriwether was very shocked and distressed when he learnt he was not D’s biological father. His physical and mental health deteriorated and he was subsequently diagnosed with major depression and anxiety. He did not know what to do about the situation and so did nothing for long periods of time. I am also satisfied that Mr Meriwether delayed doing anything as he was very concerned: D would reject him if D learnt he was not D’s biological father; and D would also suffer significant confusion and psychologist distress. Mr Meriwether’s concerns in this regard were heightened by his own experience of losing his father when he was around the same age as D then was.

c) I accept Mr Meriwether’s evidence that in 2015 he obtained pro bono legal advice and then tried to resolve matters with Ms Wilburn, both directly and through his lawyers. The negotiations were not successful.

d) I accept Ms Wilburn’s submission that Mr Meriwether delayed taking any action for a considerable period of time after learning he was not D’s biological father. However, I am satisfied that Mr Meriwether’s explanations for the delay are reasonable and understandable in the circumstances. Notwithstanding that the parties have been separated for many years and Ms Wilburn wishes to simply get on with her life, I am not persuaded Ms Wilburn will suffer undue prejudice if the leave is granted.

31 Pursuant to s 107(4) of the Act, the court may grant the declaration if the court is satisfied that the person should not be assessed in respect of the costs of the child because the person is not a parent of the child. In this case, it is common ground that Mr Meriwether is not the biological parent of D. Accordingly, I am satisfied that the declaration should be made. Pursuant to ss 107(5) and (6) of the Act, if the court grants the declaration, the application for administrative assessment of child support is to be taken never to have been accepted by the Registrar; and the court must, as soon as practicable, consider making an order under s 143 of the Act.

RECOVERY OF CHILD SUPPORT AND REIMBURSEMENT OF OTHER COSTS:

Applicable law:

32 Mr Meriwether’s application for recovery of his child support payments is made pursuant to s 143 of the Act. The court may make such orders in relation to Ms Wilburn (as 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.[5]

[5] Refer to s 143(3) of the Assessment Act.

33 In circumstances such as this case, where the court has made a declaration pursuant to s 107 that Mr Meriwether should not be assessed in respect of D’s costs because he is not a parent of the child and court: is considering whether to make an order under s 143 of the Assessment Act; or if such an order is to be made, the amount that is to be recovered and whether the payment should be made in the form of a lump sum payment or periodic amount, then I must have regard to the following factors:

a) whether Mr Meriwether or Ms Wilburn knew or suspected, or should reasonably have known or suspected, that Mr Meriwether was not D’s parent;

b) whether Mr Meriwether or Ms Wilburn engaged in any conduct (by act or omission) that directly or indirectly resulted in the application for administrative assessment of child support for D being accepted by the Child Support Registrar;

c) whether there was any delay by Mr Meriwether in applying under s 107 for a declaration once he knew, or should reasonably have known, that he was not D’s parent;

d) whether there is any other child support that is, or may become, payable to Ms Wilburn for D by the person who is D’s father;

e) the relationship between Mr Meriwether and D; and

f) the financial circumstances of Mr Meriwether and Ms Wilburn.[6]

DISCUSSION AND CONCLUSIONS:

[6] Refer to section 143(3A) and (3B) of the Assessment Act.

34 I am satisfied that Mr Meriwether had no knowledge or reason to suspect that he was not D’s biological father. On the other hand, and notwithstanding any assurances Mr A may have given to Ms Wilburn about being infertile, in my view, the fact that Ms Wilburn knew Mr A had previously fathered a child should reasonably have given rise to a suspicion in Ms Wilburn's mind when she fell pregnant that Mr A may be the father, not Mr Meriwether.

35 After Mr Meriwether learnt that he was not D’s biological father in December 2012, he delayed taking any action. However, as was apparent from the Payer Transaction Statement, by this time, he was already significantly in credit with the CSA and did not make any further payments to the CSA. After he contacted the CSA in May 2014, the CSA continued to debit Mr Meriwether’s account each month with the assessed child support, but it appears the CSA did not disburse the payments to Ms Wilburn.

36 Ms Wilburn conceded in cross-examination that after her meeting with Mr Meriwether in early 2014, she did not subsequently seek an assessment of child support from Mr A. Ms Wilburn knew Mr A was ill, had signed everything he owned over to his wife and had no money. D turned 18 in [Spring] 2016 and he completed his secondary education later that year. As such, the child support case closed and there was no ability by any party to seek a retrospective child support assessment against Mr A.

37 Mr Meriwether’s relationship with D waned as D became a teenager. After D was informed that Mr Meriwether was not his biological father, the relationship between them drifted away and it has now significantly broken down. Unfortunately, it appears D’s attitude towards Mr Meriwether has been adversely impacted by his knowledge of these proceedings.

38 Both Mr Meriwether and Ms Wilburn made it clear in their respective affidavits that they did not accept each other’s evidence about his / her financial position, including the value of their real estate. However, Mr Meriwether and Ms Wilburn both chose to largely ignore this issue in their cross-examination of each other.[7]

[7] Ms Wilburn did ask Mr Meriwether in cross-examination whether he had any documents to verify the amounts he had borrowed from his mother. Mr Meriwether confirmed that he had various documents, including receipts, and also confirmed that his mother directly paid bills for him when he couldn’t afford to pay them himself.

39 I accept Ms Wilburn’s submissions in her Papers for the Judge (which Mr Meriwether did not challenge in cross-examination) that she owns net assets and superannuation entitlements totalling approximately $372,000, including her home in [Suburb A] (valued at approximately $370,000 and subject to a mortgage of approximately $213,500) and an unencumbered investment property valued at approximately $200,000. Ms Wilburn recently closed down her [business], she is currently unemployed and in receipt of a Centrelink Newstart allowance. Her investment property is currently vacant and so she is not receiving any rental income from it. D continues to live with Ms Wilburn. He studies at TAFE and receives a youth allowance. As at July 2017, D worked part time at [a supermarket] and earned approximately $200 per week, but he has since ceased.

40 I accept Mr Meriwether’s evidence in his financial statement, as updated by him during the trial, that he owns net assets and superannuation entitlements totalling approximately $111,500, consisting primarily of his home in [Suburb B] (valued at approximately $302,500 and subject to a mortgage of approximately $191,500). I also accept Mr Meriwether’s evidence that he has been unemployed for several years. He has received a Centrelink Newstart allowance for approximately the last five years, but has been largely exempted from the Newstart job search requirements because of his poor mental health and other physical health issues. Mr Meriwether has struggled to meet his mortgage payments for some time. He has made a number of hardship applications to his bank to obtain temporary mortgage relief and also made a successful hardship application to his superannuation fund. He received $7,800 net from his superannuation and then used the proceeds to meet his mortgage payments for several months. Mr Meriwether has only been able to make ends meet by borrowing money from his mother.

41 Notwithstanding both parties are currently unemployed and are of relatively modest financial means, I am satisfied that Ms Wilburn is in a stronger financial position than is Mr Meriwether, particularly as she owns an unencumbered investment property, in addition to her home.

42 In weighing the various factors identified above, I am satisfied that Ms Wilburn should make a substantial payment to Mr Meriwether in reimbursement of the child support she received for D and consider the amount of $20,000 is appropriate. In addition, as a result of this judgment, Mr Meriwether is entitled to receive a refund of any moneys still held in credit by the CSA in relation to his case.

43 Mr Meriwether also sought reimbursement of the costs of the two paternity tests. However, I am not persuaded that such an order is appropriate. Firstly, there was no evidence as to the total costs of the two tests (only evidence of the cost of the second test) and Mr Meriwether was unable to produce the relevant receipts when requested by Ms Wilburn to do so in cross‑examination. Secondly, Mr Meriwether acknowledged in his trial affidavit that he did not actually pay for the tests. Mr Meriwether’s evidence was that his mother said she would pay for the tests and she did so. There was no evidence to suggest that Mr Meriwether’s mother had made any demand for repayment from Mr Meriwether.

44 Given Ms Wilburn is currently unemployed, I am satisfied that she will need time to make arrangements to repay the sum, especially given she may be required to sell her investment property in order to make the payment. I propose to allow her a period of six months. In the event Ms Wilburn does not make payment within the timeframe specified, then she should also pay interest on the outstanding sum from time-to-time until the liability is paid in full.

ORDERS:

45 I propose to issue these reasons from chambers in order to give both parties an opportunity to consider them and my proposed orders as follows:

1. The time for making an application for a declaration under section 107 of the Child Support (Assessment) Act 1989 (Cth) is extended to 22 January 2016.

2. The Court declares that the Applicant, [MR MERIWETHER] should not be assessed in respect of the costs of the child, [D MERIWETHER] born [in] 1998 because the Applicant is not a parent of the child.

3. In addition to the reimbursement of any credits currently held by the Child Support Agency to the Applicant, the Respondent [MS WILBURN] is to pay the Applicant the sum of $20,000 by way of recovery of child support payments under section 143 of the Child Support (Assessment) Act 1989 within 6 months of the date of this order.

4. In the event that the Respondent does not reimburse the Applicant the amount of $20,000 within the timeframe specified in the preceding paragraph, then without prejudice to any other proceedings the Applicant may commence to enforce payment, the Respondent do pay interest on the sum outstanding from time-to-time, at the rate prescribed from time to time, until payment in full.

5. All outstanding proceedings be otherwise dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KV
ASSOCIATE

1 AUGUST 2018