Radcliffe and Hall
[2011] FMCAfam 781
•2 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RADCLIFFE & HALL | [2011] FMCAfam 781 |
| CHILD SUPPORT – Application for declaration for paternity – applicant found not to be father of child aged nine years – respondent declared not to be entitled to administrative assessment of child support in respect of child concerned – applicant seeks reimbursement of monies paid pursuant to erroneous assessment – matters to be considered – just and equitable. |
| Child Support (Assessment) Act 1989, ss.107, 143 |
| Applicant: | MR RADCLIFFE |
| Respondent: | MS HALL |
| File Number: | ADC 4481 of 2010 |
| Judgment of: | Brown FM |
| Hearing date: | 26 July 2011 |
| Date of Last Submission: | 26 July 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 2 August 2011 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondent: | Ms Hallows |
| Solicitors for the Respondent: | Legal Services Commission of SA |
ORDERS
It being noted that pursuant to section 107 of the Child Support Assessment Act (1989) it has been declared that the respondent MS HALL was not entitled to an administrative assessment of child support in respect of the child [X] born [in] 2001 from the applicant MR RADCLIFFE.
IT IS ORDERED:
The respondent repay the applicant the sum of $3,730.10 being child support erroneously collected from him in respect of the aforesaid child by way of fortnightly instalments of $15.00 with the first such instalment to be made no later than 31 August 2011 and each fortnight thereafter until the amount is paid in full.
The order made herein be registered with the Registrar of the Child Support Agency for collection.
The application and response be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Radcliffe & Hall is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 4481 of 2010
| MR RADCLIFFE |
Applicant
And
| MS HALL |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns the application of the provisions of s.143 of the Child Support (Assessment) Act 1989 (“the Assessment Act”). The parties to the proceedings are Mr Radcliffe (“the applicant”) and
Ms Hall (“the respondent”).
Ms Hall is the mother of [X] born [in] 2001. [X] has always lived with his mother. Until recently, the Child Support Agency had assumed that Mr Radcliffe was [X]’s father and it had levied child support from him accordingly.
The applicant commenced these proceedings on 26 November 2010. He sought orders that Ms Hall, [X] and he undergo a parentage testing procedure to ascertain definitively whether he was or was not [X]’s father.
At the present time, Mr Radcliffe is involved in a relationship with
Ms S. In July 2010 he and Ms S embarked upon a course of fertility treatment in order to conceive a child. During the course of this treatment, it was discovered that Mr Radcliffe is physiologically incapable of conceiving a child.
On 16 February 2011, the first return date of Mr Radcliffe’s application, the parties agreed to undergo a parentage testing procedure, which would include [X]. The result of this parentage testing was that Mr Radcliffe was excluded as [X]’s father. This testing conclusively establishes both scientifically and for the purposes of the applicable legislation, that Mr Radcliffe cannot be [X]’s father.
As a consequence, on 20 April 2011, the Court formally declared that Mr Radcliffe was not the father of [X]. As a consequence, pursuant to the provisions of section 107 of the Assessment Act, it was further declared that Ms Hall was not entitled to an administrative assessment of child support in respect of [X], payable to her by Mr Radcliffe.
As a consequence of this declaration, the applicant has sought to be repaid monies advanced by him, by way of child support, to Ms Hall in respect of [X]. The sum so paid amounts to $3,730.10, which was paid between 16 July 2003 and 16 March 2011.
Ms Hall resists the application for repayment. It is her position that her financial circumstances preclude her from making the repayment sought and it would be oppressive for the Court to make such an order.
Mr Radcliffe’s position is that, in the past, he found himself in straitened financial circumstances but, nonetheless, was pursued by the Child Support Agency for payments of child support, which were garnished from his income.
In these circumstances, it is his view that considerations of justice and equity should dictate that he should be reimbursed the child support paid by him, notwithstanding the mother’s straitened financial circumstances. Underpinning his position is his perception that Ms Hall has manipulated the overall situation to his detriment.
Legal principles applicable
Mr Radcliffe’s application is governed by the provisions of section 107 and section 143 of the Child Support (Assessment) Act 1989. Pursuant to section 143(1), if a payer of child support subsequently is found not to have been liable to pay an amount of child support, any sum so paid may be recovered from its payee in a Court having jurisdiction under the Assessment Act. This Court has such jurisdiction.
Pursuant to section 143(3), the Court is granted a discretion in respect of any order it makes for the repayment of child support, which has been incorrectly levied because no actual liability exists to pay it. This is the situation so far as Mr Radcliffe is concerned. Given he is not [X]’s biological parent he has no legal liability to provide financial support for him
In particular, pursuant to the section, in such circumstances, the Court is authorised to make the order in relation to repayment by 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.”
Section 107 authorises a person to seek a declaration from the Court that he should not be assessed in respect of the costs of any child because he is not the parent of the child concerned. It was pursuant to this section that Mr Radcliffe brought his Initiating Application. It was pursuant to section 107 that the declaration of 20 April 2011 was made.
Pursuant to section 143(3A), if the Court has made a declaration under section 107 that a payer of child support is not a parent of the applicable child and the Court is considering making an order for reimbursement of child support previously paid, the Court is required to consider the form of such payment, particularly whether it be made in a lump sum form or a periodic amount.
Again this provision confirms the wide discretion which resides in the Court so far as the power to order repayment of child support erroneously paid. However, as with all such discretions, it is one which must be judicially exercised, after a careful consideration of the applicable legislatively stipulated criteria.
More importantly, in the context of the current proceedings, the Court is directed to consider a number of matters, which are set out in sub-section (3B) regarding any application for repayment.
The matters to be considered under s.143(3B) are as follows:
“(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.”
The evidence
(a) The applicant’s evidence
Mr Radcliffe has provided brief evidence regarding his personal and financial circumstances. By profession, he is a [omitted]. However, at present, he is employed as a [omitted].
I accept that Mr Radcliffe is a low income earner. He has deposed that his gross weekly salary is in the vicinity of $850 per week. On this sum he pays tax of $165. His major recurrent expense is rent of $70 per week.
Mr Radcliffe does not have any significant savings to speak of. He has modest superannuation in a sum of $1,800 and owns two motor vehicles, which are each more than 15 years old and which are worth somewhere around $2,500 in total.
At the present time, Ms S is not in paid employment and is totally dependent upon Mr Radcliffe. Ms S has an eight year old son, who suffers from autism. The applicant regards the child as being his step‑son and so also his financial responsibility.
In all these circumstances, I accept that the applicant cannot be regarded as being in a strong financial position. On any view, he is struggling financially. As such, I accept that the potential receipt by him of a sum in the vicinity of $4,000 is a matter of some significance to him.
In submissions to me, Mr Radcliffe indicated that he did not feel bitterly disposed towards Ms Hall. However, it is his position that the CSA regularly intercepted payments of child support, which were directed to Ms Hall from his modest levels of remuneration and had little regard for the hardship which this caused him.
Mr Radcliffe described himself as having been “harried” by the CSA. The impression which he wished to leave being that he had been hard done by. He indicated that, given the circumstances, he had felt compelled to delay or avoid filing his necessary tax returns and had often worked for “cash in hand”.
These latter statements, which perhaps could be characterised as being made against his own interests, confirmed my impression of
Mr Radcliffe as an honest and uncomplicated person. He confirmed that the relationship between him and Ms Hall was a fleeting one and currently he had no relationship whatsoever with [X]. However, the implication of his evidence was that Ms Hall herself had not been supportive of him developing any form of relationship with [X].
It is common ground between the parties that they separated long before [X] was born. Mr Radcliffe acknowledges that he had a sexual relationship with Ms Hall, which he would characterise as a “one night stand” after the two had met on the internet.
When Ms Hall informed him that she was pregnant and he was the father of her child, Mr Radcliffe deposes that he accepted Ms Hall’s statement and duly signed a “blue form” which she sent to him but which he did not read in detail or seek advice about. It is his understanding that it was this form, which provided the basis for the applicable child support assessment to be made.
(b) The respondent’s evidence
Ms Hall lives in the Ipswich area of Queensland. Accordingly, arrangements were made for her to attend Court for cross examination by Mr Radcliffe via the telephone. Mr Radcliffe did not cross examine Ms Hall about her account of the parties’ brief relationship together. Accordingly, this aspect of her evidence is unchallenged.
Ms Hall’s evidence is that she and Mr Radcliffe met on an internet chat room in late 2000. At the time Ms Hall was living in Sydney and
Mr Radcliffe was in South Australia. The parties communicated electronically for several months.
Shortly prior to Easter 2001, Ms Hall visited Mr Radcliffe for a few days. She discovered she was pregnant at Easter time. It is the effect of her evidence that she believed that the only person who could have been the father of her child was Mr Radcliffe.
Clearly, Ms Hall was mistaken in this regard. She has now deposed that, prior to meeting Mr Radcliffe, she had been involved in a violent and abusive relationship. This had caused her to become depressed. In this context, some concerned friends had arranged for her to go on a “blind date”. Ms Hall has deposed that she had a “brief one-night sexual encounter with [this person, whom she has] not seen since”.[1]
[1] See Ms Hall Affidavit filed 12 July 2011 at para.14
Ms Hall has also deposed that because of the depression and stress she was suffering, at the time, her memory and though processes were “not very clear”. She has not provided any independent medical evidence to support this assertion but, in all the circumstances, this – the absence of medical evidence – is hardly surprising.
Ms Hall has deposed that she does not know the identity of [X]’s biological father. Given the circumstances of her relationship with the person concerned and the time which has passed in the period since [X]’s conception, it is her evidence that she has no means of either identifying or locating him. As such, it is not open to her to seek child support for [X] from his actual father.
Ms Hall has deposed that, following [X]’s birth, Mr Radcliffe was unwilling to execute the necessary notification forms regarding the birth. However, as she was in receipt of social security benefits at the time, Centrelink required her to apply for child support as a condition of her ongoing receipt of benefits. In these circumstances, she asked Mr Radcliffe to sign a statutory declaration stating that he was [X]’s father so that she could continue receiving the family tax benefit.
It seems apparent, from the evidence, that Mr Radcliffe signed this form, which grounded the relevant child support assessment. At this stage, it does not seem to be the position that Mr Radcliffe had any doubt that he was [X]’s father.
Clearly, the parties did not have any solid base on which to build a parenting relationship. It is Ms Hall’s evidence that, when [X] was around six weeks old, she and Mr Radcliffe attempted to live together in South Australia. However, it soon became apparent to each of them that they were incompatible. They finally separated after about two weeks.
Thereafter, Ms Hall moved to Ipswich to live. She and Mr Radcliffe stayed in contact via the internet. She travelled to South Australia with [X] on about four occasions thereafter but it seems there has been little, if any, contact between [X] and Mr Radcliffe since [X] was aged around two and a half years. As such it is common ground between the parties that there is no relationship between [X] and Mr Radcliffe.
Ms Hall has lived in the Ipswich area for many years. I accept her evidence that she has not been in the paid workforce for the past ten years or so. Besides [X], she has six other children, three of whom are adult and living in Sydney.
Ms Hall has been in a relationship with the father of her three youngest children since 2007. He is Mr H. The two married [in] 2010. They are the parents of [A] born [in] 2007; [B] born [in] 2009; and [C] born [in] 2011.
Mr H is in receipt of a disability pension due to a long standing back injury. He also suffers from dyslexia. Accordingly, the prospects of him entering the paid workforce are extremely limited. Because of her relationship with Mr H, the respondent receives a partner payment. She also receives the maximum amount of parenting payments in respect of [X], [A], [B] and [C], together with rental assistance and the large family supplement.
Mr H receives benefits of around $500 per fortnight. Ms Hall receives a partner payment of around $420 per fortnight. In addition, she receives an amount of $840 per fortnight, which represents her rental assistance and income support flowing from her responsibility for the four children concerned. In total, an amount of around $1,760 comes into the Hall family each fortnight, which equates to a sum of $45,760 per annum.
The major recurrent expense of the respondent and Mr H is rent of $220 per week. In addition, they have a consumer credit debt, in respect of a motor vehicle, which amounts to $101 per week, which is paid to Capital Finance. The motor vehicle, which is the subject to the loan, is a 2002 Land Rover Discovery.
Ms Hall deposes that there is approximately $30,000 owing on the car loan but that the car itself is not mechanically sound because it needs a new gear box, which is beyond her and Mr H means to install. In these circumstances, she asserts that the car is essentially worthless. Mr H, nevertheless, continues to make the required recurrent loan payments. He does not wish to go bankrupt.
Given the breakdown of the Discovery motor vehicle and the fact that the respondent and Mr H live in a rural area, they have purchased a replacement motor vehicle – a 1996 Holden Commodore, for the sum of $300. Ms Hall regards this vehicle as a necessity for her family but is fearful that it will not remain roadworthy for long.
The Discovery motor vehicle is not technically the respondent’s property, as it is registered in Mr H sole name. It is her evidence that she has no property of significant value and no savings. Her only assets being her household furniture and contents.
Mr Radcliffe submitted to me that in dollar terms, the Hall family was better off than his own. This may be so, but the reality is that there are more mouths to feed in the respondent’s family than in Mr Radcliffe’s. It is my finding that the respondent is in straitened financial circumstances, a state of affairs which is not likely to change for the foreseeable future.
Conclusions
Mr Radcliffe has paid an amount of $3,730.10 to Ms Hall, by way of child support, a sum to which she was not legally entitled given the circumstances of [X]’s paternity. The sum was paid over a period of seven years and eight months. It equates to a fortnightly payment of around $18.65.
The largest payment made by Mr Radcliffe was a sum of $1,233.70 made in November 2008.[2] I assume this was the redirection of a tax refund. In these circumstances, Mr Radcliffe cannot be described as being either a willing or regular payer of child support.
[2] See Child Support Payee Transaction Statement annexed to the Respondent’s Affidavit
In practical terms, given the quantum of the amount paid and the sporadic nature of its payment, the child support received by Ms Hall from Mr Radcliffe was not a source of income on which she could reliably rely to provide financial support for [X]. The reality is that she alone has been the main financial provider for [X] through her social security entitlements.
However, the fact remains that Mr Radcliffe was not legally responsible to provide financial support for [X]. Against this background, the various criteria arising under section 143(3B) of the Assessment Act must be considered.
Ms Hall has deposed that she never contemplated that her earlier liaison resulted in [X]’s conception. In her Affidavit, which
Mr Radcliffe has not sought to challenge, she deposed as follows:
“From the dates given to me by my medical advisors I always believed that Mr Radcliffe must have been [X]’s father and [X] has always looked like Mr Radcliffe so I never doubted this. Obviously I have made a mistake regarding this and I regret this and understand that Mr Radcliffe would be upset at this turn of events.”[3]
[3] Ibid at para.15
In addition, Mr Radcliffe did not challenge [X]’s paternity in the period immediately following his birth. Initially at least, he and Ms Hall made some attempt to be a family and there was some interaction, albeit limited in nature, between Mr Radcliffe and [X].
In all those circumstances, I do not think that the evidence, currently before me, indicates that Ms Hall attempted consciously to deceive
Mr Radcliffe about [X]’s paternity. I accept that she believed that
Mr Radcliffe was almost certain to be [X]’s father. As such her actions in providing the relevant statutory declaration to Mr Radcliffe and what she did with the form afterwards were not a conscious plan on her part to trick or entrap Mr Radcliffe.
Obviously, her belief was misplaced. I think it unlikely that Ms Hall would have forgotten her earlier liaison with the person she now concludes must be [X]’s father. I have not been provided with conclusive evidence regarding the circumstances of Ms Hall’s pregnancy with [X], particularly whether it went to term or otherwise.
As such, it is difficult for me to form a definitive view as to whether objectively Ms Hall should have known or at least suspected that there was some reasonable probability that Mr Radcliffe could not have been [X]’s father.
However, regardless of the absence of independent medical evidence, commonsense would seem to indicate that the act of intercourse which resulted in [X]’s conception and the various incidents of intercourse which occurred between Mr Radcliffe and Ms Hall must have occurred reasonably proximate to one another.
As such, at the very least, it would seem that it would have been prudent (and honest and transparent on her part) for Ms Hall to have advised Mr Radcliffe of what had happened earlier, particularly given the unstable nature of the relationship between the two. However I can also appreciate that such a disclosure may have been difficult to provide at the relevant time.
This failure to advise Mr Radcliffe of her earlier involvement does seem to me to be tantamount to an indirect omission, in the context delineated by sub-section (b). Mr Radcliffe is not a wordly person but it would seem to me to be highly unlikely that he would have either executed the statutory declaration in question or omitted to seek advice in respect of the paternity question, if he had known that Ms Hall had had sexual intercourse with another person shortly prior to him.
On the other hand, Mr Radcliffe was not in a position to be able to deny conclusively he was [X]’s father. Without wishing to appear either trite or prurient, it takes two willing participants, engaging in unprotected sexual intercourse, to conceive a child. Mr Radcliffe concedes, as he must, that he was one such participant and, as such, it was obviously physically possible that he was [X]’s father. There is no evidence to indicate that he was tricked into having sex with Ms Hall.
Given this state of affairs, I can understand why Mr Radcliffe was not more proactive in respect of the issue of resolving [X]’s paternity. However, the cardinal factual in this regard was Ms Hall’s omission to advise him of her earlier involvement. In this regard, she was at best lax and at worst disingenuous. I would categorise her as having behaved negligently rather than deceitfully.
Mr Radcliffe discovered that he could not be [X]’s father in difficult circumstances. He wasted little time in bringing his application pursuant to section 107 of the Assessment Act. In these circumstances, I do not think he can be criticised for any delay in the issue of [X]’s paternity being resolved.
There is no relationship whatsoever between Mr Radcliffe and [X]. Now that the issue of [X]’s paternity has been resolved, there is no other familial tie between Mr Radcliffe and Ms Hall. Accordingly, the provisions of sub-section (d) have no application to the circumstances of this case.
The most important consideration in this case would appear to be the financial circumstances of the parties. To each of them, $3,700 is a significant sum of money. From Ms Hall’s point of view, I accept that there is no realistic prospect of her raising such a sum, in a lump form, in the short to medium term. From Mr Radcliffe’s perspective, the sum would provide a welcome financial resource for him and his family.
I accept that for the foreseeable future Ms Hall will be in receipt of social security. Necessarily the amounts of social security are designed to support the immediate needs of its recipients and their dependents. Although social security is not paid at a subsistence level, it does not allow for the production of any significant surplus or provide for largesse.
Accordingly, if there is to be any repayment, it must be in a periodic form. The central questions for the Court being whether it would be just and equitable to make such an order given that Ms Hall’s sole source of income is social security, designed to support herself and her dependent children and if so, what its quantum should be.
I confess that I do not find these easy questions to answer, notwithstanding the sum of money involved is relatively modest.
Mr Radcliffe’s position is that it would be unfair to him if Ms Hall were now able to escape the consequences of her lack of candour to him and her earlier irresponsibility because of her current impecunious circumstances.
However, against this, it would seem to me that Mr Radcliffe also approached his intimate relationship with Ms Hall with some level of irresponsibility. He engaged in an act with Ms Hall, which has only one biological function. In some ways it could be said to be an accident of fate that he did not in fact conceive a child with Ms Hall.
However it is easy to be critical of both parties long after the event. Necessarily the circumstances of a romance are not always conducive to rational consideration. Passions can and do get in the way of judgement, as seems to have happened, so far as both parties are concerned.
The important distinction between the parties is that Ms Hall had knowledge of her earlier liaison, Mr Radcliffe did not. In the context of this case and what happened afterwards, this knowledge was crucial. Ms Hall withheld it. If Mr Radcliffe had known in 2001, what he now knows, the matter would have taken a significantly different course. In my view, in these circumstances, considerations of justice and equity dictate that there be some form of recompense made to Mr Radcliffe by Ms Hall.
The difficulty arising is what form that recompense should take given the respondent’s straitened financial circumstances. It would not be fair to Mr H, [X], [A], [B] and [C] if they are financially penalised as a consequence of something for which they can bear no personal responsibility and which occurred many years ago.
It seems to me that the balancing of the various considerations arising, particularly Ms Hall’s difficult financial circumstances, militate in favour of a periodic order for repayment being made. I propose that the repayment be by way of fortnightly payments of $15.00. I do not think that this payment will unduly penalise Ms Hall’s family.
On my calculations it will take a period of around nine and a half years to repay the sum in question. As such, I appreciate that the receipt of the recurrent sum is unlikely to make any significant different to the lifestyle currently being undertaken by Mr Radcliffe and his family. However the appeal of the order is that it will see Mr Radcliffe being repaid in broadly a similar manner to that in which he paid child support to Ms Hall for [X].
I understand that the Child Support Agency has authority to collect this debt on behalf of Mr Radcliffe and will be able to deduct the sum from Ms Hall’s social security entitlements. I anticipate that the quantum of the order will not offend any principles regarding the inalienability of social security payments arising under the applicable legislation.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgement.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 2 August 2011
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