SCOTLAND & KING
[2012] FMCAfam 690
•10 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SCOTLAND & KING | [2012] FMCAfam 690 |
| CHILD SUPPORT – Parentage – declaration – declaration that applicant should not be assessed in respects of costs of child – where order previously made that applicant was not the father of the child. CHILD SUPPORT – Recovery of overpayments – adjustment of parties’ rights under Child Support (Assessment) Act 1989, s.143 – relevant considerations – where applicant did not seek recovery of child support paid – consent orders – just and equitable. |
| Child Support (Assessment) Act 1989 (Cth), ss.106A,107, 143 Family Law Act 1975 (Cth), ss.69VA, 106A |
| Applicant: | MR SCOTLAND |
| Respondent: | MS KING |
| File Number: | PAC 6042 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 July 2012 |
| Date of Last Submission: | 10 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2012 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Jamieson |
| Solicitors for the Applicant: | Gibson Howlin Lawyers |
| Solicitor for the Respondent: | Ms Cole (appeared as duty lawyer) |
| Solicitors for the Respondent: | Legal Aid NSW Parramatta |
BY CONSENT IT IS ORDERED
That the time for making an Application for a Declaration under Subsection 107(1) of the Child Support (Assessment) Act 1989 is extended to 17 May 2012.
A Declaration under Section 107 of the Child (Assessment) Act 1989 that the Applicant, MR SCOTLAND should not be assessed in respect of the costs of the child, [X] KING (also known as [X] SCOTLAND) born [in] 2005 because the Applicant is not a parent of the child.
A Declaration pursuant to Section 69VA of the Family Law Act 1975 that MR SCOTLAND is not the father of the child, [X] KING (also known as [X] SCOTLAND) born [in] 2005.
That there be no Order for the recovery of Child Support paid from the Respondent pursuant to Section 143 of the Child Support (Assessment) Act 1989.
That the parties each pay their own legal costs.
NOTATION
A.The Court NOTES that any debt currently owed by the Applicant to the Child Support Agency for unpaid child support for the child [X] KING born [in] 2005, is not recoverable by the Respondent.
IT IS NOTED that publication of this judgment under the pseudonym Scotland & King is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAC 6042 of 2008
| MR SCOTLAND |
Applicant
And
| MS KING |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for a declaration that the Applicant should not be assessed in respect of the costs of the child [X] King who was born [in] 2005 because he is not a parent of the child. The Applicant also seeks a declaration of parentage under s.69VA of the Family Law Act 1975.
The Respondent Mother has consented to the Application and the parties wish to enter into Consent Orders. The Applicant does not seek to recover any amounts of child support already paid to the Respondent. He just wishes to be relieved of the obligation to make further payments.
Background
The background to this matter is set out in detail in the Applicant’s affidavit filed on 17th May 2012 in support of the Application.
The Applicant commenced living in a relationship with the Mother in July 2004. She gave birth to the child [X] [in] 2005. Since the child’s birth the Father has been paying child support as a result of an administrative assessment of child support.
The Applicant told the Mother on 24th March 2006 that he did not believe he was the child’s father. She moved out of the home in which the parties were living on 3rd April, taking the child [X] with her.
The Applicant deposed that he began to drink heavily after the relationship ended.
On 18th December 2008 the Mother made application to the Parramatta Registry of the Court, seeking an order that the Applicant’s name be removed from the child’s birth certificate. In her affidavit in support affirmed on 17th December 2008 she deposed that the Applicant was not the child’s birth father and that the child had never used the name of Scotland, only the name of King, which was the name which she wished to use when the child commenced school.
On 2nd March 2009 the Mother attended Court in person. The Applicant did not attend, notwithstanding that he had been served in January. Halligan FM made the following Orders:
1. The Mother may change the name of the child [X] Scotland born [in] 2005 to [X] King.
2. Both parties shall do all things and sign all documents necessary to request the NSW Registrar of Births Deaths and Marriages to alter the child’s birth certificate to remove the name of Mr Scotland as the child’s father.
3. The Court declares that Mr Scotland is not the child’s father.
4. Pursuant to s.106A, if the Respondent fails to sign a document necessary to be signed under these orders, a Registrar of the court may sign the document on behalf of the Respondent.
The reference to section 106A in Order 4 is a reference to s.106A of the Family Law Act 1975, not s.106A of the Child Support (Assessment) Act 1989.
Neither the Applicant nor the Mother took any steps to advise the Child Agency that payments of child support should cease.
The Applicant has now commenced proceedings seeking a declaration under s.107 of the Child Support (Assessment) Act 1989 that he should not be assessed in respect of the costs of the child because he is not a parent of the child. He also seeks a declaration under s.69VA of the Family Law Act 1975.
Consent Orders
The parties have attended Court and wish to enter into Consent Orders:
a)extending the time for making an Application for a declaration under s.107(1) of the Child Support (Assessment) Act 1989;
b)declaring that the Applicant should not be assesses in respect of the costs of the child because he is not a parent of the child;
c)declaring that the Applicant is not the father of the child [X] King also known as [X] Scotland;
d)making no order for the recovery from the Mother of child support paid under s.143 of the Child Support (Assessment) Act 1989; and
e)the parties are to pay their own costs.
Consideration of an Order under s. 143 of the Act
Where a Court makes a declaration under s.107(1), the Court is required by s.107(6) to consider, as soon as practicable, making an order under s.143 for the recovery from the payee amounts paid by way of child support. This requirement applies whether or not the Court is making an order by consent.
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 the child concerned (s.143(3)). Subsection (3A) provides:
(3A) 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 a periodic amount;
then the court must have regard to the matters set out in subsection (3B). This subsection does not limit subsection (3).
The matters in subsection (3B) to which the Court must have regard are:
(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 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 is that the Applicant suspected that he was not the father of the child before the child was born. In the affidavit of Ms S, the Applicant’s mother, of 3rd April 2012,[1] she deposes that the child appeared to have the colouring of a dark-skinned baby.
[1] which curiously describes events between 2007 and 2011 in the present tense
The parties were certainly both aware that the Applicant was not the father of the child by March 2006. Neither party made any approach to the Child Support Agency to terminate the Applicant’s liability to pay child support under the administrative assessment.
The Mother’s application to the Court in March 2009 brought about a declaration that the Applicant was not the child’s father. The Mother was not represented and the Applicant did not attend Court. His evidence is that he was an alcoholic at that stage:
I was advised by the Respondent verbally that once my name was removed from the Birth Certificate my requirement to pay child support would cease and I would not be liable for any further payments. As I was an alcoholic and suffering from depression at this point in time, I did not follow up with the Child Support Agency on what the Respondent had advised me. I was not in a financial position to seek legal advice at this time as I was not working steadily due to my depression and alcohol problems.[2]
[2] Affidavit of Mr Scotland 16.5.2012 at paragraph [10]
The Applicant has not spent any time with the child since the Mother left in 2006[3], so he has no relationship with her. He is not seeking reimbursement of the amounts he has paid and he only seeks a cessation of his current liability to pay child support.[4]
[3] Ibid at [20]
[4] Ibid at [21]
Conclusions
In all the circumstances, I am satisfied that it is just and equitable that no order should be made under s.143 for the recovery of child support paid by the Applicant to the Respondent.
The Orders to which the parties consent will therefore be made.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 12 July 2012
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