What Happens If You Think You Are Not the Father and You Have Been Paying Child Support

24/04/2019

A parent can be paying child support for children by way of informal agreement, pursuant to a Child Support Agreement or because they have been assessed for payment of child support by the Child Support Agency.

When the Child Support Agency has assessed a parent for payment of child support the amounts to be paid can be significant.

The Agency will take into account various factors and apply the Child Support Formula. The basic formula involves a consideration :

  • Calculate each parent’s child support income (adjusted), which is a parent’s taxable income minus a self-support amount.
  • Add both parents’ child support incomes together to get a combined child support income.
  • Divide each parents’ individual child support income by the combined child support income to get an income percentage for each parent.
  • Work out each parent’s care percentage of the child using the care and cost table.
  • Work out each parent’s care cost percentage of the child using the care and cost table.
  • Subtract the cost percentage from the income percentage for each parent.

You can use the calculator on the Child Support website to obtain an estimated assessment of Child Support.

Once an Assessment has been made the payment of the child support amount is required and the child support amount can be deducted from the salary of the person who is obliged to pay by that person’s employer pursuant to a Garnishee Order.

What if you are not the Father or think you may not be the father?

In New South Wales it is a legal requirement that the birth of a child be registered with the Registry of Births, Deaths and Marriages.  The registration of the birth of a child allows the person making the application, to register the name of the mother and father on the Birth Certificate.  Circumstances sometimes arise where the Applicant before registration of birth, will insert the name of the father.  The nominated father may take the view that he is not the father. 

The Birth Certificate can be amended but once the name of a parent goes onto the Certificate the name can only be removed by Order of a Court.  In cases where it is claimed that the person nominated as father is not the father, the application would need to be supported by an paternity test (DNA test).  The Registry of Births, Deaths and Marriages will amend the Certificate but will only amend the Certificate if the Court Orders the amendment of the Birth Certificate. 

It is common practice for the Child Support Agency to accept paternity as set out in the Birth Certificate.  In other words, a person can be named as father and recorded as father on the Birth Certificate but he may not be the father. 

Application to the Court

In circumstances where a person believes he is not the father of the child, an application can be made pursuant to the Family Law Act 1975 seeking a Declaration that the father is not a person who should be assessed for payment of child support in respect of the child on the grounds that he is not the father of the child. 

Preliminary to making a Declaration as to Paternity, the Court would make an Order requiring the mother, putative father and child to undergo a Paternity Testing with an Accredited Paternity Testing Laboratory. 

In the event the mother does not comply with the Court Orders and fails to submit to the Paternity Testing, Section 69Y of the Family Law Act allows the Court to draw such inferences from the failure to participate in the testing process as appear just in the circumstances.  

If the test results show that the male tested is not the father then the Court will make the Declaration and can also make an Order requiring the Registry of Births, Deaths and Marriages to amend the Birth Certificate.  The Court will make the Declaration that he is not a person who should be assessed for payment of costs of the child. 

The Order of the Court will be an Order effective from the date of the Order.  There are circumstances in which a person (being found later not to be the father) has paid child support can recover the overpayment.  However, this requires a consideration of the factual matrix and the financial position of the parties as the Court will not always order that the payment made by the person who is later found not to be the Father is to be repaid.

Do not delay in bringing an Application if you believe you are not the father.

If the Paternity Test shows that the male is the father of the child (or children) the Court will not make the Declaration.  Child support will have to be paid. 

Watson & Watson have conducted numerous matters in the Federal Circuit Court of Australia and successfully challenged the paternity of a child.  If you have any concerns regarding the paternity of your child or are named on the Birth Certificate as the father of a child whom you believe is not your biological child, please contact Richard Watson Senior Family Law Solicitor or his Personal Assistant to discuss your concern and address this important matter at the very outset.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.

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