“I have paid child support for seventeen years
and I just found out that I’m not her father!”
declared a man in the Federal Magistrate’s Court last year.
If a father has paid child support and later finds out that he is not the child’s biological father, can he recover this money? This recent Australian case heard by the Federal Magistrates Court addresses the issue. In Forsythe & Latimer & Anor, the father, (Mr F) began making child support payments for the child to the mother in 2000.
A DNA parentage test taken in 2009 demonstrated that he’s not the child’s biological father. He commenced proceedings in court and sought a declaration under Section 107 of the Child Support (Assessment Act). He claimed that he should not be paying child support because he is not the child’s parent.
Specifically, he sought an order that the mother, (Ms L) repay to him $39,090, being payments of child support which he made in the belief that he was the child’s biological father.
What factors does the court consider when making an order for recovery of child support payments when the payer is not the child’s biological parent?
The court has a discretion under Section 143 of the Act as to whether it will order a parent to repay child support under these circumstances. The court will consider several factors, including:
a) whether either party knew or suspected that the payer was not the child’s parent;
b) whether the either one engaged in any conduct that resulted in the application for an child support for the child being accepted by the Registrar;
c) whether the payer delayed in applying for a declaration once he or she knew, or should reasonably have known, that he or she was not the child’s parent;
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 the child’s parent;
e) the relationship between the payer and the child; and
f) the financial circumstances of the payee and the payer.
What did the court find?
In this case, the court found that it was fair that the mother should only repay child support payments she received from Mr F after she became aware that Mr F was not the child’s biological father. The court reasoned that in this case, Ms L was in strained financial circumstances. The court ordered Ms L to repay $6,142, which is the child support payments she received after the parties became aware that Mr F was not the child’s biological father.
In summary, if a mother receives child support payments from a manafter she becomes aware that he is not the child’s biological father, it is likely that the court will order that she repay him.
The moral of this story is, if you are in doubt as to whether you are a child’s biological father, promptly request a DNA parentage test. If you would like detailed legal advice tailored to your circumstances, please call us on 02 9261 4555.