Repayment of child support after Federal Circuit Court finds the applicant is not the father
22 December, 2017Family Law
In Hallis & Fielder, Judge Brown heard applications for a declaration that the Mr Hallis should not pay child support because he was not the child’s father and to recover child support previously paid to the mother. Mr Hallis was named on the child’s birth certificate and had brought an application to spend time with the child after the mother refused him contact. He had paid $4,142 in child support to the mother before parentage testing confirmed he was not the father. He argued that the mother had deceived him by saying he was the father for financial gain. The mother said he was a party to the deception undertaken to spare him embarrassment and to avoid upsetting his family’s feelings.
Mr Hallis commenced proceedings on 31 August 2016 seeking orders that the child live with Ms Fielder and that he spend time with her at specified times. In his supporting affidavit, he called the child ‘my daughter’. Mr Hallis said it was only recently that Ms Fielder told him he was not the father and the only reason he resumed the relationship after it had broken down after a short time was because of the pregnancy.
Ms Fielder sought an order that the parties have shared parental responsibility for the child, the child live with her mother and spend time with Mr Hallis to be agreed. She did not specifically raise any issue about the possibility that Mr Hallis was not the father.
Mr Hallis said the information he was not the father, conveyed to him by Ms Fielder at the family dispute conference, was a bombshell for which he was emotionally unprepared. The family consultant confirmed that Ms Fielder informed her she had not previously told Mr Hallis he was not the father because she feared him.
The Court found Ms Fielder did not inform Mr Hallis she had had sexual intercourse with someone else around the time the child was conceived. If she had done so, it would have been unlikely that Mr Hallis would have resumed his relationship with her. The Court rejected Ms Fielder’s evidence she told Mr Hallis during her pregnancy he was not the child’s father and he had gone along with this subterfuge to spare himself personal embarrassment and to avoid disappointing his parents.
Before the parties’ final separation, Ms Fielder sent Mr Hallis several affectionate and personal text messages referring to physical and behavioural similarities between him and the child, which suggested he was the father. After separation, Ms Fielder applied to the Child Support Registrar child support to be paid to her by Mr Hallis. To do this, it would have been necessary for her to identify Mr Hallis as the biological father. She made this application knowing it was false.
At the time of the hearing, Mr Hallis was employed with an annual salary of around $172,000. He owned his home, valued at $320,000, subject to a mortgage of $142,000. He had superannuation of around $120,000. He argued Ms Fielder’s motivation was cynical, based on financial advantage for herself. Ms Fielder was in receipt of Centrelink income and had significant debts.
The Court found Ms Fielder had a moral obligation to inform Mr Hallis of the possibility that someone else could be the child’s father but she chose instead to deceive him. Only when Mr Hallis was pursuing his parenting application did Ms Fielder decide to take steps to remove Mr Hallis as the child’s father.
While Ms Fielder was not in a strong financial position, the Court made an order that she should repay the child support paid to her by Mr Hallis. She was ordered to repay all child support paid by Mr Hallis ($4,412.00) and to pay his legal costs fixed at $5,000.00.
For more information on this topic please contact Margaret Miller, Partner and Family Lawyer. This article has been prepared by Bell Legal Group for general information purposes only. It is not legal advice and should not be relied upon as such.