There has recently been a lot of publicity surrounding the issue of men paying child support for children that are discovered after separation not to be their biological child. Whilst such situations are rare, clearly the devastation that results is significant. This is a sensitive topic and claims of deceit, trickery and betrayal feature prominently in descriptions of the mothers of such children.
What are the legal avenues available in these situations?
The highly publicised case of Magill v Magill has demonstrated that at present the court is not willing to entertain an action in deceit against the mother in these circumstances. Whilst three judges speculated that there may be circumstances where such an action is allowable, they would be extremely exceptional. It is therefore unadvisable to undertake such litigation.
However there are avenues within Family Law (as provided for in the Family Law Act and the Child Support Assessment Act) that address this situation.
The Family Law Act 1975 s 66X provides a mechanism for the reimbursement of monies or property transferred in respect to a maintenance order for a child where the court later determines the payer is not the parent of that child. The Court must make an order for repayment that it considers to be just and equitable in the circumstances. Only in exceptional circumstances is the court permitted to make an order for repayment that is less than the value of maintenance monies paid or property transferred for the purpose of maintenance.
The Child Support Assessment Act 1989 s107 provides for a person to seek a declaration that they are a non-liable parent in order to cease paying child support. Similarly to s66X of the Family Law Act 1975, s143 of the Child Support (Assessment) Act 1989 provides for recovery of money paid for child support where the payer is subsequently found to not be liable. Under this Act, it is at the discretion of court to make orders it considers ‘just and equitable’ giving consideration to the child as well as the parties involved.
It is important to note that the Family Law avenues do not appear to incorporate any element of retribution or exemplary damages. They are aimed at reimbursement and not punishment. Whilst it is understandable that a people in these situations feel anger, Family Law always treats the best interests of the child as its paramount consideration and is not a venue for exacting vengeance upon a former partner.
Prime Lawyers have extensive experience in representing clients to put parenting arrangements in place. Our family lawyers will carefully consider every aspect of your case. Please contact us on (02) 9521 2222 to speak with a family lawyer today. You can also send through your enquiry online now and we will contact you shortly