Repayment of child support by Mother to Father
- I now turn my mind to the disputed evidence and a consideration of the matters set out in s.143(3B) referred to above.
- In submissions the respondent submitted that I should accept her evidence that the applicant was always aware that he might not have been the father of the child but was prepared to take on the role of father and that I should have regard to the fact that even after the he became aware that he was not the father he still wanted to be involved in the child’s life. She submitted that if I accepted her position I would dismiss the applicant’s application. The applicant argued that I would find he had been purposely and knowingly deceived by the respondent into believing he was the father of the child.
- In assessing the evidence as given by each of the parties I was not persuaded that the mother was entirely truthful. I accept the applicant’s evidence that he was not told by the respondent that he may not be the father of the child. I preferred his version of the conversation between the parties as to the pregnancy. It is highly likely that when the respondent’s relationship with Mr N broke down she wanted to ensure that the child would have a father in her life and because she had had sexual intercourse with the applicant she hoped to persuade him that he was the father.
- I also reject the respondent’s evidence in relation to the child’s heel prick test results and the applicant’s blood group. The applicant did not present as a person who would have readily accepted an outcome that would have questioned the paternity of the child. I accept his evidence that his blood group is B Negative and that this is the same as the child’s. This would not have raised any concern in his mind.
- I am satisfied the respondent knowingly misled the applicant and made false statements as to the child’s paternity to the Department of Births, Deaths and Marriages and to the Child Support Agency. I find that the respondent only raised the issue as to paternity when faced with the applicant’s application for primary care of the child.
- I accept the applicant was shocked to learn that he was not the child’s father. It is not surprising therefore that he did not immediately discontinue his parenting application or seek the s.107 declaration. He however did so within four months of becoming aware which in the circumstances is not a significant delay. Sadly for this child he no longer has a relationship with her.
- Before determining if the respondent should pay back all or some of the monies paid by the applicant, it is important to look at the financial circumstances of each of the parties. The applicant filed a financial statement on 10 March 2017 indicating that he had an income of $1,000 per week and personal expenses of $650 per week plus a further $150 that he pays on behalf of his partner. He has no property of any significance. The respondent filed her financial statement by leave on the day of the hearing. She indicated an income of $720 per week being made up of $100 earnings as a (occupation omitted) and $600 from social security. Her evidence was that she has qualifications as an (occupation omitted) and is studying her (course omitted) to become a (occupation omitted). Her partner earns $900 per week and pays $327 per week towards some of her expenses. The statement indicates that she has expenses of around $1,300 per week. These expenses include the care of her two children but I am satisfied that she receives more financial support from her partner than the $327 indicated in the statement. Nevertheless her financial position is very modest.
- The applicant argued that I should not accept the respondent’s evidence as to her financial position. He tendered copies of Facebook posts that would indicate that the respondent has been advertising for work as a (occupation omitted) on top of her employment as a (occupation omitted). The advertisement would suggest that she has gone to some trouble to obtain an Australian Business Number and insurance. She gave evidence that she had only done a couple of jobs to pay off textbooks and has not made a profit from the business. I was left with the impression that she was minimising the extent of this enterprise so as to present herself in a poorer financial position than the reality. Having said that however, I am satisfied that she still would not be earning a significant income given she is also juggling the care of two children, one a baby, studying and a part time job in a (employer omitted).
- The respondent argued that she would not be in a position to repay the money. Whilst I accept that an order for her to repay the money would be a further burden to her already modest financial circumstances, I am of the view that an order should be made given my findings as to her deceit of the applicant. To do otherwise would not be just and equitable. However taking into account the modest financial means of the respondent, I propose to make an order that the sum of $6,693.91 be paid back by way of periodic sum. I will set the sum at $65 per week so that the total sum will be paid back within two years.
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Sunshine Coast / Brisbane / Gold Coast / Townsville
