If you are in a situation where you are being asked to pay child support for a child and you do not think it is yours, you may want to know what all the options are before deciding on a course of action. Caroline Counsel Family Lawyers can provide you with the legal advice and also common-sense advice based on experience and thus guide you through the legal process.
If you do nothing and you are not the father, you can end up paying child support for someone else’s child.
Pursuant to section 29(2) of the Child Support Assessment Act, the Registrar will be satisfied that you are the parent if the following presumptions apply:
- You were married to the mother and a divorce has not yet been finalised;
- You are listed on the register of births;
- Where the Court has found that you are the parent of a child;
- Where you are listed on adoption papers;
- Where the child was born within 44 weeks of your marriage with the mother being annulled;
- Where you were married to the mother, separated, then resumed cohabitating for three months or less and the child is born within 44 weeks of the end of that period of cohabitation even if you are now divorced; and
- Where the Registrar is satisfied you are the parent of a child born as a result of artificial conception procedures or under surrogacy arrangements pursuant to s 60H and s 60HB of the Family Law Act 1975.
If you become aware that you are being assessed for child support and you do not believe you are the father, you may require the Court to make a declaration that you are not the father pursuant to section 107 of the Child Support (Assessment) Act 1975.
It is important that you contact Caroline Counsel Family Lawyers as quickly as possible as you have a limited timeframe to make an application to the Court seeking this declaration.
If you apply to the Court for a declaration that you are not the father, you can also seek court orders for a parentage test pursuant to s 69W of the Family Law Act 1975.
The Court will only make an order for a parentage test where:
- You have an honest and reasonable belief that you are not the father;
- Where your belief rebuts the presumption of paternity pursuant to s 69R of the Family Law Act 1975; and
- Where the test is in the best interests of the child.
It is important to note that if the Court orders a parentage test and you find out that you are the father, you may have difficulties seeking parenting orders if you want to have a relationship with your child. First, the mother is likely to be extremely upset that you have gone to these lengths to deny your child with the financial support that both the mother and the child needed. Secondly, the mother is likely to also be upset that you have doubted her fidelity and have, by virtue of the denial of parentage, accused her in turn of being unfaithful to you. Thirdly, if it was more than apparent that the child was yours and you pushed on with a parentage test, the Court may take a dim view of you having disputed parentage in a case where it was self-evident that you are in fact the father.
On the one hand you cannot say “I am not the dad” and in the next breath say “now I want all the duties and responsibilities of being a dad confirmed by the Court”.
If the Court finds that you are not the father, the Court can order an end to the child support assessment and where applicable, for child support to be repaid.
The information in this blog does not constitute legal advice and cannot be relied upon by you. If you require advice specific to your situation, you must contact Caroline Counsel Family Lawyers for legal advice. The contents of this blog are relevant as at 10 September 2018. We recommend you obtain specific advice relevant to you and your family’s situation.