Parentage dispute family law proceedings
Parentage disputes can figure strongly in disputes about a person’s liability to pay child support.
It sometime happens that where a child support assessment is issued against a person, that person then disputes that he is a parent of the child; parentage is in dispute.
Under s107(1) of the Child Support (Assessment) Act 1989 (Cth) (“CSAA”)), where effectively a child support assessment has been issued, an application may be made for a declaration that a person should not be assessed to pay child support due to a parentage dispute.
Child support as assessed is still payable after such an application is made but the amount paid is likely to be held by the Registrar until a decision is made as to whether or not the declaration should be made.
Contact our child custody lawyers Brisbane and our child custody lawyers Brisbane Northside for advice concerning any child support or parentage issues. We advise in all areas of family law and provide complimentary advice during your initial call with one of our family lawyers. You are also welcome to read on…..
Under section 69VA of the Family Law Act 1975 (Cth) (“FLA”), the family courts have power to determine a parentage dispute for the purposes of proceedings and the court may also issue a declaration of parentage that is conclusive evidence of parentage under Commonwealth laws. That declaration can only be sought if parentage is in issue in proceedings before the family courts.
However, if an application for a declaration has been made under section 107(1) of CSSA, this will be enough to allow the family courts to make a declaration under that section 69VA FLA and for a person to seek orders for parentage testing in order to settle a parentage dispute.
The Court requires that any DNA testing is carried out in accordance with Family Law regulations at an approved laboratory.
If a party refuses to participate in DNA testing or to take a child for testing where testing has been ordered, the Court may draw inferences from this refusal that are just and equitable and still make Orders determining a parentage dispute.
Effect of a declaration pursuant to s107 Child Support (Assessment) Act 1989
If a declaration is made that a person should not be assessed to pay child support as parentage is not established, the application for child support that had originally been made is treated as if it was never accepted by the child support agency.
Repayment of child support paid to a parent by a person where that a parentage dispute is settled and that person is found not to be the father – s143 Family Law act 1975 (Cth)
If the Court makes a declaration pursuant to s107 Child Support (Assessment) Act 1989 that a person should not have paid child support for a child as parentage is not established, the Court must then consider making an Order pursuant to s143 Child Support (Assessment) Act 1989 (Cth) for repayment by the person who received those child support payments of all or part of those monies.
The Court may make any such orders as it considers just and equitable for the purposes of adjusting, or giving effect to, the rights of the parties and of the child concerned, when determining how much money, if any, a person should repay to the applicant who is found not to be the father in a parentage dispute.
When determining what is just and equitable, the Court will have regard to certain factors including:
- whether the applicant for the declaration or the other person who received the payments knew or suspected, or should reasonably have known or suspected, that the applicant was not a parent of the child;
- whether the applicant or that other person engaged in any conduct (by act or omission) that directly or indirectly resulted in the application for administrative assessment of child support for the child being accepted by the Registrar;
- whether there was any delay by the applicant in applying for a finding by a Court that he is not the child’s parent;
- whether there was any delay by the applicant in applying under Section 107 for a declaration once he knew, or should reasonably have known, that he was not a parent of the child;
- whether there is any other child support that is, or may become, payable to the other person for the child by another person who is a parent of the child;
- the relationship between the applicant and the child; and
- the financial circumstances of both the applicant and the other person.
Contact our family lawyers Brisbane or family lawyers Brisbane Northside for advice concerning a parentage dispute or any other family law issues, whether regards child support, child custody or property settlement. We are able to advise you concerning any area of family law. We aim to assist our clients to reach agreement with their former partner without the need to go to Court. If however court action becomes necessary, we have the experience to represent you at Court.
The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from LGM family lawyers Brisbane.