A recent Full Court decision highlighted the need for parties to be aware of strict time limits under the child support legislation and complexities involved without first having received independent specialist advice from a family lawyer.
In this particular case, the mother gave birth to a child in 2013 and lodged an assessment for child support against the person whom she believed was the father. The father objected to the assessment being made and the Registrar of the Child Support Agency refused to make an assessment on the basis that they were not satisfied that the alleged father was in fact the parent of the subject child.
For four years the mother did nothing. Eventually, the mother filed an Application in the Federal Circuit Court of Australia for a declaration of paternity and a declaration pursuant to the Child Support (Assessment) Act that a person should be assessed in respect of the costs of the child.
The problem was that that declaration should have been made 56 days after the original refusal of assessment back in 2013. The Trial Judge, whilst in her reasons for judgment accepted that there should be an extension of time granted, did not actually formally grant the extension. The Full Court remedied that defect.
The problem was that the mother, and also the father, seemed to be under the misapprehension that it was a requirement to obtain an Order that child support be backdated from the child’s birth. The father also seemed to be under a similar misapprehension that he had to seek an Order opposing the backdating of child support from the date of the child’s birth.
A paternity test was ordered by the Federal Circuit Court Judge and showed that the alleged father was in fact the parent of the child. The father now accepted that he was the parent and liable for assessment. The issue then that the parties had was the so-called backdating of the assessment from the child’s birth.
The Trial Judge then proceeded to make the declaration that the father be assessed in respect of the costs of the child pursuant to Section 106A of the Child Support (Assessment) Act.
As the Full Court stated, the problem here is that the parties and the Trial Judge were under the misapprehension that somehow the backdating was a discretionary matter, when in fact the legislation clearly was retrospective in nature. In other words, once leave was granted to the mother to bring the Application (after the time limit had elapsed) and if she was successful in that Application, then the Order would be retrospective automatically under the legislation and would apply from the date of the child’s birth.
The Full Court pointed out that what the Trial Judge and the parties failed to understand is that once the declaration of paternity showed the father was in fact the parent, then the mother had the right to then lodge an application for an administrative assessment and obtain an assessment from the current date. The mother did not necessarily need the Section 106A declaration due to the fact that this automatically had the retrospective effect of the father paying child support from the date of the child’s birth.
The Full Court held that the Orders should be set aside and the matter set for rehearing before a different Judge so that proper consideration could be given to the prejudice. The Trial Judge’s apparent misconception about the operation of Section 106A of the Child Support (Assessment) Act led to a failure to consider a matter of essential importance to the exercise of discretion, that is the potential prejudice to either parent or the child for the consequences of making or not making the declaration.
The Trial Judge had incorrectly included the effect that it would be a matter for the Child Support Agency to determine the date upon which the assessment would commence was in fact an error of law. Therefore the matter was remitted for rehearing.
Written by Brett Hartley
