Friday, February 3, 2012
Disputing Parentage in the payment of Child Support
Disputing Parentage in Payment of Child Support: Section 107 of the Child Support (Assessment) Act
What happens when a father who is required to pay child support, but believes the child is not his?
The answer can be found in Section 107 of the Child Support (Assessment) Act, which provides that liable parents can seek a declaration that the applicant (the eligible parent) was not entitled to administrative assessment of child support for the child payable by the person.
Where the father is disputing paternity the application seeking final relief must be lodged in the Federal Magistrates Court (Eastern States only)/Family Court/ Family Court of WA (Western Australia) seeking a declaration under s.107. A declaration should also be sought under section 69VA of the Family Law Act, which allows the Court, as well as deciding the issue of the parentage for the purposes of proceedings, to make a declaration of parentage.
Section 69W empowers the Court to make an order that parties should undergo a parentage testing procedure if the parentage of a child is a question in issue in proceedings before the Court. These orders would be sought by application in a case. Section 69X enables the Court to make specific orders to require a person concerned to submit to a medical procedure or provide the necessary sample so that the parentage testing can be carried out.
If the party refuses to comply with an order made under 69W or 69X the court is may draw such inferences from the failure to undergo testing as appears just in the circumstances (s.69Y(2)). It should be noted that the Father will likely have to pay the costs of the tests initially, although the court may order the burden shared.
The scientific evidence isn’t the be all and end all. Evidence about cohabitation and the sexual relations of the parties will also be relevant to the determination.