Misattributed paternity (sometimes referred to as paternity fraud) is the situation when the person who is thought to be the child’s father, is not the child’s biological father.

Estimates as to the incidences of misattributed paternity vary from country to country however the rate commonly quoted is at about 10%.[i] In Australia, the rate of misattributed paternity in contested case is said to be about 20%.[ii]

A common circumstance where the fact of paternity is an issue is with respect to an application for child support. Obviously the issue can arise in other matters (such as with respect to a parenting matter – aka “child custody”) however combining the emotional aspects of the infidelity, loss of a child and past/ongoing financial obligations, it is submitted these matters have an emotional depth beyond what family lawyers may generally encounter.

In the author’s experience family lawyers like to steer clear of emotional issues where possible and I am no exception. What follows is a brief summary of the law with respect to the interaction between paternity, child support laws, parentage testing and recovery of child support paid.

The Family Law Act 1975 (“FLA”) provides for a number of presumptions with respect to identifying who is the father of a child. These presumptions arise from:

• Marriage[iii]
• Cohabitation[iv]
• Registration of birth[v]
• Findings of courts[vi]
• Acknowledgments of parentage[vii]

Section 69U provides these presumptions are rebuttable by proof on the balance of probabilities.

Other provisions of Commonwealth legislation identify who is a parent of a child born through artificial conception, surrogacy arrangements or adoption (in the family law context) but these will not be examined here.

If paternity is an issue in the proceeding, a declaration of parentage can be sought pursuant to section 69VA FLA which is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.

Provisions which assist with obtaining the necessary evidence are contained within Part VII, Division 12, Subdivision E (and include orders for parentage testing – section 69W FLA).

Section 3 of the Child Support Assessment Act 1989 (CSAA) provides parents have a primary duty to maintain their children.

Section 29 CSAA sets out who is a parent and is in many respects not dissimilar to the presumptions referred to in the FLA.

A number of other sections identify who may apply and who is liable to pay child support. In summary, child support liability arises when:

• There is an eligible child;[viii]
• An application is made by a parent[ix] or eligible carer;[x]
• The parents are not living together on a genuine domestic basis[xi]
• The liable parent[xii] is living in Australia or in a reciprocating jurisdiction[xiii]

If the above conditions are met, and the child support Registrar is satisfied the application is made in accordance with the manner specified in section 150A CSAA, child support will be payable by the liable parent.

There are a number of provisions of the CSAA that can assist in the event the liable parent does not believe they are the father of the child; and the eligible parent is not willing to assist.

A person aggrieved may bring an application in a court having jurisdiction under the CSAA and FLA. The most appropriate court is the Federal Circuit Court.

Section 107 CSAA allows a person to apply for a declaration that they “should not be assessed in respect of the costs of the child because the person is not a parent of the child”. To grant the declaration the court needs to be satisfied the person is not a parent.

Final orders for recovery of amounts paid where no liability exists can also be made pursuant to section 143 CSAA.

The nature of the relief is a final order and the application should be supported by an affidavit setting out the facts relied upon and a financial statement.

Importantly, a time limit applies to applications for declarations under section 107 CSAA that they be made “within the time prescribed by the applicable Rules of Court or within such further time as is allowed under the applicable Rules of Court.”[xiv]

The applicable rules of the Federal Circuit Court are Rule 25A.06 Federal Circuit Court Rules 2001 court which state:

“A person must file an application for a declaration under subsection 106A(2) or 107(1) of the Assessment Act within 56 days of the service on the applicant of a notice given under section 33 or 34 of that Act.”

Thus the time limit is within 56 days from service of the notice of the Registrar’s decision.

If the application is out of time, leave can be sought to proceed. Section 107 provides the application can be brought “within such further time as is allowed under the applicable Rules of Court.”

Rule 1.06 Federal Circuit Court Rules 2001 allows the court to dispense with compliance with the Rules in the “interests of justice” and; pursuant to Rule 3.05 the court may extend or shorten time fixed by the Rules.

The case law indicates that a satisfactory explanation for the delay will usually be sufficient[xv].

In Levine & Levine [2011] FMCAfam 821 the application was brought out of time when the child was 14. The evidence was that the mother made comments regarding paternity from the time the child was 4 years and the “father” had caught her in a compromising position with a neighbour 7 years before the child was born. The “father” became increasingly suspicious until he conducted his own DNA test without the mother or child’s knowledge. He first sought to deal with the matter without litigation before bringing his application within a year.

The court allowed the application to proceed and referred to similar facts described in DRP & AJL [2004] FMCAfam 440 at 17:

“There was nothing, of which the applicant was aware, which would have led him to have any doubt as to the paternity of the child. It is not appropriate to suggest that the applicant ought to have taken any active steps to inquire of the mother as to the paternity of the child when the child was conceived in a matrimonial relationship where there was no suggestion of infidelity. Indeed, to make such enquiries would be offensive and destructive to the relationship that most married spouses enjoy. There is no conduct of the applicant, with respect to these issues, that should be the subject of criticism.”

If the court grants the declaration pursuant to section 107 CSAA, then the court may consider the recovery of any child support paid.

The relevant considerations for recovery pursuant to section 143 CSAA were examined in detail in DRP & AJL.

Section 143 CSAA requires that the order be “just and equitable for the purposes of adjusting, or giving effect to, the rights of the parties and of the child concerned”. In examining a range of decisions at 25 to 26 Riethmuller FM held:

The term `just and equitable’ cannot be interpreted to simply mean `unfettered individual opinion’ as this would not provide a sufficiently certain definition to allow for the discretion to be an exercise of judicial power: Cominos v Cominos [1972] HCA 54; (1972) 127 C.L.R. 588. As a result, the process of considering the issues arising under section 143 must be approached judicially, and the factors relevant to the exercise of the discretion in the particular case identified and applied….In determining the relevant factors under section 143 the features of the child support scheme and general law that relate to these issues should be considered to place section 143 in its broader context.

In discussing the “broader context” His Honour went on to examine the circumstances in which adoption or artificial conception procedures may give rise to liability under the CSAA, section 29 CSAA when the Registrar will presume paternity, maintenance liabilities of step parents pursuant to the FLA.[xvi] His Honour made the fair point it would not be just and equitable to require money to be repaid where a step parent liability may arise under the FLA.

There are a number of factors set out in section 143(3) CSAA that apply to the court ordering money paid to be refund after a declaration is made under section 107 CSAA. With respect to these factors, His Honour noted prima facie the applicant had an entitlement to a refund and the list of factors at section 143(3) CSAA we not limited.[xvii]

In most cases however the following factors will generally be relevant:

• The state of knowledge and conduct of the parties. It will be necessary to determine the state of knowledge of the payer at all relevant times (time of birth, during the relationship, at separation, and thereafter). The court will also consider whether a reasonable person would doubt being the father and any acquiescence or delay;
• The relationship of the payer with the child. Of particular relevance must be the extent to which the payer has taken on the role of a parent and provider for the child.
• Evidence as to the circumstances of the biological father. The biological father’s relationship with the child and capacity to provide support.
• The financial circumstances of the parties. This will be particularly important when the repayment will place a burden upon the mother that will cause a significant detriment to the standard of living of the child. In many cases it will also be relevant that the mother has received an adjustment in her favour pursuant to section 75(2) FLA in the property settlement on the basis that the child is a biological child of the payer.

There are a number of interim orders and directions that can be made prior to the final declaration. These are important with respect to the evidence necessary to obtain the declaration and protect the financial position of the applicant.

Interim orders/direction that can be sought are:

• A stay of payments of child support;
• That necessary “DNA” parentage testing is performed.

The power to order a stay is contained within section 111C Child Support (Registration and Collection) Act 1988 (“CSRCA”). Section 111C(3) provides, “The court may make such orders as the court considers appropriate staying … if the court considers that it is desirable to do so, taking into account the interests of the persons who may be affected by the outcome of the proceeding.”

In Ahern & Ahern & Anor (SSAT Appeal) [2012] FMCAfam 1299 (23 November 2012) the court said at 22 to 25:

In order to show an arguable case, a party does not need to demonstrate that he or she has a strong case, let alone one that is bound to succeed…Whilst the claim does not appear to be overwhelmingly persuasive; it is far from a hopeless case. Thus, I am satisfied that the Applicant has shown that he has an arguable case, a serious question to be tried on appeal.

The court went on to consider any hardship from the point of view of both parties.

In Penman & Child Support Registrar & Anor (No3) [2013] FCCA 1124 (13 August 2013) the court at 15 set out in detail what should be taken into account in deciding whether to grant a stay:

• “The onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
• A person who has obtained a judgment is entitled to the benefit of that judgment;
• A person who has obtained a judgment is entitled to presume the judgment is correct;
• The mere filing of an appeal is insufficient to grant a stay;
• The bona fides of the applicant;
• A stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;
• A weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
• Some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
• The period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time.”

If parentage is an issue in the proceeding the court can order that parentage testing be performed (i.e. DNA testing).

The necessity for there to be “an issue” was recently examined again in the decision of Whitley & Ingham [2013] FCCA 869(22 July 2013). In this case the court did not allow parentage testing to establish whether a deceased man could be added to a child’s birth certificate, and the man’s death certificate, affirming that parentage testing is not a “free standing power.”

Section 69W FLA provides that the court, a party or an ICL may apply for a parentage testing order. The people who can be tested are the child, the person known to be the mother or “any other person, if the court is of the opinion that…the information that could be obtained might assist in determining the parentage of the child.”

To obtain an order for parentage testing a threshold was applied in TNL & CYT (2005) FamCA 77 applied in F & Z [2005] FMCAfam 394 at 58 and described as two hurdles. Firstly, parentage must be relevant to the nature of the proceedings and secondly, there must be evidence that places parentage in doubt.

With respect to the second “hurdle”, the Full Court in TNL & CYT approved earlier decisions that the applicant must have an “honest, bona fide and reasonable belief as to the doubt.”

The court in F & Z went on to describe the parentage presumptions contained within the FLA as the default position. Where an applicant with an honest, bona fide and reasonable doubt leads even relatively weak evidence to rebut the presumption, the order for testing should be granted.

In Tryon & Clutterbuck [2007] FamCA 580 (4 May 2007) it was confirmed an order pursuant to section 69W is a parenting order and as such the best interests of the child is the paramount consideration[xviii]and the matters in section 60CC in so far as they are relevant should be considered.

In circumstances where a person refuses to submit to a parentage test, the court may draw an inference from the failure to comply.

In Levine the mother failed to comply with an order for testing and the court drawing an inference from her failure, combined with the earlier test conducted by the father, made a finding the applicant was not the father.

In Nandi & Listberg [2013] FamCA 419 (6 June 2013) the father refused to comply with an order for testing and a parentage presumption was therefore not rebutted.

If you are preparing an affidavit for this type of application, in my opinion the following checklist should be applied:

• Set out the back ground facts and any evidence that raises doubt as to paternity;
• If doubt as to paternity is in the mind of the applicant, set out any facts leading to the “honest, bona fide and reasonable belief as to the doubt.”
•  If there is any delay in bringing the application, explain why the delay has occurred;
• If a stay is sought, greater detail with respect to the 3 points above will assist in establishing an arguable case. Also, ensure the financial statement is completed in detail with documentary evidence where available to establish any “hardship”. Address what the other party may say with respect to hardship in the affidavit;
• Do some research as to who is available to provide appropriate testing and have a panel with estimated costs set out in the affidavit;
• In anticipation of the application being successful, and recovery of child support is sought, set out evidence in relation to state of knowledge and conduct of the parties, the circumstances of the applicant’s relationship with the child (whether there will be future contact, is the biological father known and likely to provide support, the financial circumstances of the parties and in particular the mother’s capacity to repay;
• Be mindful to include any justice and equity circumstances why the funds should be repaid considering any other factors present.

As stated above, there is no doubt these types of matters can be some of the most heart wrenching that litigants and children can be involved in.

As well as good family law advice, an open mind can also be important for litigants.

In Levine the putative father rejected the child after the parentage test. The court noted at 77 to 79 in the context of examining the relationship between the applicant and child under section 143 CSAA:

The evidence suggests that this child is still unaware that the Applicant is not his father. For him, this has been an unfortunate situation not of his own making. In January 2009, the parties separated and the person whom the child thought was his father moved out of the matrimonial home. Less than a year and a half later, the child’s father figure no longer has anything to do with him. Effectively, he is now without a father, through no fault of his own.

From the child’s point of view, his father (as he thought) has rejected him, for no apparent reason. The Applicant’s desire to find out the truth about the child’s paternity will result in a financial benefit to him, at the expense of “collateral damage” to the child.

One might well ask why, if [X] does not know about the result of the paternity test, the Applicant should not continue to give this child the benefit of his time, support and encouragement. An adult can still have a loving, nurturing relationship with a child even if the adult is not the child’s biological parent. Australian society is full of people who have loving relationships with their step-children or adopted children.