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Paternity Rights And Challenging The Obligation To Pay Child Maintenance (Victoria)

Mothers and fathers have a duty to maintain their children even if they have never lived together.

This duty continues until the child reaches the age of 18, unless the child is able to support him or herself before that time, or marries, or is adopted.

The Commonwealth Government enforces the obligations of a parent to pay child maintenance in two ways.

First, a mother or father of a child can obtain orders under the Family Law Act requiring the other parent to make provision for child support as part of the overall property settlement.

Secondly, the Commonwealth Government has established the Child Support Scheme and the Child Support Agency. The Child Support Agency is given wide powers under the Child Support (Registration & Collection) Act 1988 (Cth.) and the Child Support (Assessment) Act 1989 (Cth.).

In relation to parties who separate after 1 October 1989, or have children born after 1 October 1989, the Agency makes an assessment of the child support payable and may collect payments if requested to do so. The Agency is given wide powers to obtain information about the income of parties from the Australian Taxation Office.

The way child support is calculated under the Child Support Scheme is as follows:

- The taxable income of the parent who does not have care of the children is assessed.

- An amount is deducted from that income for the living expenses of that parent and any natural or adopted children living with that parent.

- In some cases, part of the income of the parent with whom the children do live is taken into account, and this reduces the other parent's liability.

- Finally, a percentage of the first parent's remaining income is paid as support for the child or children involved. These percentages, after making all of the above deductions, are as follows:

* One Child 18% * Two Children 27% * Three Children 32% * Four Children 34% * Five or More Children 36%

The assessment lasts up to 15 months and will change if further information regarding the income of the parents is received.

The parent who is dissatisfied with the child support assessment can apply for changes of assessment but only if there are special circumstances. Those special circumstances relate to a claim that the original assessment is unfair because the children themselves have substantial assets, or the children are receiving substantial assets from a third party, that the parent's expenses for self support have increased substantially (e.g. because of a serious illness), or because the parent comes under a legal duty to support another person or other children.

A father can challenge the obligation to pay child support on the issue of paternity.

There are two ways of establishing paternity. The first is under the Family Law Act. The second is under the Status of Children Act 1974 (Vic.)

The Family Law Act establishes certain presumptions of parentage. Like all legal presumptions, they may be counteracted by proof to the contrary on the balance of probabilities.

In other words, the Family Law Act presumes that the man is the father of any child arising from the following:

- Marriage - Cohabitation (or the child being born within 20 weeks of the party separating) - Acknowledging paternity by an instrument such as a birth certificate

Under the Status of Children Act, there is a presumption of parentage in favour of the husband in relation to children born to a married woman and any children born up to 10 months after the marriage dissolves.

Alternatively, evidence of paternity can be established by the father allowing his name being entered in the Register of Births and on a birth certificate, or the father and mother jointly signing a statement in the presence of a solicitor stating that he is the father, or a Supreme Court declaration of paternity.

A father can deny paternity of any child. However, the father has a difficult onus of proof to discharge, particularly if the father has allowed his name to be entered in the Register of Births or on the birth certificate.

One method of disputing paternity is by way of a blood or genetic test. Such testing can now provide positive proof of paternity if a sophisticated form of testing is used. This is known as genetic tissue typing and in particular HLA (Human Leucocyte Antigen) testing.

There is provision for the Family Court under the Family Law Act or any Victorian Court under the Status of Children Act to order blood tests. However, the legislation is not mandatory. The mother can refuse to allow the child to be blood tested. However, in that circumstance, the appropriate Court is empowered to draw such inferences about the refusal to take the test as appear just.

The obligation to pay child support is lifted until the paternity issue is concluded. However, if the father loses, he will have to pay back-payments including interest.

If a father does have reasonable grounds for doubting paternity, then legal advice should be sought swiftly. The Child Support Agency has extensive powers of collection. These involve the garnishing of wages and the imposition of penalties on parents who make payments. The Agency is empowered to take enforcement proceedings to recover arrears of child support. The Child Support Agency can even prevent a parent who has a child support debt from leaving Australia in certain circumstances. The Agency issues a "departure prohibition order" which, quite literally, can require a parent to be taken from a plane immediately prior to take-off for overseas.

The issue of paternity has recently gained public prominence with the High Court of Australia decision in Magill v. Magill decided in 2006.

The issue related to whether a former husband, who for years had considered that he was the father of three children and had paid for their support, could recover damages from their mother when DNA testing showed that he was not in fact the father of two of the three children.

The High Court unanimously rejected Mr. Magill's appeal and decided that he had no ability to recover damages as a result of paternity fraud on the part of the mother of the children of another man. Various reasons were given by the five High Court Justices. Essentially, the High Court Justices decided that there was no legal obligation within a marriage for a wife to tell the truth to her husband. The tort of deceit and the law of false representations did not apply in the context of a marriage in relation to extra-marital sexual relationships or the issue of paternity.

Accordingly, fathers should take action sooner rather than later to dispute paternity if there are reasonable grounds for opposing any obligation to pay child support. It seems that Australian law will not allow a father to recover child support payments made before paternity was proved when the father wrongly believed that he was the father of children and had contributed to their support.

Michael Pickering is a solicitor employed at LAC Lawyers Melbourne http://www.laclawyers.com.au. He has nearly 20 years experience as a lawyer.

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