Family Law Court: Backdating Child Support Applications

Introduction

Child support is a payment made by one or both parents to the other to help with the cost of looking after the children. In some situations, it may be paid by one or both parents to another person who is looking after the children.
Parents can make agreements about child support or they can apply to the Department of Human Services (Child Support) for an administrative assessment.

Recent Case Law

There has been a recent development in case law following the child support case of Calafiore v Netia [2019] Fam CAFC 132 (2 August 2019).
 
The two parties gave birth to a child after separating from each other, however no paternity declaration was made at birth. A paternity declaration is a voluntarily signed document which establishes legal rights and responsibilities to the father. This provides the legal benefits and rights of being the father of the child. 
As a result, when the mother went to file an application for child support, it was rejected, as the father’s name had not been included on the birth certificate.
Four years after the application, a paternity test confirmed that the father was the parent of the child. The paternity was confirmed by the Court; however, the judge did not make the order for child support, deferring to the Child Support Agency to make the determination. 

Court Analysis

A point of discussion faced by the Court was the matter of backdating the payments from the date of the application.  The trial judge was of the opinion that they did not have the power to backdate child support assessments. In addition, the Child Support Agency representative agreed with the assessment. 

Despite this opinion, the Court declared that the original child support application should be corrected. The father was then expected to pay back child support since the date of the original application.  

The decision was appealed and ultimately the Court found that the outcome was correct. The Court declared that an application for child support can be approved retrospectively. This is in the specific circumstance where the application was denied on the grounds that the Registrar was not satisfied that the person to be assessed is a parent of the child.

Therefore, the father was made liable for child support from the date the application was made by the mother. 

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