Not Father so sought to recover Child Support Paid & Costs

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The parties had been in an unhappy and unstable relationship which he ended.  The Mother did not respond well and told the Father she was in hospital after intentionally overdosing. The Father felt guilty and providing emotional support leading to sexual intercourse.  He believed that resulted in her pregnancy and they resumed their relationship until it ultimately failed.   

It was a short relationship.

The Father paid Child Support and made other financial contributions for the Child. The Father said he believed he was the Child’s Father and the Mother not only took no steps to make him think otherwise, but he said actively deceived him. 

The Mother said the Applicant Father knew he wasn’t the Father but went along with the deception to spare him the embarrassment and avoid upsetting the feelings of his family who did not know.

The Child was 2 yrs old when the Father sought a declaration as to parentage and repayment of the $4,142.73 he had paid in Child Support and legal costs. When the matter was heard, he was paying Child Support assessed at $719.00 per month. The Father earns $172,000 per year, owns his own house, has superannuation and he alleged the Mother was seeking financial advantage from him.

The Father had previously, when the Child was 16 months old, applied to the Court for a Parenting Order enabling him to spend time with the Child after the Mother had unilaterally ceased his time with the Child.

At about the same time as ceasing the Applicant’s time with the Child, she instructed a Lawyer to write to the Father about a de facto property settlement, but there was no mention of him not being the Father of the Child.

In her Response to the Father’s Parenting Application the Mother swore an Affidavit referring to the Child as a Child of the relationship, in other words, being the Father’s Child, but alleged the Father was unsuitable to spend time with the Child due to his temperament (alleging verbal & physical abuse) and drug abuse.

Interim Orders were made for the Father to have supervised time with the Child and undergo drug testing.  The parties were referred for a property conciliation conference and a family dispute resolution conference with a section 11F Family Report.

The Father said the Mother dropped a bombshell on him at the Family Conference, saying that he was not the biological father of the Child. Consequently an Order was made for DNA parentage testing which confirmed he was not the Child’s Father. He no longer wished to spend time with the Child since he was not the biological Father.

Section 143 of the Child Support (Assessment) Act 1989 gives the Court discretion to order repayment of child support where it is established there is no liability to pay Child Support. Under that section there are mandatory criteria:

  • whether the payee knew or suspected or should have reasonably known or suspcted that the payer was not the parent of the Child;
  • whether the payee or the payer engaged in conduct (by act or omission) that directly or indirectly resulted in having a Child Support Assessment made;
  • whether there was any delay by the payer applying for a declaration once they knew, or should reasonably have known, that they were not the parent of the Child;
  • the relationship between the payer and the Child;
  • the financial circumstances of the payee and the payer.

After DNA testing it was scientifically established the Applicant was not the Father of the Child.

Orders were made:

  • Declaring the Mother was not entitled to Child Support as the Applicant was not the Father of the Child;
  • That the Mother repay the amount of $4,142.73 to the Father;
  • That the Mother pay the Father’s costs fixed in the sum of $5,000.00.  




NOTE:  This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.  

 

Hallis & Fielder [2017] FCCA 2851 (28 November 2017)

Last Updated: 5 December 2017

FEDERAL CIRCUIT COURT OF AUSTRALIA

HALLIS & FIELDER

Catchwords:

CHILD SUPPORT – Application for declaration of parentage – applicant found not to be father of child aged 2 years – applicant wrongly registered as father of child – following separation respondent applied for administrative assessment of child support – applicant paid child support and made other financial contributions in respect of the child – applicant seeks repayment of child support – applicant asserts he believed he was child’s father and mother took no steps to disabuse him of this fact and in fact actively deceived him – mother asserts that applicant was aware he was not the child’s father and was a party to the deception to spare him embarrassment and avoid upsetting his family’ feelings – question of fact – standard of proof – mother disbelieved – matters to be considered in exercise of Court’s discretion under section 143 of the Child Support (Assessment) Act – just and equitable.

COSTS – Matters to be considered – financial circumstances of the parties – conduct of the parties – respondent wholly unsuccessful – costs awarded against her.

Legislation:

Family Law Act 1975 (Cth), ss.11F69W117

Child Support (Assessment) Act 1989 (Cth), ss.100107(1), 143

Federal Circuit Rules 2001, r. 21.02(3)

Evidence Act 1995 (Cth), s.140

Cases cited:

Fox v Percy [2003] HCA 22(2003) 214 CLR 118

Jones v Dunkel (1959) 101 CLR 298

Applicant:
MR HALLIS
Respondent:
MS FIELDER
File Number:
ADC 3300 of 2016
Judgment of:
Judge Brown
Hearing date:
6 September 2017
Date of Last Submission:
6 September 2017
Delivered at:
Adelaide
Delivered on:
28 November 2017

REPRESENTATION

Counsel for the Applicant:
Mr Charman
Solicitors for the Applicant:
Ian Charman & Associates
Counsel for the Respondent:
In person

ORDERS

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(1) Purusant to section 107 of the Child Support (Assessment) Act 1989 it is the declared the respondent Ms Fielder is not entitled to administrative assessment of child support because the applicant is not the father of the child X born (omitted) 2015.

(2) The respondent repay the amount of $4,142.73 to the applicant.

(3) The respondent pay the applicant’s costs fixed in the sum of $5,000.00.

(4) All extant applications be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Hallis & Fielder is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT 

OF AUSTRALIA 

AT ADELAIDE

ADC 3300 of 2016

MR HALLIS

Applicant

And

MS FIELDER

Respondent

REASONS FOR JUDGMENT

Introduction

  1. These proceedings relate to an application to recover a comparatively modest sum of money – $4,142.73 – pursuant to the provisions of section 143 of the Child Support (Assessment) Act 1989.
  2. However, for each of the parties concerned, the proceedings have a more poignant and emblematic significance than the money alone. The section in question allows the recovery of child support, in circumstances when it is established no liability exists to pay child support in the first place.
  3. Pursuant to the section, the court has a discretion to order repayment of such child support. The discretion is subject to the application of mandatory criteria. These proceedings are addressed to the exercise of this discretion and the considerations relating to it.

Background

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  1. The applicant in the proceedings is Mr Hallis. The respondent is Ms Fielder. It has been established, beyond any shadow of scientific doubt, that Mr Hallis is not the father of Ms Fielder’s child X, born (omitted) 2015. On (omitted) 2016, X and a person identified only as Mr L underwent a parentage test procedure, which established that Mr L was X’s father.
  2. It is Mr Hallis’ position that this information came as a shocking revelation to him, as previously Ms Fielder had led him to believe he was X’s father. As a consequence of this belief, he paid child support to Ms Fielder.
  3. On the other hand, Ms Fielder contends that, although members of Mr Hallis’ family were led to believe he was X’s father, both she and Mr Hallis knew that this was not the case. However, in order to avoid embarrassment, Mr Hallis did not disclose the true state of affairs to either his parents or the world at large.
  4. In these circumstances, Mr Hallis seeks the repayment of the sum of child support advanced by him to Ms Fielder, together with the costs incurred by him in instituting these proceedings, and others, which preceded it. He would categorise Ms Fielder as a disingenuous and manipulative person, whose conduct should attract the condemnation of the court.
  5. On the other hand, Ms Fielder portrays herself as the victim of Mr Hallis’ aggressive and intimidating behaviour. She asserts that Mr Hallis compelled her to maintain a deception about the circumstances surrounding X’s conception because it suited him and she was too frightened to resist him, although she knew it was wrong to do so. In these circumstances, she asserts that it would be unfair of the court to direct her to repay any sum of child support, which in any event, she cannot afford to do.
  6. These proceedings are directed to resolve this sensitive and emotionally laden dispute between the parties.

The legal provisions applicable

  1. Section 143(1) of the Child Support (Assessment) Act (“the Act”) provides as follows:

“(1) If:

 

(a) an amount of child support is paid by a person (the payer) to another person (the payee); and

(b) the payer is not liable, or subsequently becomes not liable, to pay the amount to the payee;

the amount may be recovered from the payee in a court having jurisdiction under this Act.”

  1. Section 107(1) of the Act provides a mechanism for the court to issue a declaration following the acceptance, by the Child Support Registrar of an application for child support assessment, if the court is satisfied that the relevant applicant should not be the subject of such an assessment.
  2. In this case, there is no controversy that Ms Fielder applied for such an assessment in respect of X from Mr Hallis. Pursuant to the relevant assessment, Mr Hallis paid Ms Fielder the sum of $4,142.73. He seeks the repayment of this sum.
  3. As a consequence of the parentage testing undertaken in respect of X, there is no dispute that Mr Hallis is not legally liable to pay child support to Ms Fielder in respect of X. As such, I am satisfied that I can make a declaration, pursuant to section 107(1) of the Act that Mr Hallis is a person who should not be assessed in respect of the costs of X because he is not a parent of her. I will formally make such a declaration.
  4. Pursuant to section 143(3), the court is directed to make any such order, in respect of the power to order repayment, where no liability exists, as it considers just and equitable for the purposes of adjusting, or giving effect to, the rights of the parties and of the child concerned.

Section 143(3A) deals with the mechanics of repayment, when moneys have been paid, by way of child support, and a declaration has been made pursuant to section 107. In these circumstances, the court if it is considering repayment, must have regard to the following matters, set out in subsection 3B, namely:

“(3B) For the purposes of subsection (3A), the court must have regard to the following matters:

(a) whether the payee or the payer knew or suspected, or should reasonably have known or suspected, that the payer was not a parent of the child;

(b) whether the payee or the payer engaged in any conduct (by act or omission) that directly or indirectly resulted in the application for administrative assessment of child support for the child being accepted by the Registrar;

(c) whether there was any delay by the payer in applying under section 107 for a declaration once he or she knew, or should reasonably have known, that he or she was not a parent of the child;

(d) whether there is any other child support that is, or may become, payable to the payee for the child by the person who is a parent of the child;

(e) the relationship between the payer and the child;

(f) the financial circumstances of the payee and the payer.”

  1. As the brief introduction shows, the parties have diametrically opposing views regarding their level of knowledge of the true circumstances of X’s conception. Necessarily, in order to resolve the dispute between them, it will be necessary for the court to make findings about the credibility of Mr Hallis, on the one hand and Ms Fielder, on the other.
  2. The matter proceeded to a brief hearing, on 6 September, 2017, during which both parties gave evidence and were cross-examined. In addition, both Mr Hallis and Ms Fielder had earlier prepared a number of detailed affidavits in which each set out their individual perspectives on the nature of the relationship between them.
  3. In this regard, Mr Hallis was at a significant advantage, as he has been represented throughout these proceedings by his experienced solicitor, Mr Charman. On the other hand, Ms Fielder has represented herself and prepared her own documents, although at an earlier stage, she was represented. In the current proceedings, Ms Fielder has cast some aspersions on the integrity of the advice, which she was given, at this earlier stage.
  4. In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observation of the demeanour of each of the witnesses concerned.[1] I have tried to reach my conclusions on credibility and reliability on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[2]
  5. In addition, I bear in mind section 140(2) of the Evidence Actwhich indicates that in applying this standard of proof, I am entitled to consider the nature of the subject-matter of the proceedings and the gravity of the matters alleged.

The Evidence

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      1. Mr Hallis commenced proceedings, in this court, on 31 August 2016 seeking orders that X live with Ms Fielder and he spend time with her at specified times. He sought the urgent hearing of his application. In his supporting affidavit, he referred to X as “my daughter”. At the time of his application, X was almost sixteen months of age.
      2. In support of his application, Mr Hallis deposed that he and Ms Fielder had begun living together in mid-2013 and separated on 26 April 2014. Thereafter, they had remained in contact with one another, whilst working on a reconciliation, which led to a resumption of cohabitation between (omitted) 2014 and (omitted) 2015.
      3. The clear import of Mr Hallis’ affidavit is that he assumed X was conceived during this latter period of cohabitation and he was X’s father. In later material, he indicated that he and Ms Fielder had spent the night together in early (omitted) 2014 and he assumed that this was the date around which X had been conceived. It is his case that it is only recently Ms Fielder suggested to him that he was not X’s father and the fact of Ms Fielder’s pregnancy was the operative factor which led to the resumption of the relationship, at least from his perspective.
      4. In this context, he asserted that he had been integrally involved in providing care for X, particularly when Ms Fielder had returned to the paid workforce, when X was approximately seven months old. It is his position that he and Ms Fielder had arranged their respective employment commitments so that X could be cared for by one of her parents rather than child care.
      5. The reason Mr Hallis gave for initiating the proceedings, in August of 2016, was that Ms Fielder had unilaterally ceased his time with X, without any grounds to do so. From his perspective, this action had coincided with her instructing a solicitor to write to him to seek a settlement of de facto property issues with him. Mr Hallis denied posing any emotional or physical threat to X’s welfare. In these circumstances, he sought formal orders, from the court, to allow him to spend time regularly with X.
      6. Ms Fielder responded to this application on 12 October 2016. Her response was prepared by her then solicitor, Ms DMs DePizzol, who had earlier forwarded the letter to Mr Hallis, in which the issue of matrimonial property had been raised.
      7. In her response, Ms Fielder sought an order that the parties have shared parental responsibility for X, but the child live with her mother and spend time with the father (by necessary implication Mr Hallis) at times to be agreed between the parties, but subject to Mr Hallis satisfying drug screen testing procedures. In addition, Ms Fielder sought an order that the assets of the relationship be divided 70/30 percent in Mr Hallis’ favour.
      8. She did not specifically raise any issue regarding the possibility that Mr Hallis was not X’s father. In her later submissions to the court she alleged that she had instructed Ms DMs DePizzol of this state of affairs but Ms DMs DePizzol did not include this issue in the affidavit prepared on her behalf for reasons which were not altogether clear. However, regardless of this assertion, which seems improbable, the fact remains that Ms Fielder elected to depose an affidavit which, if her evidence is now accepted, she knew to be materially erroneous. This seems unlikely.
      9. In her affidavit, deposed in support of her response, Ms Fielder deposed as follows:
        “There is one child of the relationship, namely X born (omitted) 2015 who is currently 17 months of age.[3]
      10. Otherwise, Ms Fielder’s affidavit is a litany of criticisms of Mr Hallis’ capacity and level of insight as a parent. She characterised Mr Hallis as a violent person, who had been consistently verbally and physically abusive towards her and, as such, posed a significant threat to X’s wellbeing.
      11. However, notwithstanding these significant criticisms of Mr Hallis, the only rational conclusion which can be drawn from Ms Fielder’s affidavit, is that she was asserting Mr Hallis was X’s father, albeit one who was significantly compromised by reason of personal temperament and substance abuse.
      12. Ms Fielder conceded that she and Mr Hallis had commenced a relationship in mid-2013, when she had moved into a property in (omitted), owned by Mr Hallis. In this context, she asserted that she had made significant direct and indirect financial contributions to the acquisition of this property during the parties’ relationship as well as a parent and homemaker.
      13. The first return date of Mr Hallis’ application was 17 October 2016. On this occasion, he was represented by his current solicitor, Mr Charman; whilst Ms Fielder was represented by her former solicitor, Ms DMs DePizzol. On this occasion, the parties agreed that Mr Hallis should have supervised time with X, subject to a variety of conditions relating to drug abstinence and screening.
      14. In addition, the parties were referred to a property conciliation conference and to a family dispute resolution conference pursuant to section 11F of the Family Law Act 1975, which authorises the court to obtain advice from a family consultant about the nature of the parenting dispute, between the parties concerned, following a consultation with them. In a formal sense, Ms Fielder made no reference to the possibility that Mr Hallis was not likely to be X’s father.
      15. Prior to the family dispute conference taking place, Mr Hallis filed further affidavit material, in which he strenuously denied having subjected either Ms Fielder or X to any form of family violence. Rather he reiterated his wish to spend as much time as possible with X because of his relationship with her.
      16. From my perspective, following the initial directions herein, the matter was a difficult parenting application centring on issues of family violence which were vehemently denied, and as such, incapable of being definitively resolved at the interim hearing stage.
      17. Mr Hallis was pressing to spend more time with X, particularly over the forthcoming Christmas holiday period. On the other hand, Ms Fielder was resistant to Mr Hallis having any further time with X, other than for periods of up to 3 hours at a time, which were subject to independent supervision.
      18. The date scheduled for the family dispute conference was 19 December 2016. Given the imminence of Christmas and its importance for Mr Hallis, particularly in terms of him being able to spend a portion of it with X, I arranged for the matter to return to court as expeditiously as possible, on 22 December 2016.
      19. It is customary practice for the family consultant to provide a memorandum of advice to the court following each such family dispute conference. Part of the memorandum is a summary of the issues in dispute between the parties concerned. Under this heading Family Consultant Ms C wrote as follows:
        “Parenting arrangements for X. The father seeks longer visits with X commensurate with his 9-day a fortnight rotating work commitments including half Christmas Day and full days on his rostered days off. The mother does not support X having a relationship with the father due to his ongoing verbal abuse and threatening behaviours. She reports that she is “terrified” of the father which has caused her not to tell him that he is not X’s biological father.”[4]
      20. It is Mr Hallis’ evidence, which I accept that the information conveyed to him, by Ms Fielder, at the conference, that he was not X’s biological father was a metaphorical bombshell for him, for which he was emotionally unprepared. In this context, it is interesting to note that Ms C has indicated that Ms Fielder informed her (Ms C) that she had not previously told Mr Hallis he was X’s father because she was terrified of him. This is not consistent with her more recent evidence to the court.
      21. On 22 December 2016, a formal order was made pursuant to section 69W of the Family Law Act 1975 that the parties and X undergo an authorised parentage testing procedure according to the applicable regulations. This test confirmed that Mr Hallis is not X’s father. In addition, all orders for Mr Hallis to spend time with X were suspended.
  1. Ms Fielder deposed an affidavit on 19 December 2016, in which she set out her account of the circumstances surrounding X’s conception. She deposed as follows:
    “I say that the Father is not the biological father of X. I say that I conceived X with a man named Mr L in (omitted) 2014 when the Father and I were separated.

The Father was aware that X was not his biological daughter. I told the Father in (omitted) 2014 that I was pregnant and X wasn’t his biological child when my Mother was present.

I say that during our relationship when the Father and I would argue he would ask me “I am X’s father?” If I responded with ‘No’ I was physically abused. From then on I just agreed with the Father that he was the Father because I was frightened for my safety.

I say that I was extremely frightened to put into my court documents that the Father was not the biological Father of X because of the physical and verbal abuse I have suffered previously.

Following the last court hearing I contacted X’s biological father, Mr L who agreed to undergo a paternity test.”[5]

  1. Mr Hallis disputes that he was ever present when a conversation occurred involving Ms Fielder, her mother and him regarding X’s paternity. In this context, it is to be noted that Ms Fielder has not filed an affidavit from her mother or called her to give evidence in cross-examination,
  2. Ms Fielder indicated that her mother was not able to attend court because “she had to work”. In my view, this is not a reasonable explanation for Ms Fielder not to have called her mother to provide possible corroboration of an important aspect of her case. In these circumstances, I am satisfied that an inference is open to the court that the evidence of the witness in question would not have assisted Ms Fielder’s case.[6]
  3. It is Mr Hallis’ evidence that Ms Fielder has a reactive and manipulative personality. It was these issues that led to the parties separating between late April and early December 2014. During this period, Mr Hallis alleges that Ms Fielder claimed to have attempted suicide by ingesting Panadol, in an attempt to persuade him to return to the relationship.
  4. In particular, on 5 September 2015, Mr Hallis deposes that Ms Fielder sent a photograph of her wrist, with a hospital admission tag on it, via text message, indicating that she was in hospital due to an overdose of Panadol. Thereafter, the two spent the night together after the mother’s release.
  5. Mr Hallis asserts that he went to provide comfort to the mother, in part because he felt guilty that she had apparently become emotionally distraught at the end of the parties’ relationship. It is on this occasion that initially Mr Hallis believed that X was conceived. He has provided text messages, sent to his mother the following day, which confirm that he and Ms Fielder spent the night together around this period.[7]
  6. I accept Mr Hallis’ evidence that Ms Fielder did not inform him that she had had sexual intercourse with the person known as Mr L in the period around this time. If she had done so, it seems to me to be highly improbable that Mr Hallis would have elected to resume his relationship with Ms Fielder later that year.
  7. On the other hand, it seems much more probable that he decided to give the relationship another gobecause he was excited and delighted at the apparent prospect that he was about to become a parent, given that Ms Fielder’s pregnancy would have been capable of medical confirmation in (omitted) 2015, which the parties agree was the date on which they moved in together once again at Mr Hallis’ home.
  8. X’s birth was registered on (omitted) 2015. Mr Hallis is registered as the child’s father on the resulting birth certificate. The informants of the birth are recorded as being Ms Fielder and Mr Hallis, who are recorded as living at the same address.[8] The registration of the birth of a child born in South Australia is governed by the provisions of the Births, Deaths & Marriages Act 1996 (South Australia).
  9. The onus is on both a child’s parents to register the birth of the child concerned, unless it is impossible, impracticable or inappropriate for both to do so. It is an offence for any person to make a false or misleading representation in respect of the application of a child’s birth certificate. In my view, it is improbable that Mr Hallis would have knowingly been a party to an application for a birth certificate, in respect of X, which he knew to be materially false.
  10. In these circumstances, I reject Ms Fielder’s evidence that she had informed Mr Hallis during her pregnancy that he was not the child’s father and he had gone along with this subterfuge in order to spare himself personal embarrassment and avoid disappointing his parents, whom I accept were delighted at the prospect of becoming grandparents.
  11. Mr Hallis’ case can be easily summarised. He and Ms Fielder were in an unhappy and unstable relationship between (omitted) 2013 and (omitted) 2014. He chose to end the relationship. Ms Fielder did not respond well to this decision and as a consequence indicated to him, in early September, that she had been hospitalised due to an overdose.
  12. Mr Hallis felt guilty about what had occurred and went to provide emotional support to Ms Fielder. On the weekend of (omitted) 2015, in these heightened emotional circumstances, the two had sexual intercourse, which Ms Fielder led him to believe had resulted in the conception of X. Unbeknown to Mr Hallis, also around about this time, Ms Fielder had had sexual intercourse with Mr L, a circumstance which she preferred to conceal from Mr Hallis, for obvious reasons.
  13. In my view, this version of events is, on balance, the one more likely to be correct. It seems to me to be improbable that Mr Hallis would have decided to attempt a reconciliation with Ms Fielder, which crystallised in (omitted) 2015, if he did not believe that he was the father of Ms Fielder’s then unborn child.
  14. As such, I reject Ms Fielder’s contention that she and Mr Hallis decided to deceive members of Mr Hallis’ family to spare their feelings or that Ms Fielder was coerced into maintaining this lie through a concerted campaign of family violence against her. In my estimation, Ms Fielder is not a person who is likely to be readily amenable to any such coercion. She did not present in court as a person whose will was easily overborne.
  15. Clearly, the parties did not have a particularly stable base on which to re-establish their relationship. In these circumstances, it is not surprising that the relationship failed again. However, prior to the parties’ final breakdown, Ms Fielder sent Mr Hallis a number of affectionate and personal text messages concerning X.[9]The unmistakable import of these messages is that Ms Fielder was Mr Hallis’ progeny because of what she perceived to be physical and behavioural similarities between the two.
  16. In addition, it is the evidence of Ms J, Mr Hallis’ mother that she received affectionate correspondence, from Ms Fielder, after X’s birth, in which she is referred to as Grandma. In addition, she deposes that she had a number of conversations with Ms Fielder’s mother, who never suggested anything other than the two women were X’s grandmothers.
  17. Following the parties’ final separation, I accept Mr Hallis’ evidence that he provided informal financial support to Ms Fielder, which she accepted without demur. As I indicated to the parties, during the course of the hearing before me, I am not authorised to make any determination in respect of the repayment of these moneys as my jurisdiction is limited to that provided by the Child Support (Assessment) Act.
  18. After the parties finally separated, Ms Fielder made application to the Child Support Registrar for a formal assessment of child support to be paid to her by Mr Hallis in respect of X. In so doing, it would have been necessary for her to identify Mr Hallis as X’s biological father. If her evidence is to be accepted, she made this application knowing it was materially false.
  19. It is Ms Fielder’s evidence that during the parties’ relationship, she was in constant fear of Mr Hallis’ violent and controlling behaviour towards her. She asserts that, in these difficult circumstances, she went along with Mr Hallis’ lie to his parents and family regarding the paternity of X because of her fear of Mr Hallis.
  20. I appreciate that family violence is insidious in its nature and very often occurs behind closed doors, within a domestic situation, which makes its independent verification problematic. However, the fact remains that, in the current matter, apart from her assertions of family violence, Ms Fielder is not in a position to provide any independent evidence to support her characterisation of the relationship between her and Mr Hallis. In addition, this evidence does not sit comfortably with her personal text messages to Mr Hallis, particularly the one in which she draws similarities between X’s “chubby cheeks” and those of Mr Hallis.
  21. In particular, I reject Ms Fielder’s evidence that, after the parties separated, Mr Hallis, whilst knowing he was not X’s father, “aggressively insisted on paying support for X” on the basis that he considered himself to be the child’s “acting father” and Ms Fielder felt that she had no other option but to accept the money because of her fear of Mr Hallis.[10] At best, this appears to be some form of rationalisation of Ms Fielder’s behaviour or at worst, an outright falsehood.
  22. It is also inconsistent with Ms Fielder’s own behaviour. In September of 2016, she sent Mr Hallis two text messages in which she complained that Mr Hallis’ child support was short and he needed to rectify this situation or she would be compelled to take action with the Agency to enforce collection. This is not the actions of a person who was accepting child support under sufferance.
  23. In my view, it is also inconsistent with what Mr Hallis did as soon as he was formally advised, through the agency of these proceedings, that he was not the child’s father. Thereafter, he ceased his efforts to pursue a relationship with X and expressed a considerable level of distress regarding this situation. In my view, this distress was not feigned in any way.
  24. Ms Fielder’s evidence indicates that she is not in a strong financial position. She has no formal qualifications or work skills, having left school after Year 11. She has no other children apart from X. At present, she receives child support, from Mr L, for X at the rate of $719.00 per month.
  25. Ms Fielder is currently in receipt of social security and is likely to remain so for the next few years. She is not currently in a relationship with another person. She has a credit card debt of approximately $4,000.00.
  26. As previously indicated, Ms Fielder consulted solicitors shortly after the parties separated seeking a financial settlement of de facto property matters with Mr Hallis. Those proceedings have apparently been resolved. However, Ms Fielder has incurred legal fees, which remain outstanding, in an amount of approximately $16,000.00.
  27. Mr Hallis is employed as a (occupation omitted). He receives an annual salary of around $172,000.00. He owns his home, valued at $320,000.00, which is subject to a mortgage of $142,000.00. He has superannuation of around $120,000.00. It is his position that Ms Fielder’s motivation throughout these proceedings has been a cynical one based on financial advantage for herself.
  28. The parties attended a financial mediation conference on 20 March 2017. At this stage, given the fact that there was no longer any biological offspring from their relationship, issues arose as to whether there was in fact a de facto relationship between them of such a nature to support Ms Fielder’s claim for a settlement of property.
  29. In this context, Mr Hallis asserted that the relationship was one of less than two years. Ms Fielder asserted otherwise. Prudently, in the circumstances, the parties agreed not to subject this controversy to litigation and in consideration of the return of some items of property to her, Ms Fielder discontinued her application.

Consideration

  1. The Registrar accepted an application for administrative assessment of child support, for X, payable by Mr Hallis to Ms Fielder. The basis of this assessment was the assertion made by Ms Fielder, supported by X’s birth certificate, that Mr Hallis was X’s father. Indisputable scientific evidence has revealed that Mr Hallis is not X’s father. In these circumstances, a declaration must issue that Mr Hallis should not have been assessed in respect of child support costs relating to X.
  2. As a consequence of this declaration, the provisions of section 143 of the Child Support (Assessment) Act are engaged. In this context, I find that Mr Hallis has paid the sum of $4,142.73 in child support to Ms Fielder, in respect of X, which should not have been assessed. Given that Mr Hallis seeks the repayment of this sum, it is necessary for me to consider the six matters delineated in section 143(3B) of the Act, within the matrix of what is just and equitable overall.
  3. In particular, I find that Ms Fielder knew that Mr Hallis was not X’s parent and is likely to have known that well prior to the child’s birth. At the very least, in my view, she was under a moral obligation to inform Mr Hallis of the possibility that Mr L was X’s father rather than him. In my view, the evidence indicates that Ms Fielder elected to deceive Mr Hallis.
  4. I do not accept that the parties had any secret agreement between themselves to conceal from Mr Hallis’ family the real circumstances of X’s conception. In addition, I can find no evidence to support Ms Fielder’s assertion that she was coerced into maintaining the fiction because of Mr Hallis’ violence towards her. Rather, sad to say, I consider that she has raised allegations of family violence to protect herself from the implications of her own falsehoods. This is not to her credit.
  5. Given these findings, it is clear that Ms Fielder mislead not only Mr Hallis, but also the Registrar of the Child Support Agency when she applied for an administrative assessment in respect of X. It was only when Mr Hallis was pursuing his application to spend time with X that Ms Fielder decided to take steps to remove Mr Hallis from his position as the child’s father, recognised both by law and by him and his family. Thereafter, Mr Hallis wasted no time in applying for the necessary order under section 107 of the Act.
  6. This is a sad and perplexing case. Other than the unusual circumstances surrounding the issue of X’s paternity, it would also be a relatively common place one, of a type frequently coming before the court. The parties had a brief and unhappy relationship. A child was born. The purported father, in the face of significant opposition, seeks to maintain a relationship with the child concerned through expensive and emotionally fraught legal proceedings.
  7. The mother of the child concerned opposes such a relationship on the basis of allegations of family violence, which if true, would be highly concerning. The other party asserts that the allegations are essentially mischievous and fabricated, designed only to frustrate a much desired child/paternal relationship. Given the structure of the Family Law Act the court is duty bound to take such allegations seriously.
  8. Although such a scenario is relatively common place in the court’s family law jurisdiction, for obvious reasons, it creates an emotional maelstrom for the parties concerned. It is also a scenario which necessarily creates a complicated web of financial, as well as emotional obligations. Believing he was X’s father, Mr Hallis assumed both his emotional and financial obligations towards her. I am satisfied that he did so under a cruel misconception.
  9. As a consequence, his understandable aspirations to be a father for X have come crashing down. It is only to be expected that he would feel most harshly used and manipulated by Ms Fielder. To add insult to injury, she has accused him of behaving inappropriately towards him.
  10. In the absence of a biological relationship between him and X, Mr Hallis no longer wishes to pursue any relationship with the child, which in any event has been steadfastly resisted by the child’s mother. As such, it cannot be said that he has any moral obligation to support X or that some significant form of relationship has come into being between the two because of their previously shared household. To all intents and purposes, X is now a stranger to Mr Hallis and will remain so.
  11. I accept that Ms Fielder is not in a strong financial position. However, notwithstanding her straitened circumstances, I am of the view that an order should be made that she repay the child support erroneously paid to her by Mr Hallis. In my view, given the findings I have made about her conduct, it was be an affront to considerations of what is just and equitable, if such an order were not made.

Costs

      1. Pursuant to section 100 of the Child Support (Assessment) Act the Family Law Act 1975 and the Federal Circuit Rules 2001 apply to proceedings concerned with child support matters. The relevant provision of the Family Law Act, relating to costs, is section 117.
      2. Section 117(1), abolishes, for the purposes of Family Law Act proceedings the general rule that in civil proceedings costs follow the event. Section 117(2) then provides the court with a general discretion to make costs orders if it is of the opinion that there are circumstances that justify it in so doing. The court may make such order for costs as it “considers just”.
      3. Section 117(2)(A) sets out the matters that the court shall have regard to in exercising this discretion. They include the following: the financial circumstances of the parties concerned; the receipt of legal aid by the parties; the conduct of the parties to the proceedings; whether the proceedings were necessitated by the failure of a party to comply with previous court orders; whether one of the parties to the proceedings have been wholly unsuccessful in them; any offers to settle the proceedings; and any other relevant matter.
      4. The court has a wide discretion as to the calculation of costs. Pursuant to Rule 21.02(2) of the Federal Circuit Court Rules:
        “In making an order for costs in a proceeding the Court may:

(a) set the amount of costs; or

(b) set the method by which the costs be calculated; or

(c) refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or

(d) set a time for payment of costs which may be before the proceedings is concluded.”

  1. I acknowledge that it is likely to be extremely difficult for Ms Fielder to meet any order for costs made against her. She has not been in receipt of legal aid and as a consequence she has represented herself. Mr Hallis has funded his involvement in these proceedings.
  2. As I indicated, at the outset of these reasons for judgment, these proceedings have emblematic significance for him, as he believes that he has been grossly deceived and manipulated by Ms Fielder.
  3. In my view, given the highly unusual circumstances of this case, Ms Fielder’s conduct is a relevant consideration in the question of costs. In addition, she has been wholly unsuccessful in her opposition to the orders sought by Mr Hallis.
  4. In these circumstances, I have come to the conclusion that it is just that an order for costs be made against Ms Fielder. I propose awarding costs in the sum of $5,000.00 to Mr Hallis.
  5. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 28 November 2017


[1] See Evidence Act 1995 (Cth) at section 140

[2] See Fox v Percy [2003] HCA 22(2003) 214 CLR 118 at 129 [31] per Gleeson CJ, Gummow and Kirby JJ

[3] See Ms Fielder’s affidavit filed 12 October 2016 at paragraph 6

[4] See family dispute resolution conference memorandum dated 19 December 2016 at page 2

[5] See mother’s affidavit filed 20 December 2017 at paragraphs 23-27

[6] See Jones v Dunkel (1959) 101 CLR 298

[7] See exhibit A

[8] See annexure B

[9] See Mr Hallis’s affidavit filed 4 September 2017

[10] See Ms Fielder’s affidavit filed 27 July 2017 at paragraph 17

NOTE:  This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.  Section 121 of the Family Law Act 1975 makes it an offence, except in very limited circumstances, to publish or distribute a report of a case or part of a case, including information contained in a Judgment, which identifies parties, related or associated persons, witnesses or others involved in the case.  A breach of the section is a criminal offence.  The section also sets out certain limited defences to criminal liability.  An example is where the Court has expressly authorised the publication.  

A printable version can be accessed from Austlii without pictures or advertisements here, which should be used if you wish to provide the case to the Court in your matter.

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