“I am not sure I am the father and I am paying child support” – What are my rights?

There are occasions where a person is assessed by the Child Support Agency (CSA) to pay child support in circumstances where they are not sure they are the father of the child. The CSA will only make an assessment for a person to pay child support if they are satisfied that they are the parent of the child. The CSA is able to satisfy themselves of this if there is a presumption of parentage.

Under the Family Law Act 1975 there is a presumption that you are the father of a child if any of the following apply:-

You and the mother were married when the child was born.

  1. You and the mother were living together in the period beginning not earlier than 44 weeks and not ending less that 20 weeks before the birth of the child;
  2. Your name is on the child’s Birth Certificate.
  3. A Court has made a finding that you are the parent of the child.
  4. You have executed an instrument acknowledging you are the father of the child.

The CSA can further accept a child support application where a person is a parent under the Family Law Act 1975,such as where the child was born as a result of artificial conception, surrogacy or to recognised same-sex couples or where a person has adopted the child.

If you believe that the CSA has made a mistake as none of the above apply you can object to the assessment. There are strict timeframes that apply for parties to lodge their objection.

Alternately you may be able to agree with the mother independently to undergo DNA testing so that you can satisfy yourselves that you are or you are not the father. However you need to be aware that DNA test results are not binding on the CSA and your obligation to pay child support will only end if the mother agrees for it to end or there is a declaration made pursuant to Order 107 of the Child Support (Assessment) Act 1989 that a person should not be assessed in respect of the costs of the child because they are not a parent of the child.

In the event that you are unable to lodge an objection to the CSA as one of the criteria apply or your objection has been otherwise been refused, you can make an Application to the Federal Circuit Court of Australia or the Family Court of Australia and seek a declaration pursuant to Order 107 of the Child Support (Assessment) Act 1989 that you are not assessed to pay child support as you are not a parent of the child. When you make the Application to the Court you can seek an Order that you, the mother and the child undergo DNA testing.

If you require assistance in objecting to a child support assessment or making an application to the Court for a declaration to end your child support liability, please contact one of our experienced Gold Coast Family Lawyers today by phoning (07) 5591 5099.

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