Unintended “backdating” of child support assessments

In Calafiore & Netia [2019] FamCAFC 132, the Full Court of the Family Court of Australia recently granted a father’s application to be allowed to file his Notice of Appeal out of time in relation to the “backdating” of a child support assessment to 2013.

Their Honours noted that despite the trial judge and a representative of the Child Support Agency (CSA) agreeing that the Court did not have the power to backdate child support assessments, it appeared that this was in effect, what flowed on from the Orders.

The Facts

The parties’ relationship commenced in or around January 2010. The mother fell pregnant in August 2012, informed the father in September 2012 and the father terminated the relationship in October 2012. The child was born in April 2013. The father was not recorded on the Birth Certificate.

On 2 May 2013, the mother made an application to the CSA seeking that the father be required to pay child support. The father informed the CSA that he was not the father. The CSA refused the mother’s application. The mother took no further action for more than four years.

On 12 September 2017 the mother filed an application in the Federal Circuit Court of Australia seeking:

  • a declaration of paternity;
  • an order that child support be payable from the child’s birth; and
  • a declaration pursuant to section 106A of the Child Support (Assessment) Act 1989 (Cth) (CSAA) – that the father should be assessed in respect of the costs of the child because he is a parent of the child.

After DNA testing, the father accepted he was a parent and the Court made the declaration under section 106A of the CSAA. While this did not involve the backdating of a new decision, the declaration caused the original decision of the CSA made in May 2013 to be corrected, effectively “backdating” the father’s obligation to pay child support, from May 2013 (when the initial application was properly made).

Due to the long delays involved in the case, the Full Court of the Family Court of Australia allowed the father to file his Notice of Appeal on the basis that the trial judge did not properly consider the prejudice caused to him by the mother’s delay. The proceedings were remitted for rehearing in the Federal Circuit Court of Australia.

The Law

When a proper child support assessment application is made and accepted pursuant to section 30 of the CSAA, the Registrar is required to inform the applicant of the outcome of the application as soon as possible.

If successful, an assessment is to be conducted for the days in the child support period. The beginning of the day on which an assessment application is made is the commencement of the “child support period”.

If the Registrar refuses the application on the grounds that the Registrar “was not satisfied under section 29 that a person who was to be assessed […] is a parent of the child”, the applicant may apply to the Court under section 106A of the CSAA seeking a declaration that the “person should be assessed in respect of the cost of the child because the person is a parent”.

If the Court grants that declaration, section 106A(6)(a) provides:

a.  If the reason referred to in paragraph (1)(b) was the only reason for the Registrar refusing the application – the Registrar is taken to have accepted the application for administrative assessment of child support. [Emphasis added]

Accordingly, where a declaration pursuant to section 106A of the CSAA is made, it has the potential to operate retrospectively, as it renders the payee liable for child support payment from the commencement of the “child support period”, being the day the application was properly made.

Lavan Comment

It is crucial to be aware of limitation periods in relation to appeals of decisions from both the Family Court and from the CSA (now Child Support, Department of Human Services) and act within the timeframe required, to avoid adverse orders being made.

It is also important to understand not only appeal rights, but alternative pathways and/or options to achieving desired outcomes. By way of example, in Calafiore & Netia:

  • In absence of a section 106A declaration, where an unchallenged declaration of paternity exists, it was and remains open to the mother to make an application for an administrative assessment for future child support payments.
  • Another avenue open to the father to object to such a declaration, apart from appeal, was to seek a departure order pursuant to s 98B of the CSAA within 18 months of the declaration, or with leave of the Court after 18 months but less than 7 years from the declaration.

It is important to seek early advice regarding your options and obligations to minimise delays and potential costs and/or adverse decisions associated with child support matters. Our Family Law Team is available to advise and assist in relation to such matters.