Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
A Mother has been ordered to pay back $4,142.73 in child support as it was discovered that she had knowingly lied about the child’s parentage to the child’s ‘father.’
Mr Hallis sought repayment of the $4,142.73 in child support payments, as well as the legal costs incurred by him in previous and current legal proceedings against the Ms Fielder.
The issue in Hallis & Fielder  FCCA 2851 was whether the Federal Circuit Court’s would make an order under Section 143 of the Child Support (Assessment) Act to make orders directing one party to repay child support payments to another.
Pay Back Child Support
Mr Hallis and Ms Fielder were in an unhappy and unstable relationship and they separated.
On 5 September 2015, Mr Hallis said that Ms Fielder text messaged him a photograph of a hospital admission tag on her wrist indicating that she was hospitalised due to a Panadol overdose.
In response, Mr Hallis asserts that he went to the hospital to provide emotional support to Mr Fielder in part because he felt guilty as to her emotional distress at the relationship ending.
The weekend of heightened emotional circumstances led to Mr Hallis and Ms Fielder having sexual intercourse.
Mr Hallis believed this led to her pregnancy, and the pair resumed their relationship until its final breakdown a short while later.
Mr Hallis contends Ms Fielder did not inform him that during this time, she had also engaged in sexual intercourse with a man known as Mr L.
When the child was born in 2015, the birth certificate registered Mr Hallis as the father and Ms Fielder as the mother.
The first family law proceedings
When the child was approximately 16 months, the parties were referred to mediation after the mother ceased Mr Hallis’ time with the child.
At the mediation, Mr Hallis states the mother dropped a bombshell on him by saying he was not the biological father of the child.
In 2016, the child and Mr L took a DNA test which established that Mr L was the biological father of the child.
Mr Hallis said that this news came as a shock to him, as he had previously been led by Ms Fielder to believe he was the biological father.
It was due to this belief that he had been paying child support to Ms Fielder- calculated at $719 per month.
Ms Fielder’s insisted that both herself and Mr Hallis were aware that Mr Hallis was not the child’s biological father.
Ms Fielder claims that although she knew it was wrong to maintain the deception, she was too frightened to resist Mr Hallis.
Thus, she asserts it would not be just and equitable for the Court to order her to repay any sum of child support payments to Mr Hallis.
Under Section 143 of the Child Support (Assessment) Act 1989, the Court has the power to order re-payment of child-support to the payer where it is established the payer is not liable to pay the amount to the payee.
Mr Hallis is not legally liable to pay child support to Ms Fielder as he is not a parent of the child.
Thus, the Court made orders declaring that the mother was not entitled to Child Support from Mr Hallis and that she must repay the amount of $4142.73 to the him, as well as his legal costs at the fixed sum of $5000.
Reasons for the Decision
Judge Brown noted that the parties had drastically opposing views regarding their knowledge as to the true parentage of the child.
The Court had to make findings regarding the credibility of the parties’ positions.
The court considered evidence such as Mr Hallis referring to the child as ‘my daughter’ in his affidavit.
Furthermore, there was evidence of affectionate and personal text messages sent by Ms Fielder to Mr Hallis comparing perceived physical and behavioural similarities between Mr Hallis and the child – suggesting that the child was indeed Mr Hallis’ biological offspring.
Mr Hallis’ mother also received text messages which referred to her as ‘grandma’.
Ms Fielder’s evidence that Mr Hallis ‘aggressively insisted on paying child support for X’ and that she felt she had no choice but to accept was also at odds with her actions.
Specifically, this included text messages to Mr Hallis complaining his child support was short and if he did not rectify the situation, she would take action with the Agency to enforce collection.
Thus, on the basis of the evidence, Judge Brown surmised the logical sequence of events was Mr Hallis’ position, where he was blindsided by the news of X’s parentage.
This is compounded by his relative wealth and assets in comparison to Ms Fielder, of whom he believes she took financial advantage of with her ‘disingenuous and manipulative’ nature.
Impact of the Case
This case showcases that the Court has to power to order child support repayments to the payer in cases where the payer is not liable to provide it.