Go to content

Taking action to dispute paternity

CHILD SUPPORT FACT SHEET 2

If you are assessed to pay child support for a child, but don’t think you are the father, you may be able to take legal action to resolve the issue. The Child Support Service of Legal Aid NSW can give you advice about this. This Fact Sheet explains the steps you can take. If you are unsure about any of these steps, please contact us to make an appointment.

Why am I paying child support?

The Department of Human Services: Child Support (“Child Support”) must be satisfied that you are the father of the child before it can make a child support assessment. Child Support can only be satisfied that you are the father if at least one of the following applies:

  • your name is on the child’s birth certificate
  • you have sworn a statutory declaration that you are the father of the child
  • you were married to the mother at the time the child was born
  • you were living with the mother when the child was conceived
  • you have adopted the child
  • a court has made an order that you are the father of the child

If the Child Support is satisfied you are the father of the child, it will accept an application for child support made by the mother.

Can I object to the CSA’s decision?

In most circumstances, you cannot object to the decision to accept an application for child support just because you believe are not the father of the child. In that case, you can apply to a court for an order that the mother is not entitled to a child support assessment because you are not a parent of the child, and in some cases, a further order that the mother repay some or all of the child support paid.

How do I apply to court?

Child support matters are generally started in the Federal Circuit Court, although some matters may be dealt with in the Local Court. You may choose to use a private solicitor or you can make an application to court yourself. In either case, you should file your application as soon as possible after receiving an assessment letter from Child Support. The time limit is that you must apply within 56 days of when you get the letter.

STEP 1 | DOCUMENTS TO PREPARE

You will need to prepare the following documents:

  • An Initiating Application
  • An Affidavit in support of your application

You can download these forms from
www.familylawcourts.gov.au
or you can call the Court on 1300 352 000 and they will post the forms to you.

In the Initiating Application you should ask the Court to make the following final order:



A declaration pursuant to section 107 of the Child Support (Assessment) Act 1989 that [YOUR NAME] should not be assessed in relation to the costs of the child [NAME OF CHILD] because [YOUR NAME] is not a parent of the child.If you intend to ask that the mother repay to you the child support you have already paid, you may ask the Court to make the following order:



That pursuant to section 143 of the Child Support (Assessment) Act 1989, [NAME OF MOTHER] repay the applicant the sum of [AMOUNT TO BE REPAID] within 28 days.



If your application is filed later than the time limits that apply for filing, you should also seek an order for an extension of time. In that case the order you should seek is as follows:



That pursuant to Regulation 3.05 of the Federal Circuit Court Rules 2001 the time for filing of this application for a declaration pursuant to Section 107 of the Child Support (Assessment) Act 1989 is extended to the date this application is filed.


You will probably also need to seek interim orders that you, the mother and the child take part in DNA parentage testing.

An affidavit is a written statement setting out the evidence to support your application in your own words. You should give a brief history of your relationship with the mother, and explain the reasons you believe you are not the father of the child. If your application is late and you are seeking an extension of time, you should also give reasons for the delay.

If you are seeking an order that the mother repay child support under section 143 you should also provide evidence to support this, including the amount of child support you have paid to date. The court must consider making this order if it makes a declaration under section 107, but has the discretion not to order repayment, or to order that only a certain amount be repaid.

More information about preparing an affidavit is available on the Family Court’s website:
www.familylawcourts.gov.au

If you are applying for an order that the mother repay child suh3pport, or for a stay order (see below) you will also need to file a completed Financial Statement.

STEP 2 | FILING DOCUMENTS

You then need to file your documents at the Court. After you have your court documents witnessed you must take the original and three copies of the documents to the Court for filing. You are not required to pay a filing fee for child support matters. The court will give you a date to come to court and return three sealed (stamped) copies to you. You will need to serve the sealed copies on the other party and Child Support. The third copy is for you to keep.

STEP 3 | SERVICE OF DOCUMENTS

You will need to serve a sealed copy of the documents on the other party. You cannot do this yourself. You may choose to use a commercial process server to serve the Court documents. The person who serves the documents must complete an Affidavit of Service. More information about service is available on the Family Court’s website:
www.familylawcourts.gov.au

You can serve a copy of the documents on Child Support by taking them to a Child Support office or by mail, however, you should ask Child Support to provide an Acknowledgement of Service.

STEP 4 | THE FIRST COURT DATE

You must attend court on the first court date. You should take all your paperwork with you to court, including your proof that the other party has been served. On the first court date you can ask the Court to determine your interim application – that is for DNA parentage testing to take place and/or for child support payments to be stayed. The court will adjourn your matter for several months to allow the DNA testing to occur.

STEP 5 | DNA TESTING

You must use one of the laboratories authorised under the Family Law Regulations to conduct DNA parentage testing. DNA testing can be costly. The laboratory will arrange for samples to be taken from the child and both parents and then prepare a report that can be used as evidence in court.

STEP 6 | THE NEXT COURT DATE

When the DNA testing results are available the judicial officer will consider the report and can make appropriate final orders. When you receive the final orders from the Court, you should send a copy to Child Support. If the Court made a declaration that you are not the father, they should stop collecting child support from you. If the Court has also made an order that the mother repay money to you, you can ask Child Support to register this order and collect the money from the mother.

Can I stop paying child support in the meantime?

You can ask the Court to make a stay order. If the Court grants a stay order Child Support is prevented from collecting child support from you until the matter is decided on a final basis. However, if you are then found to be the child’s father, you will still have to pay all the child support that would have been payable during the stay period. (See Our Fact Sheet 4 for more information about stay orders).

Alternatively Child Support can hold any child support you pay on trust until the paternity matter is determined, so it is not paid to the mother. If you are then proved not to be the father, this money is repaid to you. You do not need a stay order for this. You just need to forward a sealed copy of your court application to Child Support. You can ask Child Support more about this by calling 131 272.

Can I get legal aid?

You may be able to get a grant of legal aid for legal action to question paternity. You will need to complete a legal aid application form and provide us with proof of your income and assets. If you are eligible then Legal Aid NSW will make the application to court on your behalf. Contact us for more information.


Child Support Service Legal Aid NSW

Level 5, 91 Phillip Street,
Parramatta NSW 2150

PO Box 165, Parramatta NSW 2124
Ph: (02)9633 9916
or Toll free(regional): 1800 451 784
Fax: (02) 9689 1082
Email: admin.css@legalaid.nsw.gov.au

This fact sheet provides basic information only and is not a substitute for legal advice. If you are likely to be involved in court proceedings or legal action, you should get advice from a lawyer. Lawyers can be obtained privately, through Legal Aid NSW or at Community Legal Centres. The Child Support Service of Legal Aid NSW may also be able to provide you with advice.

Order free brochures online at
www.legalaid.nsw.gov.au/publications
or email publications@legalaid.nsw.gov.au
or call 02 9219 5028.

August 2014