Paternity and when does child support start from?
In October 2008 my now husband had a 1 night stand during a brief separation with me. At the time I was around around 9 weeks pregnant.
Soon after reconciling my husband receives a phone call from the 1 night stand to say she was pregnant but did not intend on keeping the baby.
Flash forward to October 2009 hubby receives a letter from CSA regarding an application to collect child support for a child born in early July 2009 (around 8 weeks after our own child was born). He denied paternity and CSA sent a letter saying that the application was not approved because it did not meet their requirements.
Flashforward to March 2010 and 1 night stand contacts hubby and says she wants 'help as her child is starting to miss out and it is his responsibility as well'. My hubby is not listed as a father on this childs birth certificate (hence the reason the CSA requirements were not met). Hubby declined to offer any support and her response was that she would see him in court.
Flash forward to November 2010 and we receive another letter from CSA stating that they have again received an application to collect child support and it did not meet their requirements. A couple of weeks later a lawyer has contacted my hubby to request a paternity test on behalf of '1 night stand' so that (if proven) she can apply to CSA for child support to be collected (Child is now 16 months old).
Hubby has agreed to take a paternity test and my question is in relation to if he is proven to be the father of this child;
When will child support be calculated from?………from when the child was born? from when the first application to collect CS was received? or from when an application which meets the CSA requirements (and proves paternity) is received?
Can anyone also tell me how on earth I can begin to work out how much CSA will be collected from us if he is proven to be the father as he would then have two separate child support cases. The CSA and Centrelink website will dont provide estimates for child support when more than one case is involved. It is just something I would like to get an idea of now to prepare myself for the financial changes to our lives.
Hubby has a 10yo child from a previous relationship which he pays child support on. Hubby has a 18month old child with me, and we are expecting our 2nd child in June 2011…and now it appears he may be paying for another child aged 16months very soon. 16month old child lives in a different state and it does not seem that he will see that child at all.
I would truly appreciate any information/advice that can be offered.
I understand that you are hurt, but remember you decided to get back with your hubby so I guess you take on everything - even his faults, which it sounds like you are, but remember, it's not your fault and you shouldn't feel that it is, but you shouldn't be blaming anyone, it's just something that has happened and I'm sure that you and your hubby will work through it together.
All the best!
Is there anyway whatsoever that we can avoid the backpay on child support? Like for example; once hubby received results from the paternity testing….him initiating a binding agreement to pay child support registered with CSA starting from when he received the results of the paternity testing?
Or….if the 1 night stand might agree to the CSA collecting payments from a certain time?….is that even possible?
I know little about and trying very hard not to make too many judgements or assumptions but it seems that she has gone back and forth between wanting to collect child support and not. Perhaps instigated by the support she receives through government benefits (i.e base rate of FTBA) as we know that she does not work and that she has recently split from her current partner whom we were told was 'raising the child as his own'.
All I know is that hubby was not away that she had had a child until it was around 4 months old.
I also believe that what Ethie_09 has stated about the start date is incorrect. According to section 7A(2)(a) of the child support assessment Act it should start on the day that the applicant(mother in this case) properly applies for child support. The previous two attempts were not properly made and thus rejected. However, it would not surprise me at all if the CSA tried to backdate the CS. Also Ethie_09 is saying that CS would be backdated to the 1 night stand, when that is before the child was born. The birth of the child being the earliest possible date as without doubt there was no child for which child support could be claimable.
Saying that the court may (I'm not sure) be able to make an order for lost payments.
Child Support Assessment Act - Section 7A saidWhen does a child support period start?
7A Meaning of child support period
What is a child support period?
(1) A child support period is a period that:
(a) starts at a time described in subsection (2); and
(b) ends at the time described in subsection (3) that occurs soonest after the start of the period.
Note: Subsections (6), (7), (8) and (9) provide some examples of child support periods. The examples are not exhaustive or definitive: see section 15AD of the Acts Interpretation Act 1901.
When does a child support period start?
(2) Each of the following times is the start of a child support period:
(a) the beginning of the day on which an application for an administrative assessment of the child support payable for a child is properly made under Part 4;
(b) the beginning of the day mentioned in paragraph 93(1)(g) (child support payable under a child support agreement accepted by Registrar);
© the start of the first day for which a child support agreement described in section 34B is to affect the rate of child support payable for a child;
(d) immediately after the end of the preceding child support period that relates to child support payable for the child (whether it was a period starting as described in paragraph (a), (b) or © or this paragraph).
Note: Despite paragraph (2)(a), a child support period might not start if a non parent carer applies for an administrative assessment of child support during a child support period (see section 40B).
End of the child support period
(3) The child support period ends at whichever of the following times occurs soonest after the start of the period:
(a) the time 15 months after the period started;
(b) the end of the named month during which the Registrar makes an assessment relating to the annual rate of child support payable for the child as required by section 34A (assessment when new tax figure is available);
© the time immediately before the day mentioned in paragraph 93(1)(g) (child support payable under a child support agreement accepted by Registrar);
(d) the end of the day immediately before the first day for which a child support agreement described in section 34B is to affect the rate of child support payable for the child.
(4) Subsections (5), (6), (7) and (8) merely give a series of examples of the operation of the rules in subsections (1), (2) and (3). The examples involve Mary and Peter. Mary cares for their child and, on 8 June 2000, makes an application under Part 4 and receives a child support assessment for Peter to pay her child support for the child.
Exampleinitial child support period resulting from application under Part 4
(5) On 20 October 2000, the Registrar makes a new administrative assessment based on an assessment under the income tax law of Peters taxable income for the 1999 2000 year of income (as required by section 34A). The first child support period starts on 8 June 2000 and ends at the end of 31 October 2000, and the second starts on 1 November 2000.
Exampleend of child support period if new taxable income not available within 15 months
(6) If no assessment of the taxable income of Mary or Peter for the 1999 2000 or the 2000 2001 year of income had been made under the income tax law before the end of 7 September 2001, the first child support period would start on 8 June 2000 and end at the end of 7 September 2001 (15 months after it started).
Examplechild support agreement ends existing child support period and starts a new one
(7) If Mary and Peter make a child support agreement to influence the annual rate of child support on and after 15 September 2000:
(a) the child support period that started on 8 June 2000 ends at the end of 14 September 2000; and
(b) a new child support period starts on 15 September 2000.
Examplechild support period for child support agreement setting child support rate lasts 15 months
(8) If the child support agreement set the rate of child support payable for the next 2 years (so section 34A did not require the Registrar to make an administrative assessment on 20 October 2000 as described in subsection (5)), the child support period that started on 15 September 2000 would end 15 months later at the end of 14 December 2001 (unless Mary and Peter made another child support agreement to affect the rate of child support payable for a day before 15 December 2001).
The CSA Guide - 2.3.2: When do child support periods start? saidAccepting an application
CSA must make an assessment as quickly as practicable after it has accepted a new application for an administrative assessment of child support (section 31(1)). The child support period for this assessment starts on the day that the application was received (section 7A(2)(a)).
Note that when calculating child support do not forget that the child from your relationship is regarded as a relevant dependant child.
Where Ethie states "This will enable your hubby to have access to the child if he so desires, if not, then he can just pay child support and not see the child.", you may get confused, contact with the child is not dependant upon the start date of the child support assessment or collection of child support. Rather if contact is 14% or greater then the child support will be reduced and thus a common reason why some parents try to deny access to the other parent.
I doubt she will agree - she's probably being greedy, although she'll have a debt with centrelink for the family tax benefit she's received however, CSA will take this out before she receives the backpay.
CSA will take into effect that your hubby has children and is paying for them, 1 night stand will only get 18% of income before tax. I guess if you are that worried, you, yourself can contact CSA and see where you and hubby stand.
The other thing, once paternity is proven, he can apply to the court to have his name on the child's birth certificate and I suggest he does, as if he's paying child support (although not seeing or par-taking in the child's life), the child will be entitled to some of his estate when he passes.
It could be the case that this 1 night stand knows that your hubby has quite a substantial income and wants to benefit from it.
Keep your chin up and if I was you I would be contacting CSA or even legal aid (free telephone advice) and ask where you stand.
Eh where did this come from?
Ethie_09 saidThe other thing, once paternity is proven, he can apply to the court to have his name on the child's birth certificate and I suggest he does, as if he's paying child support (although not seeing or par-taking in the child's life), the child will be entitled to some of his estate when he passes.
A Will with a 'nominal' amount to a child is perfectly legal so the 'some of his estate' is pre determined by the Father.
The CSA Guide - 4.1.2 & 4.3.2 said
Section 4.1.2A decision to refuse to accept an application for assessment
An applicant can object to CSAs decision to refuse to accept their application for an administrative assessment unless one of the reasons for refusal was that CSA was not satisfied that the person who was to be assessed in respect of the costs of a child is a parent of the child (item 10, section 80(1) and section 80(5)).
If an applicant disagrees with CSAs decision to refuse their application because CSA is not satisfied that the person who was to be assessed in respect of the costs of the child is a parent of the child, they can apply to a court under section 106A of the Assessment Act for a declaration that the person should be assessed in respect of the costs of the child because the person is a parent of the child. If a court grants the declaration, CSA is taken to have accepted the application for assessment (section 106A(6)(a)).
If there was more than one reason for refusing the application, the applicant can apply to a court for a declaration that they are entitled to have CSA reconsider the application because the person who was to be assessed in respect of the costs of the child is a parent of the child. If the declaration is granted, then CSA must reconsider the application (section 106A(6)(b)).
If there is an obvious administrative error in a decision to refuse an application for assessment, CSA may be able to correct the decision without the need for court action.
CSA refuses Fs application for an assessment for child support for her child A, payable by M. The application is refused because F did not provide the necessary evidence to satisfy the presumption of parentage rules.
F subsequently contacts CSA and advises that the evidence was sent to CSA two days before the application was refused. CSA confirms that the evidence was received before the decision was made but administrative delays prevented the decision maker from considering it. CSA can correct this error, F does not need to apply to court for a declaration under section 106A.
Declaration that a person is entitled to a child support assessment (section 106A)
If CSA refuses to accept an application for a child support assessment, and one of the reasons was that CSA could not be satisfied that a person named is a parent of the child, then an application to court can be made for a declaration that the person should be assessed in respect of the costs of the child because the person is a parent of the child. The parties to the court application are each person who was to be assessed in respect of the costs of the children. Where the application is by a non-parent carer, the non-parent carer is also a party. CSA is not a party to the court application unless it decides to intervene in the proceedings.
Effect of a section 106A declaration
If the court makes a declaration under section 106A and the only reason for refusal of the application for child support was the lack of proof of parentage, CSA is taken to have accepted the application for an administrative assessment with effect from the date that CSA (or Centrelink) originally received the application. If there were other reasons for refusal of the application CSA has to reconsider the application in light of the courts declaration.
A court may make a section 106A declaration in a case where CSA has refused more than one child support application in relation to the same parties. CSA will establish which child support application was cited in the court application. CSA will examine the court application, if this is not apparent from the declaration. CSA's administrative assessment will start from the date that CSA (or Centrelink) received the child support application cited in the court application.
Declaration of parentage or section 106A declaration
CSA will not reconsider an application for assessment on the basis of a declaration that is not clearly made under section 106A. The court order must state that it is made under section 106A and/or that the person named in the order should be assessed in respect of the costs of the child. It is not sufficient for the court to declare that a person is the parent of the child. However, an order, such as a parentage order under section 69VA of the Family Law Act, can be used as the basis for a fresh application as a form of proof of parentage for section 29(2)© of the Assessment Act. See Chapter 2.1.3 Parentage and Chapter 4.3.4 Family Law Act order affecting a child support assessment
However the different information provided as confused me a little more in relation to; when will CS start from?
what I am most afraid of is the back pay which could cripple us financial for 'a while'. We have already suffered with CSA garnishing hubbys last years tax return after they re-calculated that he owed child support for his older child dating back over 5 years even though the CSA had his up to date income information through his lodged tax returns.
my gut instincts tell me that even if '1 night stand' did not want to recover backpay from her initial application in October 2009, that the government would want to recover monies if she was paid the full FTBA entitlements over this time. Although not sure how she could receive the full entitlements if she only 'intermitantly' made 2 CSA applications that she knew would be rejected because of lack of proof of parentage.
oh so much to process and to try and understand why. :-(
Ploddingalong saidI managed to find the advance calculator for CSA payments which (if accurate)
I'm pretty confident that it's accurate, exceptions are where there are low incomes, for example it doesn't factor in the offset that may be applicable in a case where the receiving parent is deemed to be on a fixed rate of CS (a pretty rare situation).
As your husband has another CS child then this complicates matters, but if the data were input correctly then unlike the Estimator which doesn't cater for multi-case scenarios it should provide the correct amounts.
Let's assume that you partner has an adjusted taxable income(ATI) of $50,000. The ex with the older child has an ATI of $25,000 (although for this new case the ATI amount is actually irrelevant) and the care that your partner has is 52 nights and the child is under 13. The newer other parent has an ATI of $16,000 and has 100% care. Then to get the correct calculations you would:
Using the Advanced calculator for a Multi-case Scennario
Inputting the Year
1) Go to the calculator and ensure that the year is correct so select 2010 (various values change each year, but note that the year that the child support period starts in is used).
Adding the Adults
- Click on the Add adult button (we will assume A1=your partner, A2=parent with newer child and A3= the parent with older child, you could change the names if you like).
- For A1 set the ATI to 50000, for A2 set the ATI to 16000 and for A3 set the ATI to 25000.
The newest child
- Click the Add Child button twice (you get C1 who we'll make the new child, C2 we'll make this the older child and C3 will be your child).
- For C1 against A1 leave A1 as the parent and change the nights care to 0.
- For C1 against A2 leave A2 as the parent and change the nights care to 365.
- For C1 against A3 change A3 to be other (i.e. not a parent of the child) and check that the nights care is 0.
The multi-case child
- For C2 against A1 leave A1 as the parent and change the nights care to 52.
- For C2 against A2 change A2 to other (i.e. not a parent) and change the nights care to 0.
- For C2 against A3 leave A3 as the parent and leave the nights care as 313 (or change it to 313, sometimes the intuitive(sic) pre-fill process can get mixed up. If you have problems with it putting values in, start from the top again).
The Relevant Dependant Child
- For C3 against A1 leave A1 as the parent and change the nights care to 365.
- For C3 against A2 and against A3 change to other and check that the nights care is 0 for both.
13) Click on the calculate button.
For the above amounts you will see that A1 (your partner) has two liabilities (the two child support cases) and is liable to pay A2 $3209 annually and to pay A3 $2302 annually, totalling $5331 annually.
Obviously the amounts, the ATI's and the nights care may not reflect your situation so you'd have to input your own figures.
You can also see that if you change A3's ATI, it has no impact on the CS to be paid to A2 (and changing A2's ATI does not affect the liability to A3).
I am not sure that there is no choice. The lawyer who has called on behalf of '1 night stand' has said that if hubby refused they would make an application to the court for a court ordered paternity test. And then going on to say that he would bear the brunt of all the court costs if paternity was proven.
I think '1 night stand' is making moves and shakes now because her government benefits are being affected. I have no idea what it would be like to be in her situation but I guess I am posting about it because my main concern is not for her or her child but for my own family. I believe she would continue receiving full government benefits if she were able to obtain an exemption from child support but someone or something is forcing her hand otherwise. I mean this person said she was pregnant but told hubby she did not intend on keeping the baby, had it anyone, and comes asking for financial assistance when things have obviously become too difficult for her.
We made a decision last night that we should see a lawyer about this. We cant really afford one but we can't afford to be slammed with a backpay debt of a few thousand dollars either. Hubby only ears around $48k per year, he pays $78 per week for his 10yo child. The advanced calculator indicates to me that hubby's child support obligations could go up to about $110-120 a week. quite significant for us when hubbys take home pay is around $750 per week. And significant in the sense that he will more than likely not ever see this child (I don't know what he wants to do in that regard but she has made it pretty clear that she doesn't want him in their life but she does want his financial help).
Do you think that I feel in a comfortable position that I would encourage hubby to spend thousands of dollars in legal fees to secure his rights as a biological father? not really. the situation is still very painful and raw.
Ploddingalong said(I don't know what he wants to do in that regard but she has made it pretty clear that she doesn't want him in their life but she does want his financial help)
To be honest, what the other parent wants may be insignificant. If paternity is proven, then your partner could initiate proceedings for contact which would quite likely result in contact being allowed as the child has a humane right to know and be cared for by the child's parents. If this contact were to be 14%-34% or greater then the total liability would drop to approximately $96 per week. If the contact increases to 35% or above then your partner would then be able to claim a percentage of the FTB payments for the child along with the CS reducing.
Note that I've made the assumption that you'd be OK with contact. If you were against contact then I could see that the child having contact could possibly not be in the best interest of the child.
Ploddingalong saidWe made a decision last night that we should see a lawyer about this. We cant really afford one but we can't afford to be slammed with a backpay debt of a few thousand dollars either.
I would suggest that engaging a lawyer, other than the free first half-hour or so (so use this, perhaps with a number of lawyers), would cost you a great deal more than any, if any, CS backpay and that you'll not likely get anywhere in regards to fighting the CSA who very blatantly hide behind the legislation and their procedural bureaucracy to very frequently not adhere to the very object of the legislation. Before employing any lawyer you should first object to a decision, if you can (some decisions cannot be objected to e.g. refusal of an application due to no evidence of paternity, although in this case the alternative is to seek proof of paternity). Odds on the objection will not be upheld (an example of a tactic the CSA use to hide behind it's bureaucracy), or that the objection will result in a partial remedy to allow a lesser amount of over collection/transfer and discount of the very object of the legislation. If the objection is not entirely successful then you could take the matter to SSAT (Social Security Appeals tribunal) who pay a little more attention to the legislation and from whom you're a little more likely to get a fair decision. If you are unsuccessful at SSAT then you have a chance to take the matter to court (no application fee) but this has to be on a matter of law. You can always get advice on here, although you need to be aware that not all advice is necessarily correct. Getting such advice could, if put to a lawyer, perhaps drastically cut the costs (I believe that a lawyer, if needed/wanted, would be best involved only if taking the matter to court).
It might be worth getting legal advice on the legitimacy of the claim after all it was only a one night stand and you husband was not in a relationship with this gold digger, and they were not planning to conceive together, although she might have been thinking about it.
Regarding child support, you would be better off spending $$$ on getting financial advice on how you can restructure your own finances so you are better off.
The only way to dispute the legitimacy of the claim is to take the paternity test I guess as we have been told it is up to the potential father to disprove paternity.
Mike T and Fairgo thanks for the advice re not getting far with legal advice. We do have an accountant but I doubt there is too much we can do to restructure finances to make us any better off. I make sure hubby claims all legitimate tax deductions but I am afraid that is about all we can but yeah with 1 toddler and another baby on the way…every dollar makes a difference for us so I will look into it. Hubby ears $48k I earn around $4k working from home.
This is not a question of a gold digger or someone that should have known better the FAMCOURTS do not make moral Judgments.
Fairgo saidIt might be worth getting legal advice on the legitimacy of the claim after all it was only a one night stand and you husband was not in a relationship with this gold digger, and they were not planning to conceive together, although she might have been thinking about it.
Paternity and therefore child support is not determined by the length or nature of their relationship.
Yes an application could be made for DNA testing (in the FMC) for proof of paternity and therefore payment of CS. Conversely the CSA might make the assumption of Paternity and he would have to go to Court to prove otherwise. HOWEVER proof of paternity then means the Father can make an application to see the child on the basis of the 'Childs right to know both Parents'.
If the Mother is determined to force the issue then a Paternity test is only a matter of time, a voluntary DNA test now might prevent unnecessary legal expenses. Initially perhaps consent to a DNA test 'if' the other side pays for the test.
also the reason why they would agree to having the tests done is because if they refuse tests then get taken to court they can then be made to pay ALL costs associated including 100% of the test cost, her legal fees, court costs and the backpay of CS.
The child having the fathers name or not on the BC has little to do with claiming from his estate if he is found to be the father. Actually it would be another cost for the father in this situation with paying for the amendments to the BC.
Ethie CS is NO longer 18% of the fathers income, nor does CS and contact (no longer refered to as custody) have anything to do with each other- if he is found to be the legal biological father of the child then the child has a right to know the father whether he pays CS or not. The mother also does not need to apply to the courts for sole responsibility if the father agrees to it- they can have consent orders drawn up.
OP the issue may be the distance involved if your Hubby wanted to spend time with the child.
Wouldnt you think that this is a cost that the mother should be responsible for considering she ommitted the fathers name (on purpose) in the first place?
I can see that it is logical that CSA will backdate calculating payments from the first application which was made in October 2009.
Would anyone know how CSA would calculate this?
Hubbys 2008/09 Taxable income was only $30,000 as he was out of work for some time.
So from 1st July 2009 to 30 June 2010 his CS payments (for 10yo) was based on this income (the previous year).
Hubbys 2009/10 Taxable income was $48,000 so from 1st July 2010 his CS assessment has been based on this amount.
Now….would CSA calculate the backpay based on his income during this period OR are they just going to calculate the whole backpay based on his current income of around $48,000??
Also, would CSA also take into account our child (dependant) that we had when she made her first application?
I know this is all hypothetical at this stage as he still has to take the paternity test BUT I am just trying to steady ourselves for what may come depending on the outcome.
Many thanks in advance for your help.
details for the NSW one is
depends on what state as to procedures and costs though.
Yep both of you DPS dependants will factor in in the CS backpay stuff. Honestly I don't think the amount of backpay will be as much as you think due to him having two dependants already.
Also she wouldn't be receiving full FTBs as she wouldn't be seeking CS if she had an exemption- she'd be on the minimum amounts(which having a child you may be able to see how much of a struggle it can be).
Without knowing her income its really difficult to judge the backpay amounts. I know on $43,000(father) and one dependants it is approx $90 a week– but thats approx and only one dependant. they should use his 09/10 tax details but again I'm not 100% sure as I no longer receive CS(by choice).
If you do have to backpay her then it will be arrears and you can work out a payment plan with CS so your not having to pay a huge lump sum.
Also has she asked your DH to contribute towards the testing costs? that might be another thing to consider- court verified tests can be $850 +(ours was around $890).
well the cost of the DNA? blimey. I am not sure. Considering the onus is on the alleged father to disprove paternity I am sure if he is proved to be the father they will slap us with that too. At this stage I believe it is a voluntary paternity test so I hope the costs are not that high. I've heard the legal aid system in Qld (where she lives) lets a mother have 3 DNA tests conducted for free but will recoup the money from the father if proven.
When '1 night stand' contacted hubby contacted huuby in March 2010 (this was the first contact they had had since October or November 2008) she said he was not good enough to even be on this childs birth certificate but she would take his money.
So where lies her consequences in all of this? She told hubby she did not intend on keeping a baby, hubby gave her $400 to help with the costs of this, has gone and had a baby anyway without his knowledge….does not contact hubby when the child is born and when details of a birth certificate need to be signed. Then in March 2010 when her child is 8 months old, she makes contact to say 'its your responsibility too and if you don't do anything I'll take you to court'.
So once again I am trying really hard not to make presumptions or judgements, I am just writing the facts as I know them.
I think the harsh reality is she didnt give too much thought into the difficulty of bringing up a child on her own which is what I think she wanted to do.
I have no real problem in accepting that hubby made a mistake which he must face the consequences of, I just have a very hard time dealing with the fact that me and my children must suffer for her choices aswell.
I have not nor would I label her a gold digger…just very young (20-21 I think) and if she was looking for an easy ride; she's come up nickel.
The tests needs to be done by a court approved facility for them to be legible in court(the cheapie internet type versions will not mean anything if it went to court at some stage). That way your DH wont be lumped with the whole test fee either way.
If she were a 'gold digger' she would also be trying to maternity and birth expenses(costs associated with giving birth and prenatal). It really sounds liek she may have underestimated the costs and centrelink being centrelink have cut her FTBs until she claims CS. So ultimately she is broke and struggling to support the baby.
Its a sucky system for all involved in these situations and the affects can impact a lot more people than those couple involve in the first circumstance. But at the end of the day the baby is here and if you DH is the father theres not a lot that can be done to change it now(actually nothing really) but to make the best of the situation.
The whole she was having an abortion thing is really not that relevant now- she obviously didn't go through with it, and thats her right as it was her body etc…(theres the whole well whats the man who doesn't want the kids rights- but thats a whole other debate).