In family law there is quite often a dispute about who the father of a child is. The dispute may arise from the child being born from a short relationship and the biological father is in denial or a long-term relationship when the father has, during the course of the relationship, been led to believe the children born during the relationship are his flesh and blood and the mother informs him he isn’t.
Presumption of parentage – married and de-facto couples
The Family Law Act sets out that there is a presumption of who the parents of a child are in the absence of a paternity test and include:
- The person’s name is on the child’s Birth Certificate;
- The father has sworn a document (generally a Statutory Declaration) acknowledging that he is the father of the child;
- They were married to the other parent at the time the child was conceived;
- The person and the other parent were living together at any time from 44 weeks to 20 weeks before the birth of the child;
- The child is adopted by the partner;
- A Court has made an Order that they are the parent of the child.
Presumption of parentage – birth as a result of artificial insemination
Some couples struggle to have children on their own and turn to some means of artificial conception to be able to experience the joy that a child can bring to their relationship.
Section 60H of the Family Law Act prescribes a presumption of parentage when artificial conception procedures are undertaken which includes:
a. A child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent); and
i. the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or
ii. the child is a child of the woman and of the other intended parent;
then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of the Act:
c. the child is the child of the woman and of the other intended parent; and
d. if a person other than the woman and the other intended parent provided genetic material–the child is not the child of that person.
This means that if conception took place when you were married or in a de-facto relationship and cohabitating with the birth mother at the time the artificial insemination procedure took place AND there was full consent to the artificial insemination procedure, there is a presumption of parentage, regardless of whether or not the child is biologically your child. If the medical procedure took place without the full consent of both parties, there is no presumption as to parentage, notwithstanding you are a biological match.
So, what happens if there is a dispute over the biology of a child?
When there is a dispute about the parentage of a child either of the child’s parents can make an application to the Federal Circuit and Family Court of Australia for an order for DNA testing. An Order for DNA testing cannot be a standalone order. That is, it must be in conjunction with a parenting order, such as an order allocating parental responsibility or an order for the child to live with one person and/or spend time with that person.
Once the DNA test confirms who the biological parents of a child are, the ‘parents’ have specific rights and obligations when it comes to their children, which are set out briefly below. This information is to be taken as a guide as no two matters are identical.
In same sex relationships, there may be a donor involved in the medical procedure. Parenting rights may apply to the donor spouse. Please see Why the recent High Court ruling on the Parental Rights of a Sperm Donor matters newsletter for more information.
If you were a donor and wish to speak to one of our family lawyers to find out what rights and obligations you have, please contact our family law team.
Allocation of parental responsibility
Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents exercise. This may be making decisions as to where a child goes to school, what doctors are engaged in treatment and authorising medical operations on a child.
There is a presumption that parents will have equal shared parental responsibility however this can be rebutted particularly in circumstances of family violence.
If you or a loved one is experiencing family violence please read our blog on the Federal Government Escaping Violence Payment to see what assistance you may be entitled to.
The Family Law Act provides that when the Court considers parenting orders. It must consider the benefit to the child of having a meaningful relationship with both parents (again, the court also consider any domestic violence issues or whether there is a need to protect a child).
Once a DNA test confirms a child’s ‘parents’, either parent may make an application to the Court for orders for the child to spend time with them (or live with them). That time may be:
- Equal time; or
- Significant and Substantial time; or
- Immersion visitation
- Identification time
Determining best interest
The Court is guided by several factors which it must take into consideration when making parenting orders. The two primary considerations are
- the benefit of a child having a meaningful relationship with both parents; and
- the need to protect the child from harm (physical or psychological) abuse or violence.
The additional considerations are found at s60CC(2).
The determination of the parentage of a child may also impact child support matters as ‘parents’ have an obligation to financially support their child.
How much that financial support will be is generally determined by a formula created by the Child Support Agency. To ascertain how much you are likely to pay, please visit the Child Support Website.
Parties are also able to enter into a private agreement known as a ‘Child Support Agreement’ which will set out what each party will pay for the financial support of the children and can include periodic payments (regular weekly/monthly) lump sum and additional payments such as day care fees, school fees, private health fund expenses.
What if I am proven not to be the father?
Regardless of whether you have a DNA test that confirms you are not the father of the child, you still have the ability to make an application to the Court for an order to spend time with the child. Whilst the Family Law Act provides that any person ‘concerned with the care, welfare or development of a child’ may make an application for a Parenting Order. This is particularly the case when you have treated a child as if they were your own.
Repayment of child support
If you have paid child support subsequent to a separation for a child who is proven not to be your child, you may make an application to the Court for repayment of the child support you have incorrectly paid. However, the court will not automatically order child support to be repaid.
If you have any questions regarding your rights and obligations for your child or to a child you suspect to be your biological child, please contact our experienced family law team who will be able to assist and answer your questions.