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  • Writer's pictureJarrod Carter

Presumptions of Parentage in the Family Law Act

Updated: Apr 27, 2022

A DNA test is typically the most reliable method of determining whether or not a man is the father of a child. However, under the Family Law Act 1975 there are a number of presumptions of parentage:

  • Marriage if a child is born to a woman who is married (s69P(1)) or is born within 44 weeks of a marriage ending by death or annulment (s69P(2)), the child is presumed to be a child of the woman and her husband. Also, is a child is born within 44 weeks after the end of cohabitation, but after the divorce of a man and woman, the child is presumed to theirs (s69P(3)).

  • Cohabitation If a child is born to a woman who has cohabited with a man during a period not earlier than 44 weeks and ending not less than 20 weeks before the birth, the child is presumed to be the child of the man.

  • Named on the Birth Certificate If a person’s name is entered as a parent on the child’s birth certificate under a law of the Commonwealth, or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be the parent of the child.

  • A Court’s finding If a court has made a finding that a person is a parent of the child, the person is presumed to be the parent of the child.

  • Declaration If a man has executed a legal document, such as a statutory declaration, acknowledging that he is the father of a child and the document has not been repealed or set aside, he will be presumed to be the father.

Where a presumption arises and is satisfied, this is often enough for the court to make a determination as to a parent’s requirement to pay child support.

Rebutting the Presumption

These presumptions are rebuttable by proof on a balance of probabilities. This means the standard of proof is ‘more likely than not’, in comparison to the standard of proof ‘beyond a reasonable doubt’ in criminal cases.

The obvious mechanism for rebutting the presumption is a DNA test. The court is able to make orders for a paternity test on its own initiative or by one of the parties making an application. Failure to undertake a DNA test while claiming that you are the father of the child may allow the court to conclude that you are not the father.

An Interesting Case: Artificial Semination

In the recent case Masson v Parsons & Ors [2019] HCA 21, the High Court rule that a man who donated his sperm for the birth of a child through artificial semination is a parent of the child under the meaning of parent in the Family Law Act 1975.

The man took action when the mother of the child attempted to relocate to New Zealand with the child and her partner. The High Court overturned the Full Court of the Family Court’s finding that the man was not a parent of the child. It was said at [26]-[29] of the majority judgement that: “A court will not construe a term in a way which departs from its natural and ordinary meaning unless it is plain that parliament intended it to have a different meaning.”

Therefore, because the man is the biological father of the child and provided his genetic material for the purpose of fathering a child, he was held to be a parent for the purposes of the Family Law Act.

If you have concerns about whether or not you are the father of a child, Carter Dickens Lawyers can assist you. Contact us today on (08) 9408 5212 to speaker with a lawyer who can assist you.

Please note the above is general in nature and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your Legal Matter.

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