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Overview — Parentage
Justin Dowd, Partner, Watts McCray
The Family Law Act 1975 makes various provisions as to parenthood and a “child of the marriage” and importantly imposes specific obligations on the parents of a child. Relevantly, the Act provides that pending any orders being made by the Family Court to the contrary, that parents each have parental responsibility for their child/ren and have standing to apply to the court for parenting orders (although standing is not limited just to parents).
The important question then is: who is a parent of the child?
In most cases, there is no dispute as to parenthood, but circumstances can arise where the issue of parenthood is a real one. Historically, the issue of parenthood was predominantly confined to child support cases where a parent (usually the alleged father) disputed that he was the father for the child. However, in recent years there has been an increase in family law cases disputing parenthood in part driven by the technological advances in reproductive technology and increased use of arrangements like surrogacy to create families.
Statutory Presumptions
There is a presumption in the Family Law Act that if a child is born to a woman while she is married that child is presumed to be a child of the woman and her husband: s 69P of the Family Law Act 1975. In Western Australia (WA), for children born not of a marriage the equivalent provision in the Family Court Act 1997 (WA) is s 188.
This presumption also applies to parties in a de facto relationship where the woman cohabited with a man to whom she was not married “at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth”: s 69Q of the Family Law Act 1975. In WA, for children born not of a marriage the equivalent provision in the Family Court Act 1997 (WA) is s 189.
The Family Court, when considering whether the presumption should be upheld, will also have regard to the birth certificate signed by the parties and whether the man has executed an instrument acknowledging that he is the father of that child: ss 69R and 69T of the Family Law Act 1975. In WA, for children born not of a marriage the equivalent provisions in the Family Court Act 1997 (WA) are ss 190 and 192 respectively.
In most cases, these presumptions provide the answer to the question of parentage, but special circumstances can affect children and the answer of parentage for such children may need to be determined by reference to the Family Law Act and/or any relevant state legislation (eg, legislation dealing with adoption, children born following the use of artificial reproductive technology, surrogacy and child welfare are all state based and differ as between each state and territory).
Paternity
If a dispute arises in parenting proceedings as to the paternity of a child who is not a child adopted by the parties or born by artificial means, the court can order parentage testing of the parties to determine if the child is a child of the father: s 69W of the Family Law Act. In WA, for children born not of a marriage the equivalent provision in the Family Court Act 1997 (WA) is s 195. This order can be made on the court’s own initiative or on application in certain circumstances and can be made subject to terms and conditions: s 69W(2) of the Family Law Act 1975. In practice this order would be for a blood test or DNA testing: reg 21C of the Family Law Regulations 1984.
Once the court is satisfied as to parentage, the court can make a declaration that is then conclusive evidence as to parentage. Specifically, s 69S of the Family Law Act 1975 (Cth) provides that this is the case if during the lifetime of a particular person any prescribed court in Australia has made a declaration as to parentage. Section 69VA of the Family Law Act 1975 provides that this declaration is conclusive for all the laws of the Commonwealth, including for the purpose of child support issues. The equivalent provision in the Family Court Act 1997 (WA) to s 69S FLA is s 191. For obvious jurisdictional reasons, there is no equivalent provision to s 69VA FLA.
See Paternity.
Artificial insemination and surrogacy
Arrangements for children born by artificial insemination or through surrogacy arrangements (altruistic or international commercial) are governed primarily by state legislation (the approach differs as between states). There are also specific provisions in the Family Law Act applicable to these cases.
See Artificial insemination and Surrogacy.
Adoption
The process by which a child can be adopted is governed by state legislation and the approach differs as between states and territories. Western Australia is the only state in which adoption applications are heard in the Family Court of Western Australia — this is because that court is a state court. In other states, applications are determined in a different court. For example, in Victoria it is currently the County Court although the Supreme Court also has jurisdiction. The extent to which the Court is involved in the adoption order also varies considerably as between states.
Once a child is adopted, the definition of “child of a marriage” is extended by s 60F of the Family Law Act to generally include a child adopted since the marriage by the husband or wife, or by either of them with the consent of the other.
See Adoption.
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