Presumption of parentage: you are not the father

Recently, a loving father who lost his 20-year-old son in 2019, discovered a devastating lie after the child’s mother sent him a chain of text messages two years after the child’s death. He was not the child’s biological father. Throughout the child’s life, the father lived with the child’s mother until he was seven, then shared custody of him and contributed to expenses and paid $400 a week in child support until the child turned 18. Now 43, the father has told A Current Affair he paid the child’s mother just under $110,000, which he says he had “no worries” doing so.

Unfortunately, circumstances involving an incorrect presumption of parentage occur more often than one might think and many people do not understand the laws that apply to such circumstances.

Introduction – laws pertaining to presumption of parentage

Not many people know that the Family Law Act and the Child Support Assessment Act have a series of presumptions about the paternity of a child. Presumption of parentage legislation is relevant where there are disputes as to whether someone is a father of a child biologically.

There are a series of legislative mechanisms which provide for the following:

1. Presumptions as to who is considered to be a father;
2. Legal processes to establish parentage;
3. Evidentiary standards for establishing that proof; and
4. Consequences if a person is deemed to be a parent within the meaning of either the Family Law Act or the Child Support Assessment Act.

Presumption of Parentage

Let’s look at the legislative underpinnings behind the presumption of parentage and first look to the Child Support (Assessment) Act 1989 (Cth) where:

1. Section 29(2) sets out the grounds on which the Child Support Registrar can assume paternity of the child:

• • the child was born during a marriage;
  • person’s name is entered as the father of the child into a register of births or parentage information;
  • a court has found the person is the father of the child;
  • the person has executed an instrument acknowledging he is the father of the child;
  • the person adopted the child;
  • the child was born within 44 weeks of the marriage, regardless of whether the marriage is annulled or the parties have separated; and
  • the child was born within 44 weeks of unmarried parties but are or were living together. This includes if the parties separated 20 weeks before the child was born.

1. Section 106 provides for a person to seek Orders for a declaration that a person should be assessed in respect of the costs of the child; and
2. Section 107 provides for a declaration to be sought that a person should not be assessed in respect of the costs of the child.

In essence, these provide for the presumption that a person is the father of a child under certain circumstances and allow for a declaration to be sought for the purposes of child support.

Similarly, under the Family Law Act, the following provisions provide that a person is presumed to be the father:

1. Section 69P – If a child is born to a woman whilst she is married, the husband is presumed to be the child’s father.
2. Section 69Q – Presumption of parentage arising from cohabitation – If a child is born to a woman; and at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth, the woman cohabited with a man to whom she was not married, the child is presumed to be a child of the man.
3. Section 69R – Presumption of parentage arising from the registration of birth – If a person’s name is registered as a parent of a child in a register of births or parentage information kept under a law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be a parent of the child.
4. Section 69S – Presumption of parentage arising from court finding:

• • If, during a particular person’s lifetime, a prescribed court (other than a court of a prescribed overseas jurisdiction) has found expressly that the person is a parent of a particular child. Alternatively, if the court made a finding that it could not have made unless the person was a parent of a particular child, and the finding has not been altered, reversed or set aside; the person is presumed to be a parent of the child.
  • If, during the lifetime of a particular person, a court of a reciprocating jurisdiction has found expressly that the person is a parent of a particular child or made a finding that it could not have made unless the person was a parent of a particular child; and the finding has not been altered, set aside or reversed; the person is presumed to be a parent of the child.
  • If, after the death of a particular person, a prescribed court has found expressly that the person was a parent of a particular child; or made a finding that it could not have made unless the person was a parent of a particular child; and the finding has not been altered, reversed or set aside; the person is presumed to have been a parent of the child.
  • In this section, “prescribed court” means a federal court, a court of a State or Territory or a court of a prescribed overseas jurisdiction.

5. Section 69U – These presumptions are rebuttable by proof on the balance of probabilities.

Evidence as to parentage

Where the parentage of a child or children is a live issue in the proceedings, the Federal Circuit and Family Court of Australia (“FCFCOA”) can Order the parties to undergo parentage.

Notably, the court will not Order paternity testing merely because a party requests it. The court can only make an order for testing at the request of a party or on its own initiative where the parentage of a child is a question.

Testing is only appropriate where an applicant has an honest, bona fide and reasonable belief as to doubt as to the assumed status quo regarding parentage: in Re Marriage of F v R [1992] FLC 92-300. Meaning that there needs to be some evidence that places parentage in doubt, as there is no power under the Family Law Act itself to make a “stand alone” order to satisfy the doubts of a parent.

Section 69Y provides that where a party refuses to undergo a paternity test, the Court can draw its own inference contrary to that parties’ interests – see G v H [1994]181 CLR 387. With that in mind, such refusals have in the past been considered in light of religious objections, such as in F & R (1992) FamLR 533, where Butler J found that some religious or cultural reasons are a sufficient basis for an objection.

Interestingly, orders for testing are not limited to parties to the proceeding themselves, but the person being tested must be over 18 or have the consent of a parent or guardian.

The court can order:

1. That the mother and child to be tested under Section 66W(3)(a) and (b); and/or
2. That any person whom it believes may assist in determining the parentage of the child be tested under Section 66W(3)(c). It could include the potential father or any other relative of the child.

Once the procedure is ordered, the court can also make a declaration that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth, such as in the areas of Child Support or passports.

The Family Law Act and Family Law Regulations have specific provisions regarding the procedures the parties must follow in prescribed parentage testing, the form of the report and how they can introduce them into evidence. I will discuss this in further detail below.

Case law

Cases like the ones set out below illustrate the process of obtaining paternity testing and the potential consequences of paternity findings.

In the Marriage of Lee and Tse (2005) 33 Fam LR 167, the court found that in determining whether to make an Order for parentage testing, the Applicant must overcome two hurdles:

1. Parentage must be relevant to the nature of the proceedings.
2. There must be evidence that places doubt on the parentage of the child.

In G & N 2003 FLC 93-160, the purported father had been paying child support and was subsequently determined not to be the child’s father As he did not come within the meaning of a “parent”, the court had no power to deal with the recovery of monies paid to the mother. The Court held that relief must be made in the civil Courts.

In Clarence & Crisp [2016] FamCAFC 157, the appellant was the child’s birth mother but the child was conceived using the respondent’s egg.

There was an appeal against a finding that the parties were in a de facto relationship at the time of the child’s conception. Subsequently, the respondent was therefore a parent of the child. The court discussed the statutory tests relating to married and de facto couples and found that the relevant question was not whether the parties separated when the respondent moved out of their home but whether the relationship subsisted at the time of the conception. The existence of a de facto relationship is a finding of fact that depends upon an assessment of all of the circumstances of the relationship. Therefore the trial judge did not err, and the appeal was dismissed.

When seeking Orders for paternity testing, it is important that the parentage testing procedure must be carried out:

• Under Division 2 of Part IIA of the Family Law Regulations 1984; and
• At a laboratory that is accredited by the National Association of Testing Laboratories, Australia, to carrying out parentage testing procedures; and
• Following standards of practice that entitle the laboratory to be so accredited.

Regulation 21C of the Family Law Regulations 1984 provides that the definition of parentage testing procedure in subsection 4(1) of the Act, the following medical procedures are prescribed:

• Red cell antigen blood grouping;
• Red cell enzyme blood grouping;
• HLA (human leukocyte antigen) tissue typing;
• Testing for serum markers;
• DNA typing.

I also draw your attention to the prescribed forms contained in the Family Law Regulations 1984 in the Schedule to the Regulations, which will need to be completed at the time of testing.

Ramsden Family Lawyers – we specialise in helping to resolve family disputes

If you would like assistance concerning issues of paternity, you can contact our family lawyers. Ramsden Family Lawyers specialise in dealing with complex matters pertaining to presumption of parentage and subsequent disputes, and will outline your options and mitigate the emotional distress such disputes can cause. Ramsden Family Lawyers are experienced in dispute resolution, and have the abilities required to help you resolve your matter.

If you have any paternity testing questions, please contact Ramsden Family Law so that we can assist you.

Phone: 1300 749 709
Email: [email protected]