Parentage of a child can sometimes be the subject of dispute and require determination in family law proceedings. Read on to learn more from our experienced Family Lawyers Brisbane Northside.
Usually, it is clear who is the mother of a child. Where there is a dispute, it may arise as a result of an alleged fraud on the part of the woman who asserts she is the mother or where an alleged parent claims that the alleged mother was given the wrong baby at the hospital following a child’s birth.
Evidence will normally exist however to establish maternity, for example from those who were present at the birth.
Establishing paternity can be more difficult. The common law developed a presumption of paternity such that a child was deemed to be the child of its mother’s husband where the child was either conceived or born in wedlock unless at the time of conception the spouses were subject to a certain decree or order relation to separation. However, those decrees or orders are no longer available under the Family Law Act 1975.
The Family Law Act 1975 sets out certain presumptions of parentage, including presumptions concerning children who are born as the result of artificial conception procedures. Whilst it is not clear whether the presumptions set out in the Act is intended to exclude the operation of the common law presumption of paternity or presumptions under State law, it seems clear that the parentage presumptions set out in the Act are intended to apply for all purposes of the Act.
The presumptions under the Family Law Act 1975 include:
- Presumption of parentage arising from marriage: Under section 69P of the Act a child is presumed to be a child of both a woman and her husband if the woman gives birth to the child, whilst she is married; within 44 weeks after the marriage is terminated by death or annulment or where after parties to a marriage separate, the parties had again cohabited on one occasion for a period of less than 3 months and the child is born within 44 weeks after the end of the cohabitation, but after the divorce of the parties. The presumption can be rebutted by proof established on the balance of probabilities;
- Presumption of paternity arising from cohabitation: Under section 69Q of the Act, a child is presumed to be the child of a man if the child is born to a woman who, at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth, has cohabited with that man and the concerned woman and man were not married. The presumption can be rebutted by proof established on the balance of probabilities;
- Presumption of parentage arising from parentage information being entered in a register of births or a register of parentage: A parentage presumption applies under section 69R of the Act where a person’s name is entered in either a register of births or a register of parentage information as being the parent of the concerned child. The register must be one that is kept under a law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction. The presumption can be rebutted by proof established on the balance of probabilities;
- Presumption of parentage arising from a judicial finding: A judicial finding that a person is a child’s parent will give rise to a presumption of parentage under section 69S of the Act where the finding was made by an Australian court or a court of a prescribed overseas jurisdiction and provided that the finding has not been altered, set aside or reversed. The presumption of parentage created by a judicial finding after a person’s death can be rebutted by proof established on the balance of probabilities but a presumption of parentage created by such a finding during a person’s lifetime is not;
- Presumption of parentage arising from an instrument having been executed which acknowledges paternity: A man will be presumed the father of a child under section 69T of the Act if he has executed an instrument acknowledging that he is that child’s father; that instrument has not been annulled or set aside and it was made under the law of the Commonwealth, a state or territory or a prescribed overseas jurisdiction. The presumption can be rebutted by proof established on the balance of probabilities.
- Presumption of parentage in relation to artificial conception procedures: Section 60H of the Act establishes the following presumptions of parentage where a child is born as a result of carrying out an artificial conception procedure. It seems that these presumptions are conclusive as there is a provision in the Act regards rebutting these presumptions:
- Under sections 60H (1) of the Act, a child is presumed to be the child of both a woman and her partner regardless of whether the child is biologically their child if the artificial conception procedure was carried out while the woman was either married or living in a de facto relationship with that partner and the procedure was carried out either with the consent of the woman and her partner, or according to a prescribed law of either the Commonwealth, the state or a territory, the child is a child of the woman and her partner;
- Under section 60H(5) of the Act, a person is presumed for the purposes of section 60H(1) of the Act to have consented to an artificial conception procedure unless it is proved on the balance of probabilities that the person did not consent;
- Under sections 60H(2) and 60H(3) of the Act, a child is presumed to be the child of a woman or a man if, the child is born to the woman as a result of the carrying out of an artificial conception procedure and whether or not the child is biologically a child of the woman or the man, according to a prescribed law of either the Commonwealth, a state or a territory, the child is the child of that woman or that man.
What next? | Family Lawyers Brisbane Northside
If you need assistance to establish the parentage of a child, contact our family lawyers Brisbane Northside for advice tailored to your circumstances and move forward with us to resolve your matter. We have two convenient locations in Brisbane; the CBD and at the Grange.
No matter your situation in family law, our team of family lawyers Brisbane Northside are here to help. Our team is dedicated to helping you reach the best possible outcome for your situation, giving you certainty to move forward in life.