Presumptions of Parentage

Presumptions of parentage are used by courts and other agencies to make assumptions about who a child’s parents are in the absence of direct evidence. In the past, presumptions of parentage were dictated by common law. The common law presumption reflected social norms in previous centuries: marriage was between a man and a woman, and illegitimate children had fewer rights than those born in wedlock.

In modern-day Australia, presumptions of parentage are outlined in the Family Law Act 1975. This Act provides for the complexities that can arise when children are born to single parents or to same-sex couples and takes into account advances in reproductive technology.

When are presumptions of parentage relevant?

Parentage can become an issue in a range of family law matters including child support and parenting matters. In the latter type of case, parentage may be relevant when ascertaining who has or should have parental responsibility and what parenting arrangements should be put in place. 

Whilst presumptions of parentage still apply, they can be rebutted with evidence that disproves the presumption on the balance of probabilities.

Presumptions of parentage at common law

The common law position on parentage followed the presumption of ‘legitimacy’ meaning that where a child was conceived or born in wedlock, the mother’s husband was presumed to be the father unless the spouses were subject to a separation order at the time of the child’s conception.

Presumptions of parentage under the Family Law Act

The Family Law Act displaces the common law position by outlining the presumptions that apply where parentage is in issue.

These presumptions are broadly outlined below.

Marriage

A child born to a woman while she is married to a man is presumed to be a child of that marriage. 

A child is further presumed to be a child of the marriage if born to a woman within 44 weeks after:

• Her marriage is ended by the death of her spouse; 
• Her marriage is annulled; or
• After the parties’ final separation, they resume cohabitation for a period of time, and a child is born to the woman within 44 weeks of the end of the cohabitation but after the divorce of the parties.

This presumption of parentage does not apply to same-sex married couples.

Unmarried Cohabitations

A presumption of paternity arises where a man and a woman live together at any time during the period from 44 weeks prior to the birth of a child and ending not less than 20 weeks before the child’s birth.

This presumption also does not apply to same-sex couples.

Artificial conception procedures

Where a child is born after being conceived through an artificial conception procedure (ACP), such as through an IVF clinic or an informal insemination procedure, the following presumptions of parentage apply.

Where the mother was partnered

A child born as the result of an artificial conception procedure is the child of the mother and her partner if

When the child was born, the mother was married to or partnered with another person and the couple agreed to have the procedure;

The child is a child of the mother and her partner under a prescribed law

Under these circumstances, whether or not the child is biologically related to the woman and of the other intended parent, they are parents under the Family Law Act. Any other person who provided genetic material to bring about the child’s conception is not a parent.

A person is a parent of the child under another law

A child born to a woman through ACP is the child of a person who is the parent of the child under a prescribed Commonwealth, state or territory law whether or not the child is biologically a child of that person.

Instrument acknowledging parentage

Under the Act, a presumption of parentage arises from a person’s name being entered on a register of births or a register of parentage information as the parent of a child. This presumption most commonly applies where a person’s name is recorded as a parent on a child’s birth certificate.

Findings of a court

When a court makes an express or implied finding of parentage, this finding gives rise to a presumption of parentage.

Presumptions of parentage also exist at state and territory levels (under various legislation) but these fall outside the scope of this article.

Acknowledgment of party

A presumption of paternity can also arise if under specific Australian law or prescribed overseas jurisdiction man executes an instrument (such as a statutory declaration) that he is the father of a specified child. However, this instrument may be annulled or set aside.

Rebutting a presumption

The presumptions outlined above usually provide an accurate answer to the question of parentage. However, circumstances do arise where there are two or more of the presumptions stated above which are relevant in a proceeding. In such circumstances, the presumptions are rebuttable by proof on the balance of probabilities. 

In doing so, the Court will consider which of the presumptions appear to be the more likely of the options, and the Court will consider this to be the correct presumption. 

Other circumstances

At times, there may be a situation in which no presumption applies (and parentage is required to be established) or a presumption wrongly applies and must be rebutted.

If a parentage dispute arises in relation to a child who is neither adopted nor born by “artificial” conception, the court can order parentage testing of the parties. This most commonly occurs where paternity is in dispute.

An order for parentage testing can be made by the court at its own initiative or in response to a party making an application. In practice, this means the parties and the child have blood or DNA testing. If the court is satisfied of parentage after these tests, it is empowered to make a declaration. Under the Act, a declaration of parentage is conclusive evidence of parentage and applicable to all the laws of the Commonwealth. Should a party refuse to undergo the required testing, then the Court may draw an inference that is contrary to that party’s interest. However, as determined in the case of Costa and Drake [2021] FamCA 202, it was determined that the Court will not order a parentage test merely because it is requested to do so.

Effects of parentage determination

Parents of children have rights and obligations. In the absence of any court orders to the contrary, parents have decision making responsibility for any major long term decision in relation to the child. 

The issue of parentage can also arise in child maintenance support cases, where a parent disputes parentage. When a parent applies for a child support assessment, the Child Support Agency must be satisfied that the parties are the child’s parents. Where a presumption of parentage arises, the assessment can usually be progressed and a determination made as to a party’s liability to make payments.

Artificial conception procedures

In situations where parties decide to undergo artificial conception, current legislation dictates that where a child is born by artificial conception during a relationship (regardless of whether donor egg or sperm was used by the parties), the child is deemed to be a child of the mother and/or father provided that both parties consented to the use of the material in the artificial conception procedure. 

This section of legislation is applicable to both heterosexual and same-sex couples when utilising artificial conception. 

The Masson case

In recent years the number of cases before the court relating to disputes of parentage has increased. This is particularly the case with cases that involve children conceived by donor sperm and/or through surrogacy arrangements.

In June 2019 the High Court heard an appeal from a Family Court decision where a child had been conceived via artificial insemination using sperm from a known person.

Mr Masson and Ms Parsons agreed that a child would be conceived using her close friend Mr Masson’s sperm. After the child’s birth, it lived with Ms Parsons and her female partner. Mr Masson had a close relationship with the child and saw him often.

After Ms Parson indicated that she wanted to relocate to New Zealand with her partner and the child, Mr Masson made an application to the court. He sought orders preventing Ms Parson from relocating with the child. These orders predicated him first being recognised as a parent under the Act.

The Full Court of the Family Court of Australia found that Mr Masson was not a legal parent of the child under New South Wales legislation. This legislation provided that a sperm donor (a person not in a relationship with the child’s mother) cannot be considered a parent.

However, on appeal, the High Court found that Mr Masson should not be considered a mere sperm donor: the evidence supported the finding that the man fell under the definition of a parent. Accordingly, it was determined that in certain circumstances a donor may be recognised as the legal parent of a child.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.