Presumptions of parentage are used if courts and other agencies want to determine who are a child’s parents. However, they must only use this if there are no direct pieces of evidence related to determining the parents of a child. In the past, Australian law only reflected the traditional notion that children born out of wedlock were illegitimate. However, the Family Law Act 1975 now imposed:
- The presumption of parentage that replaced old traditional concepts and norms regarding children and marriage.
- Courts and other agencies to determine parentage for children who are born to single parents or same-sex couples.
- Courts and other agencies to determine parentage for children who are born using reproductive technology or surrogacy.
Parenting disputes can arise if authorities and concerned courts cannot determine who are the parents of a child. Some of these disputes are related to the allocation of parental responsibility, making parenting plans, childbirth maintenance, and child support agreements. This article will talk about the presumptions of parentage in family law.
Related Family Law Matters When Determining Parentage
1. Allocation of Parental Responsibility
Courts will presume that a married couple has equal shared parental responsibility over their child. This type of responsibility allows parents to make joint decisions about their child’s major long-term issues. Some of these common major long-term issues include:
- Healthcare arrangements
- School arrangements
- Religious belief
- Name changes
- Living arrangements
2. Parenting Plans
Children still deserve the same care, treatment, and love they receive from their parents even after separation. Hence, divorced or separated couples are required to make parenting plans for their children’s sake. Courts may approve parenting plans either through consent or court hearings and turn them into legally binding court orders. Parenting plans typically contain arrangements like:
- Child changeovers
- Communication with the other parent without parental responsibility
- Healthcare arrangements
- School arrangements
- The child’s holidays and vacation
- Necessary measures if there are changes to the parenting plan or miscommunication between the divorced couple
3. Child Support Agreements
Both the father and mother of a child are liable to pay child support agreements. Child support is a type of payment that will help a child grow and develop properly. When parents agree on these payments they can have the court turn them into binding child support agreements. Child support typically covers the child’s:
- Food
- House
- Clothing
- School fees
- Medical fees
- Entertainment
- Extracurricular activities
4. Childbirth Maintenance
Courts and agencies may use presumptions of parentage when talking about childbirth maintenance. Why? The father of a child is responsible for financially supporting the birth of his child. However, courts must first determine paternity through a DNA test before drafting a childbirth maintenance order.
Section 69P: Presumptions of Parentage and Marriage
Section 69P outlines the requirements for determining parentage from marriage. A child is considered a child of the marriage if he/she is born while the mother is married to the husband. Moreover, a child is presumed to be a child of a woman and the purported husband if:
- The woman of the marriage passed away
- An alleged marriage in which a woman is a party is declared null and void
- The woman of the marriage gives birth to a child within 44 weeks
- Both married couples separated at any time
- A child is born 44 weeks after the end of the cohabitation but after the parties’ divorce. Cohabitation is where two unmarried people live on a genuine domestic basis while having sexual relations.
- Both parties resumed cohabitation after the separation
- Both parties separated again and lived separately within 3 months after the resumption of cohabitation.
Sections 69Q, 69S, 69R, and 69T: Factors For Presumptions of Parentage
1. Cohabitation
According to Section 69Q, there is a presumption of paternity that arises from cohabitation. A child is presumed to be a child of a man if he lived with the mother of the child from a period not earlier than 44 weeks and no later than 20 weeks before the birth of the child. The father may take a paternity test if he denies paternity of the child.
2. Registration of Birth
Section 69R provides that registration of a child’s birth is a factor for presumptions of parentage. Simply speaking, a person registered as a parent of a child in a birth registry causes a parentage presumption. The NSW Registry of Births, Deaths, and Marriages are available for people who want to see if they’re registered as parents of a child.
3. Court Findings
According to Section 69S, court findings are a relevant factor that can contribute to parentage presumption. Some of these court findings may include (even if the concerned person was deceased):
- Finding out that a person is a parent of a child
- A court made a decision that could not have been made unless the person was the parent of a specific child
- A court result that determined the parents of a child that wasn’t altered, set aside, or reversed
4. A Person Acknowledging Paternity
According to Section 69T, a person acknowledging his paternity is a factor for presumptions of parentage. A person may use an instrument that acknowledges his paternity as long as that instrument has not been annulled or set aside.
Section 69U: Rebuttal of Presumption
According to Section 69U, courts or agencies may rebut a parentage presumption on the balance of probabilities. Section 140 of the Evidence Act 1995 specifies the civil standard of proof (when a court decides whether a matter has been proven or not). The Act also establishes a framework for courts to use for determining whether a matter is satisfied on the balance of probabilities. These are:
- The nature of the cause of action or the nature of the defence; and
- The subject matter’s nature; and
- The seriousness of the allegations.
However, there are times when no presumptions of parentage apply or when a presumption applies incorrectly and requires rebuttal. Again, a DNA test will typically solve parentage disputes in relation to a child who is neither adopted nor born through artificial means.
Seeking Legal Advice From Experienced Family Lawyers
It’s important to seek legal advice from family lawyers when dealing with presumptions of parentage. A lot of family law disputes may arise when people don’t determine parentage correctly.
JB Solicitors can help disputed parties in determining parentage and help with family law matters after determining parentage. We have mediation services for disputed couples who want to come to an amicable agreement.
Contact our team of seasoned family lawyers today.
