Presumption of parentage arising from marriage or cohabitation

The Family Law Act 1975 (hereinafter referred to as the “Act”) contains several presumptions regarding parentage which can result in the wrong person being “assumed” to be the Father of a child.

What happens if a Father becomes aware later, that he is not in fact the Father of a child, and what ramification (if any) are there for the Mother.

Under the Act if a child is born to a married woman the child is presumed to be the child of the Husband and the Wife.  Similarly, if a child is born while the mother is in a defacto relationship, the child is presumed to be the child of the defacto partners.

Even in circumstances where the couple (either married or defacto) have separated, re-established the relationship, and separated again, the child is presumed to be a child of the parties to the relationship.

In circumstances where parentage is in question, the Court can order that parentage testing be carried out, either by consent, on application or on its own initiative.

Parenting arrangements and issues concerning child support can be affected if the parentage testing determines that the person who was presumed the Father actually was not.

Parenting Arrangements

If the Father has a well-established relationship with the child by the time it is determined that he is not the Father, a change in the parenting arrangements could have a detrimental effect on the child and may not be in the child’s best interest.

Under the Act, the court has the power to consider the relationship of significant others with the child when determining what is in the child’s best interests.  It may be the case that it is in the child’s best interests to continue its relationship with the Father as it was before.  In such circumstances it would be unlikely that the court would entertain an argument from the Mother that the Father was not the “biological parent” and therefore should not have any time with the child.

Child Support

If a father has been supporting a child via child support payments and parentage testing determines that he is not the Father of that child, an application can be made to the court to have the payments made by the Father returned.

For the court to be satisfied that this is an appropriate course of action, it must accept that the Mother knew or ought to have known that the “Father” was not the Father of the child at the time of seeking the Child Support payments.

Our advice in this regard is always – if in doubt find it out.  If you require advice, contact one of our experienced Family Lawyers today.