Having children

 

Legal protections and responsibilities in Victoria exist in relation to children conceived naturally or with reproductive assistance, regarding paternity, inheritance, registration of birth, adoption and financial support and social security entitlements.

Choices for pregnant women

A woman who becomes pregnant has choices. If she decides to have the child she is under no legal obligation to tell the man with whom she became pregnant. If she seeks financial assistance from Centrelink, she may be required to provide information about the father and may be refused assistance if there are not good reasons for her not seeking child support from the child’s father (see Parental responsibilities and child support).

For telephone support, information and referral, contact the Council of Single Mothers and their Children (seeContacts”).

Children conceived with reproductive assistance

Artificial insemination

Section 7 of the ARTA prohibits assisted reproductive treatment and section 8 of the ARTA prohibits insemination (known as “artificial insemination”) by anyone other than a doctor and for assisted reproductive treatment, in any place other than a hospital or registered clinic and providing divisions 2, 3 and 4 of the ARTA have been met. These requirements include consent, unlikelihood of pregnancy other than by treatment procedure, a child protection order check and counselling. The penalty is a 480 penalty units (seeA note about penalty units”) or four years imprisonment, or both. Section 8 does not apply to a woman or her partner assisting in self-insemination.

Parenting presumptions and AI/IVF

In the case of married heterosexual couples using artificial insemination (AI) and in-vitro fertilisation (IVF), section 10C of the SoCA provides that the husband is presumed to be the father and to have caused the pregnancy and the donor is irrebuttably (i.e. not open to question) presumed not to have caused the pregnancy. Similarly, section 10E provides an irrebuttable presumption that a woman who produces a child through the use of another woman’s ovum is irrebuttably presumed to be the mother, and the woman who produced the ovum is irrebuttably presumed not to be the mother.

As discussed above, the amended SoCA now brings same-sex female partners in line with heterosexual couples; where donor semen is used to conceive a child and the partner (also defined as the “non-birth mother” (s 2)) consented to the treatment, she is irrefutably presumed to be the parent and the donor is irrefutably presumed not to be the parent, and that this prevails over any conflict.

Similarly, the amended section 60H(1) of the FLA conclusively presumes the partner (“the intended parent”) to be the parent of a child born through an assisted treatment procedure.

There has always been a presumption against parentage for sperm donors; however, a number of Family Court decisions have resulted in donors being granted rights. In Re Patrick [2002] FamCA 193, a case concerning contact between a sperm donor and the child of a lesbian couple, Justice Guest granted the sperm donor contact rights and the right to play a role in the child’s life akin to that of a post-separation father. The Family Court at Melbourne revisited the position of a sperm donor in R & J [2006] FamCA 1398 (also H and J and D, an ex tempore judgment), making orders for regular contact between the donor and the child. The application was brought by the donor seeking increasing overnight contact with the child and that the biological mother be ordered to inform the child of the factual identity of the donor as his “biological father”. See also “The Status of Known Sperm Donors under the Family Law Act”, Australia Family Lawyer, vol. 18, no. 4.

When there is a dispute between the parents and donor, the paramount consideration under the FLA is the best interests of the child. This cannot be displaced by any pre-existing agreement or understanding that the parents and donor may have entered into. Recent cases indicate that if there is an existing relationship between the donor and the child, it is likely that the court will make an order for the child to spend time with the donor.

Same-sex prospective parents contemplating the participation of a known donor should seek family law advice before proceeding.

Paternity

Changes to the FLA now allow two ways of establishing paternity:

1 under the FLA (pt VII div 12); and

2 under the SoCA.

Parentage under the Family Law Act

The FLA establishes certain presumptions of parentage; these presumptions are rebuttable by proof on the balance of probabilities. A man is presumed to be the father of a child arising from:

1 marriage (s 69P);

2 cohabitation, or the child being born within 20 weeks of the parties separating (s 69Q);

3 acknowledgment of paternity by an instrument (s 69T).

There is a presumption of parentage arising from:

1 registration of birth (s 69R); or

2 a court finding (s 69S); and

3 a declaration of parentage by the Family Court is conclusive evidence of parentage for all laws of the Commonwealth (s 69VA).

Where, in a court proceeding, paternity is in dispute, the court is empowered to order a parentage testing procedure, which can include a blood or genetic test. Failure to take the test incurs no penalty but the court may draw such inferences about the refusal to take the test as appear just (s 69Y). The report on the test is admissible as evidence (s 69ZC).

Parentage arising from artificial conception

Section 60H of the FLA makes provision for presumptions of parentage arising out of artificial conception.

The birth mother of a child artificially conceived is presumed to be the parent of that child, regardless of whether or not the child has her DNA.

If the birth mother was in a marriage or de facto relationship, including a same-sex relationship, at the time of conception, then her married or de facto partner is also deemed to be a parent of the child, provided they consented to the procedure.

The birth mother’s married or de facto partner is presumed to have consented to the birth mother undergoing an artificial conception procedure, unless there is evidence of the contrary on the balance of probabilities.

Pursuant to section 60H(1)(d) of the FLA, if the donor of DNA material for a child conceived artificially is not in a marriage or de facto relationship with the birth mother, then the child is not the donor’s child.

However, Family Court decisions relating to applications for parental responsibility – including Re Mark [2003] FamCA 822 and Groth & Banks [2013] FamCA 430 – have found that section 60H of the FLA does not confine the categories of person who can be deemed to be a parent of a child conceived artificially. Rather, the language of this section enlarges the categories of person who can be deemed to be a parent. In particular, if the mother is not married or in a de facto relationship at the time of conception, a sperm donor can obtain a declaration of parentage if it can be shown that he provided the sperm donation for the express intention of parenting the child (see Groth & Banks [2013] FamCA 430).

Parentage under the Status of Children Act

Under the SoCA, a husband is presumed to be the parent of children born to his wife, and children born up to 10 months after the marriage dissolves (s 5).

Alternatively, paternity can be established by any of the following:

1 the name of the father being entered in the Register of Births and hence on a birth certificate (s 8(1));

2 the father and mother jointly signing a statement in the presence of a solicitor stating that he is the father; that is, an acknowledgment of paternity is made in accordance with section 8(2). This statement should be forwarded to the registrar of Births, Deaths and Marriages; or

3 a Supreme Court declaration of paternity (s 10).

If the man denies that he is the father, evidence must be given that corroborates the mother’s evidence. Until paternity is proven, he is not required to pay child support.

Corroboration is not necessary if the alleged father is in court and does not give evidence on oath denying the allegation. Also note that corroboration of the mother’s evidence is not necessary if the alleged father is not present but the court is satisfied that he was served with a summons. A court order can be set aside later if it can be proven that the father was not serviced with a summons.

Evidence from someone who saw intercourse taking place is uncommon. Usual corroboration is:

1 evidence of admissions by the defendant;

2 denials by the defendant relating to the circumstances that are shown to be false; and

3 evidence of payments (or agreements to pay) made by the defendant.

Blood tests can only be carried out if all parties agree to them. They can now provide positive proof of paternity if a sophisticated form of testing is used. This is known as genetic tissue typing and in particular human leucocyte antigen testing. The usual requirements as to expert witnesses apply and a court must be satisfied on the balance of probabilities that the defendant is the father (s 10). As noted above, blood tests may be ordered by a court and adverse inferences drawn from a refusal to take such a test.

SeeParenting presumptions and AI/IVF”, for discussion of parentage presumptions for children conceived with reproductive assistance.

Inheritance

The SoCA provides that all children who have a mother and a father (actual or presumed) are of equal status under the law, regardless of whether their parents were married or not. For the purposes of inheritance this applies to children whose fathers die without a will or where the will was made after 1 March 1975 (the commencing date of SoCA), and where paternity was established before the father’s death.

While the amended SoCA provides presumption of parentage for children conceived through assisted procedures, it omits a provision for equality of status, and the transitional provisions exclude property interests or the vesting of property interests prior to the amendments. People in domestic relationships with children or step-children they wish to benefit should obtain legal advice about making express provisions for inheritance in a will. See alsoClaims on a deceased partner’s estate”.

Social security entitlements

Benefits during and after pregnancy

A woman unable to work during pregnancy may be eligible for financial assistance from Centrelink. The type of benefit or allowance that may be paid differs according to her situation. For example, if the woman has a job to return to, she would apply for the Sickness Allowance; if she does not have a job to return to, she would apply for the Newstart Allowance (which is paid at the same rate as the Sickness Allowance).

Whether employed or not, a woman under the age of 21 years would apply for Youth Allowance.

Applications for the Sickness Allowance must be accompanied by a medical certificate.

Once the baby is born, the mother may be eligible for other benefits, payments or allowances. For more details, see Dealing with social security, or contact Centrelink on 13 27 07.

Registration of birth

The Births, Deaths and Marriages Registration Act 1996 (Vic) (“BDMR Act”) requires that a birth must be registered within 60 days with the registrar of Births, Deaths and Marriages (see alsoNaming a child”, in Changing your name). The parents of a child are jointly responsible for registering their child’s birth, but registration by one parent only can be accepted.

Both parents share the right to choose a name for their child. Where the parents cannot agree, a court can resolve the dispute. For more information, see Changing your name.

Registering children conceived with reproductive assistance and through surrogacy arrangements

To register a child’s birth when the father is unknown, the registrar of Births, Deaths and Marriages requires the mother to provide an affidavit explaining why the father is unknown. In the case of AI or IVF through a registered fertility clinic, the mother’s affidavit must be accompanied by a letter from the clinic, confirming the circumstances of the child’s conception.

Foreign birth certificates do not create a presumption of parentage. This is relevant whether it is the mother or father who is foreign and not identified on the birth certificate. It is recommended that in this situation, you seek a parenting order from the Family Court.

As discussed above, in relation to lesbian parents, part 15 of the ARTA has amended the BDMR Act to provide that the non-birth mother (referred to as the “mother’s female partner”) can be registered as a parent on her child’s birth certificate by application to the registrar (s 17A BDMR Act). The amendment came into practical operation on 1 January 2010. The application form must be jointly signed and accompanied by proof of identity and a statutory declaration by the mother’s female partner confirming her consent to the donor treatment procedure at the time the procedure took place. The provisions also apply retrospectively so that existing birth certificates can be corrected to include the mother’s female partner as a parent.

The relevant date for the parents’ relationship is the date the procedure took place that resulted in the child’s birth. This means that parents who separated at any time after their child’s birth can still apply to correct the birth certificate to include the mother’s female partner as a parent. Where a birth mother withholds her consent to the application, the non-birth mother can apply to the Family Court or Federal Circuit Court for an order effecting the correction (see s 20 BDMR Act; Dent & Rees [2012] FMCAfam 1303).

Because a donor of semen is irrebuttably presumed not to be the child’s parent under Victorian law, the donor cannot be placed on the child’s birth certificate as a parent. To name a donor as a parent on a child’s birth certificate is to make a false declaration and penalties may apply. The legal parents are the birth mother and her female partner. For information on applying to the County Court for an order correcting a birth certificate to replace the donor with the mother’s female partner, visit www.rainbowfamilies.com.au.

The central donor registry

However, for donor-conceived births after the introduction of the ARTA, there are provisions mandating the registration of information about the donor for inclusion in the central donor registry. This information is not included on the child’s birth certificate, but there is an addendum to the certificate stating that further information is available about the entry. This information about the donor can only be given to the person conceived using donor sperm when they are 18 (or beforehand with their parents’ consent) and/or the parents of a donor-conceived person. The purpose is to entitle children born through donor insemination to access information about their biological origins. If the request for information is from the parents, the donor must consent to the information being released.

It is the responsibility of the fertility service to send the donor’s information to the central registry. In the case of home insemination with a known donor, it is the parents’ responsibility to send the registrar of Births, Deaths and Marriages a letter from the donor stating their full name, date of birth, place of birth and contact details. The donor must sign the letter and provide proof of identity.

Registration of children conceived through surrogacy

For surrogacy arrangements involving artificial insemination, the surrogate and her partner are the child’s legal parents by reason of the legal presumptions of parentage under the SoCA (see pts II, III, IV). The surrogate is responsible for registering the child’s birth. The commissioning parents must apply to the County Court for a substitute parentage order (not less than 28 days after the birth and not more than six months after the birth) and provide a copy of the certified birth certificate. Once the court makes a substituted parentage order, the commissioning parents are presumed to be the child’s legal parents. Once received by the registrar, the registrar must register the surrogacy, enter the details in the Surrogate Birth Register and mark the original birth entry as “closed-surrogate” (see s 19A BDMR Act). The presumption of the surrogate’s legal parentage does not prevail over a substituted parentage order (see s 19 SOC Act). The amended forms are available at www.bdm.vic.gov.au.

Adoption

Under the Adoption Act 1984 (Vic) (“Adoption Act”), before an adoption can proceed, the child’s mother must consent to the adoption by signing an agreement. An ex-nuptial child’s father must also consent to the adoption if he is registered as the father with the registrar of Births, Deaths and Marriages, or where he has been found by a court to be the father (s 33). Where paternity has not been established, but a particular man is believed to be the father, he is to be notified (within two days of the mother signing her consent) that the child’s mother has consented to the child being adopted (s 49). If a possible father begins proceedings to establish paternity, the adoption will not continue until the paternity application has been determined. If paternity is established, his consent to the adoption is required (ss 33, 49).

Adoption and same-sex couples

In December 2015, the Victorian Parliament passed amending legislation to remove the discrimination against same-sex couples adopting children under the Adoption Act 1984 (Vic). The Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 (Vic) comes into effect no later than 1 September 2016. From that date, the term “de facto relationship” is replaced by “domestic relationship”, which is defined as a relationship between two people living together as a couple, irrespective of gender. Also, all references to “man and woman” are replaced by “person(s)”. Section 11 (which deals with in whose favour adoption orders may be made) is amended to allow an adoption order to be made in favour of two people in a domestic relationship.

Section 26 of the SoCA provides that if there is a substituted parentage order to the commissioning parents of a surrogacy arrangement – often gay male couples – then, while the child is not an adopted child, the Adoption Act applies as though the substituted parentage order were an adoption order. In this way, the child of the commissioning parents has all the rights and entitlements as a legal child of those parents.

For further information about adoption, see Adoption and the law.

Financial support for children

The FLA allows a parent, grandparent, child, or any other person with an interest in the child’s welfare, to apply for a child maintenance order (s 66F).

A mother can also claim costs from a person who concedes that he is, or is found to be, the father. She can claim costs for her maintenance before the birth, her reasonable medical expenses in relation to the pregnancy and birth, and (if appropriate) the reasonable expenses of the child’s funeral. To claim these costs, the mother needs to apply to either the Family Court or a Magistrates’ Court, either during the pregnancy or within 12 months of the birth.

In deciding the amount of the father’s financial contribution, a court takes into account the income, earning capacity, property and financial resources of both parents, and their financial commitments to other people. Entitlement to a pension is not taken into account.

Where paternity is disputed, an application may be made for parentage testing (seePaternity”). No court order regarding the father’s financial contribution can be made until paternity is established.

In the High Court case of Magill v Magill [2006] HCA 51, a claim for damages using the tort of deceit was brought by a man against the mother of a child on the basis that the mother had deceived him about being the child’s biological father. The High Court found that actions in the tort of deceit that must comprise express and fraudulent misrepresentations and excludes silence in the absence of a legal or equitable obligation to disclose facts, does not fit with the nature of marital relationships and are therefore likely to fail. The High Court found there is no legal or equitable foundation for asserting a duty of spouses to disclose to each other issues of paternity or the wider topic of sexual infidelity. Nevertheless, the court found that under the FLA a husband may be entitled to seek to have repaid any money wrongly paid for child support, or child maintenance, as a consequence of misrepresentations.

The ongoing financial support of Victorian children is covered by Commonwealth legislation regardless of whether the child was born to married or unmarried parents. The basic policy is that both parents should contribute to the financial costs of their children. The law expects that the obligation upon parents ends when the child reaches 18 years of age, unless special circumstances apply. Where the child is 18 years old and is studying or has a disability, a parent (or the child) can seek a maintenance order from a parent under the FLA (seeChild and spousal maintenance” in Parental responsibilities and child support).

Sole parents who apply for Centrelink benefits may be required to take reasonable child-support action against the father or other parent of their child, have the support administratively assessed, or lodge an agreement with the Child Support Agency that is acceptable to Centrelink.

Financial support for children of same-sex parents

Even prior to the legal status of same-sex parents amendments, same-sex parents were held liable for child support. The New South Wales Supreme Court considered the financial responsibility of the lesbian partner of a woman who conceived with the assistance of a sperm donor. The court decided, on the facts of that case, that the non-birth mother had promised to provide financial assistance and that she should contribute to the financial costs of raising the children after the relationship had finished (see W v G (1996) 20 Fam LR 49).

The amendments to the FLA make it clear that same-sex parents, whether biological or not, are parents and are therefore liable for maintenance. This applies to lesbian couples deemed under section 60H, but does not apply to male gay couples, who may need to apply to the court for a maintenance order. Commencing on 1 July 2009, Commonwealth reforms amended the Child Support (Assessment) Act 1989 (Cth) (“Assessment Act”) and the Child Support (Registration and Collection) Act 1988 (Cth) to recognise new parentage laws for same-sex parents based on the definitions in the FLA. After separation, either parent can apply for child support from the other parent, whether or not they separated before 1 July 2009.

A known sperm donor is not a “parent” for the purposes of the Assessment Act, provided the child is a result of an artificial conception procedure, but may be liable for child maintenance under the FLA depending on the manner of conception (see B v J (1996) FLC 92–716). In ND v BM (2003) FLC 98–020, a known sperm donor appealed against liability under the Assessment Act. Justice Kay confirmed that where conception of a child is in the “usual and customary manner”, the biological parent is the parent at law and this cannot be altered by agreement.

Parental rights and responsibilities

Since 1 April 1988, the FLA has applied to children born both within marriage and outside of marriage in all parts of Australia except Western Australia. When parents cannot agree, decisions are made by the Family Court of Australia under the FLA about:

where the child will live;

with whom and for how much time the child will have contact; and

specific issues such as who has responsibility for making choices about the child’s day-to-day and long-term welfare.

Changes to the FLA to incorporate the principles of the United Nations Convention on the Rights of the Child (1989) came into effect on 11 June 1996 (see Parental responsibilities and child support). The basic position remains that parents (married or not, and now including same-sex parents) share equal parental responsibility for their child unless:

there is a court order to the contrary;

there is a parenting plan in writing and signed by the parents to the contrary;

paternity is in dispute.

Where a child’s parent is in a relationship with another person and they live with that person (e.g. a de facto relationship, or a marriage where the other person is not a “parent”), the other person does not automatically have “parental responsibilities” under the FLA. This means that the person living with or married to the parent does not have the legal capacity to make decisions and give authorisations (e.g. about medical treatment or obtaining a passport) that are the responsibility of a biological parent, a parent under section 60H(1) of the ARTA, or an adoptive parent.

An application can be made to a court under the FLA for an order that the parent and the other person share parental responsibilities. For example, same-sex parents can apply to the Family Court for joint responsibility and residence orders (see Re Mark [2003] FamCA 822). The Family Court website (www.familycourt.gov.au) contains a guide for making such joint responsibility applications. The amendment to the FLA (to presume parentage and parental responsibilities for same-sex parents) and the amendments to the BDMR Act (that provide for both parents to be on the birth certificate or substitute parentage order) have made these orders unnecessary for establishing or proving a legal relationship. However, in the absence of those forms, Family Court parenting orders are advisable, particularly if the relationship breaks down. (SeeParenting presumptions and AI/IVF”, for information about the presumptions of parentage for children conceived with reproductive assistance.)

If the parent and partner are married or living together for at least two years, the partner is eligible to make an application under the Adoption Act. The effect of adoption is to make the child the same at law as if they were the natural child of the adoptive parents. The adopted child is treated the same way as a natural child under the FLA, the Wills Act 1997 (Vic) and Administration and Probate Act 1958 (Vic).

An adoption order is not vacated or discharged by the adoptive parent’s death. If the natural or adoptive parent dies, that parent’s will cannot transfer parental responsibilities to the partner (or any person). If the parent dies, an order under the FLA is the only way to confer these responsibilities. Without a court order, only the other natural or adoptive parent, if there is one, is deemed by law to have the responsibilities.

In all decisions about children’s matters, the Family Court must view the best interests of the child as the paramount consideration. Decisions made under the FLA state that matters such as the sexual orientation of a person, or whether the person is married or not, are only relevant if the best interests of the child are affected.