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: Chapter 5*2 Parental Responsibility, Maintenance and Child Support).
For telephone counselling, information, referral and support, contact:
Section 7 of the ARTA prohibits insemination by anyone other than a doctor and in any place other than a hospital or registered clinic. The penalty is a 480 penalty units or four years imprisonment or both. However, this will not apply to a woman or her partner assisting in self-insemination 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.
In the case of married heterosexual couples, 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 (see: "New state legislation: assisted reproductive treatment"), the SoCA has been amended to include Part III. It now brings same-sex female partners in line with heterosexual couples, providing that where donor semen is used to conceive the child, the partner (also defined as the non-birth mother (s.2)), providing the partner consented to the treatment, is irrefutably presumed to be the parent and the donor is irrefutably presumed not to be the parent, and this prevails over any conflict. Section 15 mirrors this irrebuttable presumption in relation to women without a partner who conceive with donor semen.
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.
It remains to be seen what impacts these amendments have on Family Court decisions. There has always been a presumption against parentage for sperm donors; however, a number of Family Court decisions have resulted in the granting of contact orders to donors. In Re Patrick [2002] FamCA 193, a case concerning contact between a sperm donor and the child of a lesbian couple, Justice Guest ordered the sperm donor contact rights and an identity 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 and J and Anor [2006] FamCA 1398 (in the matter of 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.
Same-sex prospective parents contemplating the participation of a known donor should seek family law advice before proceeding.
Changes to the FLA now allow two ways of establishing paternity:
The FLA establishes certain presumptions of parentage, such presumptions being rebuttable by proof on the balance of probabilities. A man is presumed to be the father of the child arising from the following:
- marriage (s.69P);
- cohabitation, or the child being born within 20 weeks of the parties separating (s.69Q); or
- acknowledgment of paternity by an instrument (s.69T).
There is a presumption of parentage arising from:
- registration of birth (s.69R); or
- a finding of a court (s.69S); and
- a declaration of parentage by the Family Court following a hearing on evidence is conclusive evidence (s.69VA).
Where, in a proceeding before a court, 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) and the report on the test is admissible as evidence (s.69ZC).
Under the SoCA there is a presumption of parentage in favour of the husband in relation to children born to a married woman and children born up to 10 months after the marriage dissolves (s.5).
Alternatively, evidence of paternity can be established by any of the following:
- the name of the father being entered in the Register of Births and hence on a birth certificate (s.8(1));
- 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; or
- a Supreme Court declaration of paternity (s.10).
If the man denies that he is the father, evidence must be given which corroborates the mother's evidence. Until paternity is proven, he will not be 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. The order can be set aside later if it can be proven that service did not occur.
Evidence from someone who saw intercourse taking place is uncommon. More usual corroboration is:
- evidence of admissions by the defendant;
- denials by the defendant relating to the circumstances which are shown to be false; and
- 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 (HLA) 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.
See: "Parenting presumptions and AI/IVF", above, for presumptions of parentage for children conceived with reproductive assistance.
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 the Act), and where paternity was established before the death of the father.
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 a 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 also: "Claims on a deceased partner's estate", below.
A woman unable to work during pregnancy may be eligible for financial assistance from Centrelink. The type of benefit or allowance which may be paid differs according to her situation. For example, if the woman has a job to return to, she would apply for Sickness Allowance; if she does not have a job to return to, she would apply for Newstart (which is paid at the same rate as Sickness Allowance). Where the woman is under the age of 21 years, in both sets of circumstances, she would apply for Youth Allowance.
A medical certificate in the form required by Centrelink will be necessary (the doctor should know and have this information).
Once the baby is born, the mother may be eligible for other types of benefit, payment or allowance. For more details, see: Chapter 7 Social Security Payments, or contact Centrelink on 13 28 50.
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 also:"Naming a child", in Chapter 5*6 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 the child. Where the parents cannot agree, a court can resolve the dispute. For more information, see: Chapter 5*6 Changing Your Name.
To register a child's birth where the father is unknown, the Registrar of Births, Deaths and Marriages requires the mother to provide an affidavit setting out the circumstances of the child's conception, in other words, 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 and the anonymity of the sperm donation.
As discussed above, 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 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 Magistrates Court for an order effecting the correction.
For surrogacy arrangements, on receipt of a substitute parentage order, the Registrar can mark the birth certificate as "closed – surrogate" (s.19A). The amended forms were made available from 1 January 2010 and can be downloaded at www.bdm.vic.gov.au.
The Adoption Act 1984 (Vic) ("Adoption Act") provides that, before an adoption can proceed, a consent to adoption must be signed not only by the mother, but also by the father of the ex-nuptial child where he is registered as father with the Registrar of Births 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 signing of consent by the mother, that the mother of the child has given consent to the adoption of the child (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 will be required (ss.33 & 49).
Section 10A of the Adoption Act prevents same-sex couples from adopting children by stipulating that an application may be made by a man and a woman. This is mirrored in the power of the court to make an order only in favour of a man and a woman (s.11). Section 13 further provides that only those capable of applying can seek approval as fit and proper persons to adopt. Eligibility for lesbians and gay men to adopt children also forms part of the VLRC recommendations discussed in "Discrimination", above.
The State Government has stated its intention to leave this discrimination unaltered. This is not the case in the ACT, Western Australia or Tasmania, where same-sex couples are able to adopt a partner's child. For further information about adoption, see: Chapter 5*5 Adoption.
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 of a child can also claim costs from a person who concedes that he is, or is found to be, the father 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 mother's and/or the child's funeral. 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 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 (see: "Paternity", above) and no order for contribution will be made until paternity is established.
In the High Court case of Magill v Magill [2006] HCA 51, a claim for damages brought by a man against the mother of a child on the basis that he had been misled about being the child’s biological father, the High Court held that false representations concerning an extra-marital sexual relationship or its consequences made by one spouse to another during the course of a marriage are not actionable in deceit. Nevertheless, the court found that a husband is entitled under the family law regime in Australia to seek an order for the repayment of any moneys wrongly paid for child support, or child maintenance, in reliance on such representations.
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 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 has reached the age of 18 years and is studying or has a disability, a parent (or the child) can seek an order for maintenance from a parent under the FLA (see: "Maintenance", in Chapter 5*2 Parental Responsibility, Maintenance 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.
In relation to financial support, children of same-sex parents have been considered by law to be a child of the relationship and maintenance or child support follows accordingly. The New South Wales Supreme Court has 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 now make is clear that same-sex parents, whether biological or not, are parents and are therefore liable for maintenance. 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 (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.
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 reach agreement between themselves, decisions are made by the Family Court of Australia under this Act about:
- where a 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 came into effect on 11 June 1996 (see: Chapter 5*2 Parental Responsibility, Maintenance and Child Support). The basic position remains that parents (married or not, and now including same-sex parents) share equal parental responsibilities 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; or
- paternity is in dispute.
Where the parent of a child lives in a relationship with another person (a de facto relationship or a married relationship 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 that are the responsibility of a biological parent, a parent under section 60H(1) of the ARTA procedure, or adoptive parent (e.g. medical treatment).
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 (Re Mark [2003] FamCA 822). The Family Court website contains a guide for making such joint responsibility applications at www.familycourt.gov.au. The amendment to the FLA to presume parentage and parental responsibilities for same-sex parents and the amendments to the BDMR Act have made these orders unnecessary for establishing or proving a legal relationship, although the orders may still be a useful adjunct, particularly in the event that the relationship breaks down. (See: "Parenting presumptions and AI/IVF", above, for presumptions of parentage for children conceived with reproductive assistance.)
If the parent and opposite sex 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 he or she were the natural child of the adoptive parents. The adopted child will be treated the same way as a natural child under the FLA, the Wills Act 1997 (Vic) and Administration and Probate Act 1958 (Vic).
By contrast, the Adoption Act prevents the non-biological parent in a same-sex partnership from applying for adoption.
An adoption order is not vacated or discharged by the death of the adoptive parent. If the natural or adoptive parent dies, that parent's will cannot transfer parental responsibilities to the partner (or any other 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.
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CHILDREN :: Last updated: Thu Jul 1st 2010