Florence and Matty were in a de facto relationship for three years. Things were getting rough and Florence decided to leave. She called off the relationship and moved out.
At the time Florence was 26 weeks pregnant. When Florence left, Matty accused her of having an affair and there was no way he could be the father of her child.
Florence knew Matty was the father as she never had an affair.
After a beautiful baby boy was born, Florence named the child Nicholas and registered the child with Matty’s surname. Matty refused to attend the birth and subsequently refused to sign Nicholas’s birth certificate.
"...can the court make a
declaration that Matty is
the father of Nicholas?"
Florence was deeply hurt by Matty’s actions and commenced proceedings in the Federal Circuit Court seeking a declaration from the court that Matty was Nicholas’s father.
The question here is can the court make a declaration that Matty is the father of Nicholas in circumstances where there is a dispute about parentage, without a parentage test being undertaken?
What are the legal principles around parentage and testing?
Under the Family Law Act 1975 a person can be presumed to be a child’s parent in the following circumstances:
- If the child was born to a woman while she was married and not separated, the child is presumed to be the child of the woman and her husband.
- The child will be presumed to be the child of the woman and her husband, even if the parties were separated at the time of birth, if the child is born within 44 weeks after the parties ceased living together.
- If a child is born to a woman and that woman was living with a man who she was not married to at least 20 weeks before the birth, then that child is presumed to be the child of that man.
- If a person’s name is entered as a parent of the child in a register of birth or parentage information kept under any law of the Commonwealth or of a State or Territory or prescribed overseas jurisdiction, then that person is presumed to be a parent of that child.
- If during the lifetime of a particular person, a prescribed court, other than the court of prescribed overseas jurisdiction, has found expressively that the person is a parent of that particular child or made a finding that it could not have made unless the person was a parent of the child and that finding has not been altered, set aside or reversed.
- If under the law of the Commonwealth or of a State or Territory or prescribed overseas jurisdiction a man has executed an instrument acknowledging that he is the father of the child and the instrument has not been annulled or otherwise set aside, then that man is presumed to be the father of the child.
Any of the above presumptions can be rebutted if proof can be provided to the court.
In scenarios where none of the above presumptions are applicable, then a parentage testing procedure will need to be undertaken to determine the parentage of the child.
What’s the outcome of our scenario involving Matty, Florence and Nicholas?
Presumption number 3 is applicable in this situation as Florence was living with Matty 14 weeks before Nicholas was born.
"In this case the presumption would apply that Matty is the father of Nicholas."
In this case the presumption would apply that Matty is the father of Nicholas. In order to refute this Matty would need to undertake a parentage test to show otherwise.
If you are in a situation similar to Matty or Florence, you should contact today’s blog writer Rebecca Lucas, lawyer specialising in Family Law.