2.1.3 Parentage

Context

When a parent or a non-parent carer asks the Registrar to make a child support assessment, the Registrar needs to be satisfied that the persons to be assessed in respect of the costs of the child are parents of the child. The Registrar will only be satisfied that a person is a parent in specific situations.

Act references

CSA Act section 5, section 25, section 25A, section 29(2), section 29(3)

FL Act section 60H, section 60HB

FL Regs regulation 12C, regulation 12CA, regulation 12CAA

On this page

Meaning of 'parent'

The term 'parent' has its common meaning of the biological mother and father of a child. It also includes (section 5):

Presumptions of parentage

The Registrar can be satisfied that a person is a parent if one or more of the following presumption situations apply (section 29(2)).

  • The person is or was a party to a marriage and the child was born to the person, or to the other party to the marriage, during the marriage. A child is born during a marriage even if the parties to the marriage have separated as long as a divorce was not finalised at the time of the birth (i.e. the child was born before the decree absolute).
  • The person is named as the child's parent in a register of births or parentage information kept under Australian law or the laws of a reciprocating jurisdiction (1.5.1). The Registrar will accept a person's verbal or written assurance that they themselves are named as the child's parent in a register of births but the applicant may need to provide a statutory declaration or a copy of the birth certificate to establish that the other parent is named in the register of births.
  • An Australian court, or a court of a reciprocating jurisdiction, has expressly found that the person is a parent of the child, or has made a finding that could not have been made unless the person was a parent of the child (and that finding has not been set aside, altered or reversed).
  • The person has executed an instrument under an Australian law, or the law of a reciprocating jurisdiction, such as a statutory declaration under the Oaths Act of an Australian state or an affidavit, acknowledging that they are the child's parent, and that instrument has not been annulled or set aside.
  • The person has adopted the child in Australia or under the law of another country (whether or not that country is a reciprocating jurisdiction). The Registrar will accept a verbal or written declaration from a person that they themselves are named as the child's parent in legal adoption papers.
  • The person is a man and the child was born within 44 weeks after his marriage to the child's mother was annulled.
  • The person is a man who was married to the child's mother and they separated, then resumed cohabitation for 3 months or less, and the child was born within 44 weeks of the end of that last period of cohabitation but after they divorced (after the date of the decree absolute).
  • The person is a man who cohabited with the child's mother at any time during the period beginning 44 weeks and ending 20 weeks before the child was born, but they were not married at any time during that period.
  • The Registrar is satisfied that the person is a parent of the child under FL Act section 60H or section 60HB.

The Registrar cannot be satisfied that a person is a parent of a child solely on the basis of the results of paternity tests. The Registrar cannot be satisfied that a person is a parent of a child on the basis of a person's verbal acknowledgment of parentage; however a person can provide verbal confirmation that they themselves are named as a parent of a child in a register of births. Only a court may determine that it is satisfied of a child's parentage on the basis of other evidence.

Conflicting evidence

The Registrar does not need to conduct enquiries or make investigations. However, if information is available under more than one of the paragraphs in section 29(2) and the evidence conflicts, the Registrar can choose which person is more likely to be a parent of the child (section 29(3)). Also, the Registrar does not have to be satisfied that a person is a parent even if one of the nine presumption situations exist if there is conflicting information that casts doubt on a child's parentage.

The Registrar can take into account other types of evidence when making a decision about conflicting evidence. The Registrar is not making a finding of parentage, but an administrative decision as part of a decision whether or not to accept an application for assessment.

Cohabitation

For the purposes of section 29, cohabitation means 'living together in a sexual relationship' (Bixby and Farraday (SSAT Appeal) [2009] FMCAfam 647). In deciding whether 2 persons cohabited at any time during the relevant period, the Registrar will consider:

  • whether 2 persons are living together rather than merely visiting or spending time together, and
  • the existence of a sexual relationship between the 2 persons.

Each case must be considered on its own merits to determine whether it is likely that the person is a parent of the child.

A child born as a result of an artificial conception procedure

A person who is a parent under FL Act section 60H is also considered a parent for the purposes of the CSA Act.

Section 60H applies to children born as a result of artificial conception procedures. A woman who gives birth to a child, in Australia or overseas, following an artificial conception procedure is legally a parent of that child. If the child was born to a woman whilst married or in a de-facto relationship (either same-sex or opposite-sex) and her husband or partner consented to the procedure, the husband or partner is also a parent of the child. A woman's husband or partner is presumed to consent to the procedure unless it is demonstrated, on the balance of probabilities, that he or she did not consent.

Prior to 1 July 2009 a same-sex partner of a woman who gave birth to a child born as a result of an artificial conception procedure was not a 'parent'.

A child born as a result of a surrogacy arrangement

A person who is a parent under FL Act section 60HB is also considered a parent for the purposes of the CSA Act.

60HB applies to children who are born as a result of a surrogacy arrangement. If a court has made an order under a prescribed law of a state or territory declaring that each of one or more people are parents of a child born as a result of a surrogacy arrangement, then those people are also parents of the child for the purposes of child support.

Not all states and territories have prescribed laws under which a court can make an order about parentage of children born as a result of a surrogacy arrangement. The list of prescribed legislation is at regulation 12CAA FL Regs 1984.

Prior to 1 July 2009 the commissioning parents of a child born as a result of a surrogacy arrangement were not recognised as parents for the purposes of child support legislation even if an order had been made under state or territory law.

Same sex parents

A same sex couple will be considered to be the parents of a child for the purposes of the CSA Act if:

  • they have adopted the child, or
  • the child was born as a result of an artificial conception procedure and the parents were in a de-facto relationship at the time of the artificial conception procedure, or
  • the child was born as a result of a surrogacy arrangement, and a court has made an order under a prescribed law of a state or territory declaring that the couple are the parents of the child.

In order for an application for a child support assessment to be accepted, the Registrar must be satisfied that one of the presumptions of parentage exists in relation to the child.

Review of decisions to accept or refuse an application on the basis of parentage

A parent can object to the acceptance of or refusal to accept a child support application on any ground, other than a ground that the person is, or is not, a parent of the child. See 4.1.2 for more information about objecting to child support application decisions.

A person assessed in relation to the costs of the child who believes that they are not a parent of the child must apply directly to a court for a declaration under CSA Act section 107 (Bixby and Farraday (SSAT Appeal) [2009] FMCAfam 647). See 4.3.2 for further information on declarations under CSA Act section 107.

Once the application is accepted, the Registrar cannot cancel an assessment because the payer and payee agree that the payer is not a parent (Child Support Registrar and Z and T [2002] FamCa 182) or there is better evidence. If a payer or payee later advises the Registrar that they have more evidence about the parentage of a child they should be advised of their right to apply to a court for a declaration under CSA Act section 107. Alternatively, the payee may be able to elect to end the assessment (2.10.2).

If the application was refused because the Registrar was not satisfied that the person, who was to be assessed in respect of the costs of a child, was a parent of the child, the applicant can apply directly to a court for a declaration under CSA Act section 106A (see 4.3.2). Or, if the applicant is able to produce new information that would satisfy one of the presumptions of parentage in relation to the person to be assessed in respect of the costs of a child, they can make a new application using that new information. If a new application is made, any resulting assessment will only run from the date of the new application.

WA ex-nuptial cases

All of the information in this page applies to WA ex-nuptial children.

See 1.4.3 for details of the date from which various provisions had effect.

Last reviewed: 8 May 2017