Many of the key matters of the cases that come before the Family Court relate to children and by extension the parents of those children. In the majority of these cases there is no ambiguity as to who the parents of those children are, however, many family lawyers are involved in cases where the parentage of a child is disputed.
By disputed, it can either be the case that someone who the mother claims is the father and therefore has responsibilities to the child including financial ones, disputes her claim. In effect, they are saying that they are not the father, and thus any parental or financial responsibilities for the child are not his.
Conversely, it could be that someone who believes they are the father of a child and wishes to have contact with them has their claim disputed by the child’s mother, who states that someone else is the child’s father.
Obviously, the person stuck in the middle of these is the child, and when matters like this go to the Family Court, its overriding legal obligation, as laid down by the Family Law Act of 1975, will be to ensure that the best interests of the child are served.
Within Australian family law, there is a concept known as presumed parentage which is often used and referred to in order to settle disputes with regards to the parental responsibilities individuals have towards their children.
The framework around which presumed parentage operates is one that courts and agencies that are involved with the welfare of children will use to make presumptions about who a child’s parents are. Again it is our old friend the Family Law Act which modernised the legislation with regards to parentage, which had previously avoided considering children born to unmarried parents, or marriage between same-sex couples.
There are a number of factors which the Family Law Act lays out as evidence that points to the presumption of parentage, and by the same token if someone can show that one of these factors did not exist it might prove that they should not be presumed to be the parent.
The first of these factors is marriage, and as such, the man whom a woman is married to at the time of the child’s birth will be presumed to be the child’s father.
In circumstances where a couple was cohabiting, but not married, then the presumption of parentage applies to the father if he lived with the child’s mother in the period between 44 weeks prior to the child’s birth and did so up to a period of no less than 20 weeks prior to the child’s birth.
Despite these, a father can still challenge the presumption that he is a child’s parent, and the most significant way that can be done is by requesting a DNA test. A court order might be required in order to obligate a mother to take a DNA test who refuses to do so , nor is willing to allow her child to have one too.
Legal help and advice should be sought from family lawyers as the implications of a DNA test either proving or disproving parentage is significant, not just for each parent, but especially any child who has to go through this process. This is also advisable so that the proper steps are taken to ensure there is no legal reason why a court would not accept the DNA test results.
