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The Family Law Act acknowledges the benefit of both parents being actively involved in a child’s life. For instance, when a court makes decisions about children, the importance of a child having an ongoing and meaningful relationship with both of their parents is one of the main considerations.

The legal framework also requires parents of children to assume certain responsibilities in relation to their children including to provide for them financially. For example, parents may be required to pay child support for their children if they are no longer living with the child’s other parent.

This means there is a lot at stake if there is doubt about who a child’s father is. For instance, a person may find themselves having to pay child support when they are unsure if they are in fact the father of that child.

If there is doubt about who a child’s father is, the court will generally be required to make a decision. The general approach a court takes is as follows:

Presumption of paternity

The Family Law Act identifies a number of situations where the court will simply presume the applicant is the father of the child.

Those circumstances can sometimes be quite obvious, such as where parties were married and a child was born during the marriage or where the ‘father’ has previously signed another legal document declaring he was the father of the child.

Rebutting the presumption

If a presumption of parentage applies, the ‘father’ will need establish that they are more than likely not the child’s father.

Most commonly, this evidence is provided by taking a paternity test. Either party to a family law dispute may request a paternity test be ordered and the Court is given the power to require parents (or the child) to submit to parentage testing where deemed necessary or appropriate.

Depending on the outcome of a paternity test, the court can then make a declaration as to the child’s parentage and this will act as conclusive evidence for other issues, such as child support assessments and the like.

This article was co-authored by Law Cadet Ben Goodhew.


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