(Published in Child Support Update, Vol 2 Pt 3 (June 2012) of the Family Law Review)
By Debbie Hayer
Senior Advisor, Department of Human Services
Child support is generally only payable by a biological or adoptive “parent” of the child. The Australian Government Department of Human Services cannot accept an application for a child support assessment unless it is satisfied that the applicant and the other person listed in the application are both “parents” of the child. The Child Support Registrar will only be satisfied that a person is a parent if one of the nine specific conditions set out in s 29(2) of the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act) is met. For example, the Registrar will not be satisfied that a person is a parent of a child simply on the basis of paternity test results. The Registrar needs more than just the result of a paternity test. If a court orders a paternity test and then makes an order based on the results, however, this would potentially satisfy s 29(2)(c) (see below), in which case the Registrar would be satisfied that parentage was established for that parent.
WHO IS A PARENT?
In establishing who is a parent for the purposes of child support, the Registrar relies primarily upon the common meaning of the term, ie the biological mother/father as well as adoptive parents. However, in line with the 2009 changes to the Family Law Act 1975 (Cth) introduced by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 (Cth), the Registrar may also consider ss 60H and 60HB of the Family Law Act to define who is a parent.
Section 60H: Artificial conception
Section 60H of the Family Law Act sets out that a woman who gives birth to a child following an artificial conception procedure is legally a parent of that child. Further, if the woman was married or in a de facto relationship (same sex or opposite sex) and the partner consented to the procedure, the partner is also a parent of that child. Issues arise, however, where a partner has not consented to the procedure. In such a case the party disputing parentage will need to prove in court that they did not consent to the procedure.
Section 60HB: Surrogacy
Section 60HB of the Family Law Act relates to children born as a result of surrogacy arrangements. In such cases if a court has made an order under a State or Territory law declaring that a person or persons are parents of the child born under such an arrangement then, for the purposes of child support, these people are also considered to be parents.
PRESUMPTIONS OF PARENTAGE
Section 29(2) of the Assessment Act, sets out the nine conditions under which the Registrar can be satisfied that a person is a parent as follows:
(2) The Registrar is to be satisfied that a person is a parent of a child only if the Registrar is satisfied:
(a) that the person is or was a party to a marriage and the child was born to the person, or the other party to the marriage, during the marriage; or
(b) that the person’s name is entered in a register of births or parentage information, kept under the law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, as a parent of the child; or
(c) that, whether before or after the commencement of this Act, a federal court, a court of a State or Territory or a court of a prescribed overseas jurisdiction has:
(i) found expressly that the person is a parent of the child; or
(ii) made a finding that it could not have made unless the person was a parent of the child;
and the finding has not been altered, set aside or reversed; or
(d) that, whether before or after the commencement of this Act, the person has, under the law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, executed an instrument acknowledging that the person is a parent of the child, and the instrument has not been annulled or otherwise set aside; or
(e) that the child has been adopted by the person; or
(f) that the person is a man and the child was born to a woman within 44 weeks after a purported marriage to which the man and the woman were parties was annulled; or
(g) that the person is a man who was a party to a marriage to a woman and:
(i) the parties to the marriage separated; and
(ii) after the parties to the marriage separated, they resumed cohabitation on one occasion; and
(iii) within 3 months after the resumption of cohabitation, they again separated and afterwards lived separately and apart; and
(iv) the child was born to the woman within 44 weeks after the period of cohabitation but after the dissolution of the marriage; or
(h) that the person is a man and:
(i) the child was born to a woman who cohabited with the man at any time during the period beginning 44 weeks and ending 20 weeks before the birth; and
(ii) no marriage between the man and the woman subsisted during any part of the period of cohabitation; or
(i) that the person is a parent of the child under section 60H or section 60HB of the Family Law Act 1975.
Of these nine factual situations, two situations appear to cause the greatest confusion in terms of how they can be satisfied.
Register of births (s 29(2)(b))
The Registrar will accept a verbal confirmation from a person that they are named as a parent of a child in a register of births, as this is sufficient to satisfy the presumption of parentage for child support purposes. Further, the Registrar will accept a statutory declaration from one person declaring that another person is named as a parent on a child’s birth certificate to establish that the other person is also a parent. However, if there is any concern regarding such a statutory declaration, ie if the other parent disputes such a claim, then the Registrar may require a copy of the birth certificate.
Court finding of parentage (s 29(2)(c))
To satisfy the issue of parentage some applicants may provide a number of orders made by the Family Court, including property and parenting orders. However, unless one of the two specific tests in s 29(2)(c) are met the Registrar cannot accept such orders.
The first test is that the court has expressly found that the person is a parent of a child. For an order to be regarded as an express finding of parentage, the order would need to state words to the effect that, eg “John Smith is the parent of Able Smith”.
The second test requires the court to have made a finding that could not have been made unless the person was a parent. However, problems can arise when parentage cannot be inferred by the nature of the order. For example, third-party carers can apply for parenting orders and the making of a parenting order is not dependent on whether or not a person is the father/mother. However, if the court orders a person to support a child because the Family Law Act establishes that the parents have a legal duty to support their children, a court could not do so unless it was satisfied that the person was in fact a parent.
It must be remembered that in terms of presumptions of parentage, the Registrar is making an administrative decision whereby existing authorities are identified that show a person to be a parent of the child. Those authorities will be accepted as being correct, unless proven otherwise, when considering whether or not to accept an application for assessment.
If at least one of the conditions in s 29(2) is satisfied, the person will be taken to be a parent until a court rules that they are not. Section 107 of the Assessment Act (Declaration that a person should not be assessed in respect of the costs of the child) provides an avenue for a declaration to be made by the court in such cases where a person disputes the finding that they are a parent.
If the Registrar refuses to accept an application for assessment on the basis that the Registrar is not satisfied that a person to be assessed in respect of the costs of a child is a parent, the parties have the option of applying to a court for a declaration under s 106A of the Assessment Act (Declaration that a person should be assessed in respect of the costs of the child).
Further information on parentage is available from http://www.guide.csa.gov.au
Citation: (2012) 2 Fam L Rev 185