2.2.4: Parentage

Context

CSA cannot accept an application for a child support assessment unless it is satisfied that the liable parent named in the application is a parent of the child.

Legislative references

Sections 5, 25, 29(2) and 29(3) Child Support (Assessment) Act 1989

Section 60HFamily Law Act 1975

Explanation

The term a 'parent' has its common meaning. It also includes (section 5):

• an adoptive parent, and
• if the child was born as the result of an artificial conception procedure, a parent of the child under section 60H of the Family Law Act.

When a carer applies for a child support assessment CSA can be satisfied that the person they seek child support from is a parent of a child only in 8 fact situations (section 29(2)):

• the child was born while the person was married to the child's mother or father. A child is born during a marriage even if the parties to the marriage have separated as long as a divorce is not finalised (i.e. 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 prescribed overseas jurisdiction. CSA needs to sight a copy of the birth certificate or the applicant must provide a statutory declaration stating that the person they named as the liable parent is recorded as a parent on the child's birth certificate.
• an Australian court, or a court of a prescribed overseas 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 prescribed overseas jurisdiction (See chapter 1.5), such as a statutory declaration under the Oaths Act of an Australian state, acknowledging that they are the child's father or mother, and that instrument has not been annulled or set aside.
• the person has adopted the child.
• the person is a man and the child was born within 44 weeks of his marriage to the child's mother, which has since been 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. Cohabitation involves living together in a domestic relationship. CSA can consider the financial and social aspects of the relationship, the nature of the household and the sexual relationship between the 2 people, in deciding whether they cohabited.

CSA cannot be satisfied that a person is a parent of a child solely on the basis of the results of paternity tests, or a person's verbal acknowledgment of parentage. Only a court may determine that it is satisfied of a child's parentage on the basis of other evidence.

Conflicting evidence

CSA does not need to conduct enquiries or make investigations. However, if evidence is available under more than one of the paragraphs in section 29(2) and the evidence conflicts, CSA can choose which person is more likely to be a parent of the child (section 29(3)). CSA does not have to be satisfied a person is a parent when one of the 8 fact situations exists if there is conflicting information which casts doubt on a child's parentage.

CSA can take into account other types of evidence when making a decision about conflicting evidence. CSA 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.

If either parent believes that CSA should not have accepted an application, as there is no evidence that the payer is a parent, they can object to the decision to accept the application.

A payer who believes that they are not a parent of a child can apply directly to a court for a declaration under section 107 of the Assessment Act (See chapter 4.3).

Once CSA has accepted an application, it 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 have better evidence. If a payer or payee later advises CSA that they have more evidence about the parentage of a child they should be advised of their right to object, to apply for an extension of time to object and/or to apply to a court. Alternatively, the payee may be able to elect to end their assessment.

A payee who is unable to provide proof of parentage is no longer required to lodge an objection to CSA’s decision not to accept the application for an administrative assessment. Instead, the payee is able to take the matter directly to court to seek a s106A declaration (See chapter 4.3.2)

A child born as the result of an artificial conception procedure

A person who is a parent under section 60H of the Family Law Act is also considered a parent for the Assessment Act.

Section 60H applies to children born as a result of artificial conception procedures. A woman who gives birth to a child following an artificial conception procedure is legally that child's mother. If she was married and her husband consented to the procedure, he is the child's father. If she lived with a man as husband and wife on a genuine domestic basis, and he consented to the procedure, he is the child's father. A woman's husband or partner is presumed to consent to the procedure unless it is proved, on the balance of probabilities that he didn't.

In Western Australia, state laws provide for a woman's same-sex partner to be recognised as the other parent of a child born as a result of an artificial conception procedure. The birth mother is a parent in the ordinary meaning of the word, however, the same-sex partner is not a parent under section 60H of the Family Law Act and is therefore not a parent for the purposes of the Assessment Act. The same sex-partner may apply to a court in Western Australia for an order for child maintenance under the Family Court Act 1997 (WA).

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Version 1.6

Issued 23 January 2008

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