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Presumption of parentage

Information about when a person is presumed to be a parent by law.

  • The law changed on 6 May 2024
  • This content will be updated as soon as is possible

In the interim please consult the Federal Circuit and Family Court of Australia website or the Victoria Legal Aid Website.

There is legal presumption of parentage if the:

  • parent's name is stated on the birth certificate (or adoption certificate) of the child
  • child was born while the parties were married (unless separated and child born with donor sperm)
  • couple were living in a de-facto relationship when a child was born
  • the person lived with the mother at any time during the period between 44 weeks and 20 weeks before the child is born
  • parent signed a statutory declaration acknowledging that they are the parent, or
  • child has been adopted.

If parentage is presumed a person can challenge this by giving evidence to contradict the presumption. This is done by DNA testing, which can be done voluntarily or following a court order.

See Proof of parentage.

Lesbian couples

Parents will be legally recognised if they were in a domestic partnership and the non-birth mother consented to the treatment procedure that resulted in conception. This includes couples who separated before the birth of the child. The child's donor is not a parent.

This presumption overrides a 'father' listed on a birth certificate or even a Supreme Court declaration as to parentage.

See Status of Children Act 1974 (Vic)(opens in a new window).

More information

Legislation

Child Support (Assessment) Act 1989 (Vic)

  • s. 5—defines parent

See Child Support (Assessment) Act 1989 (Cth)(opens in a new window).

Family Law Act 1975 (Cth)

  • s. 69P—presumptions of parentage due to marriage
  • s. 69Q—presumption of parentage due to co-habitation
  • s. 69R—presumption of parentage due to registration of birth
  • s. 69S—presumption of parentage due to findings of the court
  • s. 69T—presumption of parentage due to acknowledgement (in some document)

See Family Law Act 1975—Part Vll Division 12 Sub-Div D—Presumption of parentage(opens in a new window).

Status of Children Act 1974 (Vic)

  • s. Part 3—Status of children
  • s. 13—women with female partner: presumption as to status of child
  • s. 15—women with no partner: presumption as to status of child
  • s. 45—transitional—application of part 3 (includes children born before the change to the law)
  • s. 13(1)(b)—the woman's female partner is presumed to be the legal parent of any child born as a result of the pregnancy if the partner consented to treatment
  • s. 13(2)—the presumption of parentage prevails over a conflicting presumption that arises under (registration of a birth certificate or a conflicting declaration made by the Supreme Court)
  • s. 8—evidence of parentage

See Status of Children Act 1974 (Vic)(opens in a new window).

Reference

Services Australia

Child Support Guide

Services Australia has produced a detailed guide designed to assist lawyers to support clients with the child support scheme. It is used by practitioners and includes information about assessments, collection of child support, administration and seeking a review of the Child Support Registrar's decision.

See Child Support Guide—2.1.3: Parentage(opens in a new window).

Updated