Paternity

Contributed by AditiSrinivas, as amended by Joseph Cavanagh and KimZindel and current to June 2025

Paternity of a child may be an issue in child support matters, family law matters and matters relating to wills and estates.

There are legal presumptions as to paternity set out in the Family Law Act 1975 (Cth) (FLA) [ss. 69P, 69T], e.g. a man is considerd the father if a mother was married to or lived with him 44 weeks before the birth. However, these presumptions can be rebutted [FLA s. 69U]. Similar presumptions of paternity are applied when child support is assessed [Child Support (Assessment) Act 1989 (Cth), section 29].

The best way to resolve the issue of disputed paternity is for the parties to undergo paternity testing.

Paternity Testing

The Federal Circuit and Family Court of Australia (both Divisions 1 and 2) (“FCFCOA”) and the Supreme Court of the Northern Territory have the power to order DNA testing to help prove paternity [FLA s. 69W, Status of Children Act 1978 (NT) ss.11, 12, 13]. Paternity tests have a high degree of accuracy but they are expensive (approximately $700 - $1,000) and the court can order parties to share the costs. If the test proves positive, the court can order the father to repay the mother's share of the costs. Many men will admit to paternity when faced with the prospect of being tested. A man who agrees he is the father should be asked to sign a form called an Acknowledgment of Paternity , which can be obtained from the Registrar of Births, Deaths and Marriages. This allows the birth certificate to be changed to include the father's name and is also strong proof of paternity should a dispute arise again.

It should be noted that if the father's name is not on a child's birth certificate but the DNA test results show him to be the father, the test results on their own are not enough for the Child Support Agency to accept that he is the father or for the Births Deaths and Marriages Registry to change the birth certificate. If the father still refuses to sign an Acknowledgment of Paternity after the positive test results have been received, then the mother will have to use the evidence of the test results to apply to a court for a declaration that the man is the father of the child. The court should also declare that the mother was entitled to an administrative assessment of child support and that the Registrar of Births Deaths and Marriages Registry shall enter the father's name on the child's birth certificate.

Artificial Conception

The legal situation with regard to parentage can become more complicated if the child is born as a consequence of artificial conception procedures. According to FLA s. 60H, the birth mother and her spouse or de facto partner are usually considered the parents of the child, and not the donor of the reproductive material (sperm or egg).