There are many legal elements related to being a father in Australia, such as parenting time and responsibility, custody and paternity disputes.
Although under review, the current legislation, the Family Law Act 1975 (“FLA”) includes a presumption that each parent has equal shared parental responsibility. The legislation does not give preference to one parent, or the other parent based on whether they are the mother or the father.
This presumption usually exclusively applies to biological or adoptive parents of a child and generally not step-parents.
Establishing Paternity: Legal Methods and Processes
According to the FLA, a man will be presumed to be the father of a child where any of the following apply:
- he is named on the birth certificate as the father;
- he has executed a document, such a statutory declaration, acknowledging that he is the father;
- a court has made the finding that he is the father;
- he was married to the mother of the child at the time the child was born; or
- he lived with the mother of the child at any time between 44 and 20 weeks before the birth of the child.
Where one of these presumptions apply, a man will be deemed the father of the child unless he can prove otherwise, usually with a DNA test.
A court can grant a DNA testing order but will only do so if they are satisfied that there is genuine doubt regarding the child’s parentage, such as the timing of the child’s conception, or the physical characteristics of the child.
The findings from the DNA test will have impacts on child support issues and parenting disputes.
Child support cannot be disputed through Services Australia with a DNA test alone, the court needs to have made an order as well before Services Australia can cancel child support.
Rights to Visitation and Custody for Fathers
Although many people still believe that mothers are prioritised when it comes to custody and visitation, this is simply untrue.
The FLA ensures neither parent is given priority over the other based on gender.
Where one parent is withholding access to the child from the other parent, it may be necessary to apply to the Federal Circuit and Family Court of Australia for parenting orders.
When a court is determining who a child should live and spend time with, the paramount consideration is what is in the best interests of the child, and to protect the child from harm.
Where parties cannot decide the best parenting arrangements between them, the court will determine the most appropriate arrangement based on a number of factors such as the age and needs of the child.
One parent cannot deny the other parent access to their child, only a court can make orders to this effect.
Obligations for Child Support and Financial Care
Both parents have a duty to support their children financially. The financial support that both parents pay may not be equal, as this figure is dependent upon income and the amount of time that the child spends in each parent’s care.
Child support will likely be paid by the parent who earns more and/or the parent who spends less time with the children.
Child support is calculated by Services Australia using a complicated formula. As mentioned above, usually only biological parents are required to pay child support so for fathers questioning the parentage of a child, it may be worthwhile to seek a court order for DNA testing.
A court may order a non-biological parent to pay child support in limited circumstances, as per section 66M of the FLA which states that in some cases, a step-parent may have a duty to pay child maintenance.
Parents are required to pay child support at least until the child turns 18.
A court may make orders for child maintenance extending beyond a child’s 18th birthday if the child requires additional support, for example if they’re studying full time or have a disability.
If you refuse to pay child support, payments may still be deducted through other means such as through the Australian Tax Office from your tax rebate.
In severe cases, Services Australia may prevent a person from leaving the country for avoiding their obligations to pay child support. Criminal charges may also be brought.
Challenges and Disputes in Paternity Cases
It is important to remember as mentioned above that where a man is presumed to be the father, a DNA test showing that a man is not the father of a child is not sufficient for Services Australia to cancel child support, there also needs to be a court order ordering the cancellation of child support. This means that simply obtaining DNA test results indicating a man is not the father of a child is not enough to stop paying child support. So regardless of any DNA findings, or the willingness of all parties to participate in DNA tests, the Court will need to be involved in the process.
Issues may also arise where a court is not satisfied that there is any evidence to warrant making DNA testing orders.
The Roles of a Family Lawyer in Paternity Matters
Paternity matters can be complicated and require legal advice from an experienced family lawyer, especially where these issues are related to parenting arrangements and child support.
You may jeopardise your case and achieve a worse outcome if you forego seeking reputable advice.
Family lawyers can provide advice, draft relevant legal documents and ensure you are best represented in court if required.
Fathers have the same rights as mothers in the Australian legal system. It is important to seek advice if you are concerned about paternity, parenting and child support.
At Matthies Lawyers, we are here to cater to your family law needs. Our team of family lawyers proudly serves clients in South Yarra, Toorak, Windsor, Prahran, Armadale, and Richmond.
Contact us today for expert legal advice and support or call +61 3 8692 2517.
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Kate Scolyer – Solicitor– Matthies Lawyers
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.