Surrogacy / Adoption / Parentage

SURROGACY

Surrogacy might be an option for couples who are otherwise unable to conceive children naturally.

Surrogacy refers to an arrangement where a “surrogate mother” agrees to give birth to a child on behalf of the child’s “intended parents”.

With the exception of the Northern Territory, each state and territory has its own surrogacy laws.

At family law, the child’s “intended parents” will be afforded the same rights as a biological parent if the court makes an order for parental responsibility or (less commonly) a declaration of parentage.

If you intend to become a surrogate parent, or you would like more information about surrogacy, please contact our family law department on (07) 55 921 921 to set up a free initial consultation with one of our family lawyers.

ADOPTION

A child is adopted when they legally become recognised as part of a family. At that point, the non-biological parents are given parental responsibility for the child, and the child will assume all rights and privileges as a birth child (including the right of inheritance).

Adoption is recognised when a formal adoption is sought by the parents pursuant to the laws of the relevant state or territory.

Single parent adoption is permitted in all states and territories except Victoria.

Same sex adoption is permitted in all states and territories except the Northern Territory.

In the alternative, an individual known to the child (for example, a child’s grandparent) can make an application to the court, pursuant to family law, to request an order that they have parental responsibility for the child. At family law, such an order would have to be found to be in the best interests of the child. Generally, the court recognises the benefit to the child of a meaningful relationship between the child and their biological parents, however in extreme circumstances, such as if the child has experience abandonment or harm, the court can order otherwise.

For more information about adoption, please contact our family law department on (07) 55 921 921 to set up a free initial consultation with one of our family lawyers.

PARENTAGE

In Australia, by law there is a presumption that a child’s parents will have joint parental responsibility for all long-term decisions in relation to how that child lives their life.

In some instances, where one or both of the child’s parents are not obviously known, it might be necessary to determine the identity of the parents, and therefore who has parental responsibility.

PATERNITY TESTING

The paternity of a child is presumed by the court in most circumstances. The mother of the child will is quite obviously the woman who gives birth to the child. In respect to the father, there is a presumption that a male is the biological father of a child if:

  • He is named as the father on the birth certificate;
  • He was living with the mother of the child at any stage between 44 weeks prior to the birth and 20 weeks prior to the birth of the child;
  • He was married to the mother at the time the child is born; and/or
  • He adopted the child.

PATERNITY TESTING

If there is a dispute as to the paternity of a child, an application can be made to the court to request that the court makes a declaration as to a child’s parentage based on the available evidence. An affidavit would need to accompany the application to put into evidence:

  • The nature of the current relationship between the mother and the father;
  • The history of the relationship between the mother and the father;
  • The circumstances surrounding the pregnancy; and
  • The reasons that the person believes they are or are not the biological father.

If there are parenting matters before the court, parties are able to make an application for the court to order DNA testing to determine whether the man is the biological father. This would be considered a primary piece of evidence to contest or prove whether a person is the biological parent, and the findings from such a test are quite difficult to refute.

The court will only order DNA testing if it relates to a current parenting matter and if obtaining a DNA test is in the best interests of the child. If a person refuses to take the DNA test, the court can make an inference that the refusal is based on the fact that the result of the test is likely to be positive.

Any declaration made by the court can be provided to the Child Support Agency to determine matters of child support.

For more information, see surrogacy and adoption.

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