The Law Handbook 2024

Chapter 4.3: Same-sex and de facto couples and families 285 The issue was the relationship between section 60H of the FL Act and section 14 of the SoC Act NSW. On appeal, the court decided that section 60H of the FL Act does not ‘otherwise provide’ within the meaning of section 79 of the Judiciary Act and therefore section 14 of the SoC Act NSW must apply. The court also found that section 60H of the FL Act does not enlarge the category of people entitled to the status of ‘parent’. The court emphasised that, as there can only be two parents for the purposes of the FL Act, this creates doubt as to whether Groth and Banks is still applicable. It was therefore held that the primary judge erred in finding the respondent to be a legal parent of child B. In cases involving commercial surrogacy, paternity cannot be established through DNA testing. In Bernieres and Dhopal [2015] FamCA 73, the court ruled that it had no power to order a paternity test as under section 69V of the FL Act; the court only has authority to order the test if paternity is an issue in question before the court. This issue was not overruled on appeal and was affirmed in the later case of Lamb v Shaw [2017] FamCA 769. Section 69VA is not a stand-alone power used to remedy issues with section 60HB. In the case of surrogacy agreements, this is not the case. Furthermore, Justice Watts in Re Michael (2009) 41 Fam LR 694 confirmed that parental orders given under Commonwealth legislation can only be made in accordance with state legislation. Consequently, section 60HB of the FL Act does not give the court power to grant legal parentage to the biological parents in commercial surrogacy agreements, as this would be inconsistent with state parliament intentions, given that there is no Victorian law allowing for legal parentage of children born through commercial surrogacy. Parentage under the Status of Children Act Under the SoC Act (s 5), a husband is presumed to be the parent of children born to his wife, and children born up to 10 months after the marriage dissolves. Alternatively, paternity can be established by any of the following: 1 the name of the father being entered in the Register of Births and hence on a birth certificate (s 8(1)); 2 the father and mother jointly signing a statement in the presence of a solicitor stating that he is the father; that is, an acknowledgment of paternity is made in accordance with section 8(2). This statement should be forwarded to the registrar of Births, Deaths and Marriages; or 3 a Supreme Court declaration of paternity (s 10). In AED v Registrar-General of Births, Deaths and Marriages; AED v GWK [2019] QSC 287, pursuant to section 10 of the Status of Children Act 1978 (Qld), it was declared that the deceased (CDJ) was a parent of the applicant. In this matter, the applicant had been sexually abused by her adoptive father throughout her childhood and wanted to identify her biological father and obtain a declaration of parentage in favour of her biological father. If the man denies that he is the father, evidence must be given that corroborates the mother’s evidence. Until paternity is proven, he is not required to pay child support. Corroboration is not necessary if the alleged father is in court and does not give evidence on oath denying the allegation. Also note that corroboration of the mother’s evidence is not necessary if the alleged father is not present, but the court is satisfied that he was served with a summons. A court order can be set aside later if it can be proven that the father was not served with a summons. Evidence from someone who saw intercourse taking place is uncommon. Usual corroboration is: 1 evidence of admissions by the defendant; 2 denials by the defendant relating to the circum­ stances that are shown to be false; and 3 evidence of payments (or agreements to pay) made by the defendant. Blood tests can only be carried out if all parties agree to them. They can now provide positive proof of paternity if a sophisticated form of testing is used. This is known as genetic tissue typing and in particular human leucocyte antigen testing. The usual requirements as to expert witnesses apply and a court must be satisfied on the balance of probabilities that the defendant is the father (s 10). As noted above, blood tests may be ordered by a court and adverse inferences drawn from a refusal to take such a test. See ‘Parenting presumptions and AI/IVF’, ‘Assisted reproductive treatment’ and ‘Surrogacy’, all above, for discussion of parentage presumptions for children conceived with reproductive assistance or through surrogacy. Inheritance The SoC Act provides that all children who have a mother and a father (actual or presumed) are of equal