The Law Handbook 2024

286 Section 4: Relationships, families and young people status under the law, regardless of whether their parents were married or not. For the purposes of inheritance this applies to children whose fathers die without a will or where the will was made after 1 March 1975 (the commencing date of SoC Act), and where paternity was established before the father’s death. While the amended SoC Act provides presumption of parentage for children conceived through assisted procedures, it omits a provision for equality of status, and the transitional provisions exclude property interests or the vesting of property interests prior to the amendments. People in domestic relationships with children or step-children they wish to benefit should obtain legal advice about making express provisions for inheritance in a will. See also ‘Claims on a deceased partner’s estate’, below. Social security entitlements Benefits during and after pregnancy A woman unable to work during pregnancy may be eligible for financial assistance from Centrelink. Whether employed or not, a woman under the age of 21 years would apply for Youth Allowance. Once the baby is born, the mother may be eligible for other benefits, payments or allowances. For example, parental leave pay can be accessed by the birth mother of a newborn child if certain conditions are met. As of 1 July 2023, 30 flexible paid parental leave days are available. This offers individuals greater freedom in choosing how and when to take paid parental leave. For more details, contact Centrelink on 13 27 07. Registration of birth The BDMR Act requires that a birth must be registered within 60 days with the registrar of Births, Deaths and Marriages (see also ‘Naming a child’, in Chapter 4.5: Changing your name). The parents of a child are jointly responsible for registering their child’s birth, but registration by one parent only can be accepted (see Pidgon v Registrar of Births, Deaths and Marriages [2020] NSWCATAD 170). Both parents share the right to choose a name for their child. Where the parents cannot agree, a court can resolve the dispute. For more information, see Chapter 4.5: Changing your name. The recent case of Afchal v Registrar of Births, Deaths and Marriages [2021] NSWCATAD 24 concerned an application for the alteration of information originally recorded on a child’s birth registration. It was discussed that while section 45 of the BDMR Act permits the Registrar to correct the register, there must be an error before there can be a correction. Because the information registered correctly reflected the parents’ names at the time of birth, there was no error and therefore nothing to correct. Registering children conceived with reproductive assistance and through surrogacy arrangements To register a child’s birth when the father is unknown, the registrar of Births, Deaths and Marriages requires the mother to provide an affidavit explaining why the father is unknown. In the case of AI or IVF through a registered fertility clinic, the mother’s affidavit must be accompanied by a letter from the clinic, confirming the circumstances of the child’s conception. Foreign birth certificates do not create a presumption of parentage. This is relevant if the mother or father is foreign and not identified on the birth certificate. In this situation, it is recommended that a parenting order be sought from the FCFCOA. As discussed above, in relation to lesbian parents, Part 15 of the ART Act has amended the BDMR Act to provide that the non-birth mother (referred to as the ‘mother’s female partner’) can be registered as a parent on her child’s birth certificate by application to the registrar (s 17A BDMR Act). The amendment came into practical operation on 1 January 2010. The application form must be jointly signed and accompanied by proof of identity and a statutory declaration by the mother’s female partner confirming her consent to the donor treatment procedure at the time the procedure took place. The provisions also apply retrospectively so existing birth certificates can be corrected to include the mother’s female partner as a parent. The relevant date for the parents’ relationship is the date the procedure took place that resulted in the child’s birth. So parents who separated at any time after their child’s birth can still apply to correct the birth certificate to include the mother’s female partner as a parent. Where a birth mother withholds her consent to the application, the non-birth mother can apply to the FCFCOA for an order effecting the correction (see s 20 BDMR Act; Dent and Rees [2012] FMCAfam 1303). Because a donor of semen is irrebuttably presumed not to be the child’s parent under