Secretly taking ovulation-stimulating injections, unmarried pregnancies, using a child to secure status, forcing divorce, dividing assets, grabbing custody, demanding support payments. These plot lines, sensational as they are, have played out countless times in film and television dramas.

However, the real-world cases are every bit as striking as the dramas — and can leave you utterly astonished. Can you imagine that some so-called “socialites” have built their fortunes by deliberately using ovulation-stimulating injections to get pregnant by the sons of wealthy families, then leveraging a sequence of marriage, divorce, and custody disputes to secure large assets and achieve financial freedom?

If the wealthy heir would rather not marry, that is fine too — child support payments become the “socialite’s” long-term meal ticket. If the heir would rather the child not be born, that can be arranged as well — how about we negotiate a nutrition fee and compensation for loss of youth? Some wealthy heirs have been “tricked” out of their fortunes in just this bewildered fashion. Of course, the word “tricked” is not entirely accurate — from a strictly legal standpoint, these so-called “socialites” cannot necessarily be found to have broken any law.

We have previously discussed the Australian legal issues around property division after a couple separates. Today, let’s talk about child support and the determination of parentage.

First, one point must be made clear: in Australia, parents have a duty to support their children. Even if the parents are already divorced, or were never married in the first place, this duty of support still applies.

For the parent who does not live with the child, this duty of support is reflected primarily in financial support.

For example, if the parents divorce and the child lives with the mother, the father is required to provide financial support for the child, known as “Child Support”. Child Support is generally paid on a recurring basis, such as monthly or annually.

However, this does not mean that such periodic payments are the entirety of “Child Support”. Alongside the recurring payments, there may also be lump-sum payments for special purposes — for instance, to cover the cost of sending the child to a private school.

“Child Support” is not necessarily limited to cash payments either. Transferring certain assets, such as real property, into the child’s name can also fall within the scope of “Child Support”. “Child Support” arrangements can be made by private agreement between the parents. If the parents cannot reach an agreement, they can also ask the relevant government body (the Department of Human Services) to arrange an agreement for them. A party who is dissatisfied with the outcome can also bring the matter before the courts.

In short, Australian law takes the protection of children extremely seriously, and parents are required to shoulder their duty to support their children.

By this point, readers should appreciate that if a wealthy heir “unexpectedly becomes a father”, then regardless of whether he is married to the child’s mother, he must bear the responsibility of supporting the child — and may well pay a heavy financial price for it.

That said, in most sensational drama storylines the character in question will bellow, “That child isn’t mine!” What follows is a bloody power struggle within the wealthy family, the heartbroken mother, in utter despair, taking the child and vanishing under an assumed name to a distant place. Twenty years later, the child has grown up, entering the scene with their own BGM and slow-motion shots, with one line forever on their lips: “What’s mine, I will take back”…………… 

Apologies, that digressed. As sensational as the storyline is, it genuinely touches on a very serious legal issue: a necessary precondition to bearing “Child Support” is first proving that the person is the child’s parent.

Some may wonder: do parents really need to be proven? In fact, yes — this does need to be proved. When applying for a government Child Support assessment, the first essential step is to establish parentage (Proof of Parentage).

You might think that proving parentage is a simple matter — if there’s a dispute, just do a DNA test. That’s true: a DNA test is indeed one way to resolve a parentage dispute, but this approach often lacks practicality.

Consider this: if the man claims he is not the child’s father, and the mother has no choice but to apply to the government for a Child Support assessment, what will the government do? Require the man and the child to undergo a DNA test? What if the man refuses to cooperate? Might the process not take a very long time? These practical obstacles mean that DNA testing is not the first-choice measure for establishing a child’s parentage.

On the contrary, when conducting a Child Support assessment, the government agency does not accept DNA test results as the basis for determining parentage. DNA test results are used by the courts as the primary basis for determining parentage, while the government agency will make a default inference about the child’s parentage based on the available evidence — this is known as the Presumption of parentage.

Before the Family Law Act was enacted, the presumption of parentage was based on certain case law and the social conditions of the time, and at one point illegitimate children were even considered to have fewer rights than children born within a marriage.

In Australia today, the presumption of parentage has developed into a comprehensive legal framework that addresses a wide range of situations, including the complexities that may arise from children born to single parents or same-sex partners, and taking into account advances in reproductive technology and the increasingly common use of surrogacy.

First, if a child is born during a marriage, both spouses are automatically presumed to be the child’s parents.

If the child’s parents were not married, then provided the father and mother were living together during the period from 44 weeks to 20 weeks before the child’s birth, parentage will be presumed accordingly.

Of course, if a valid legal document records the child’s parents — such as a birth certificate — parentage will likewise be presumed directly on that basis.

In addition, adopted children, although they have no biological relationship with their parents, will have their parentage presumed directly on the basis of the relevant adoption documents.

The law also sets out specific provisions on questions of parentage in relation to same-sex marriage, surrogacy, IVF, and similar situations.

These are the bases on which the government agency determines parentage. All the parties need to do is provide the corresponding evidence; the government agency will then assess it, make the corresponding determination of parentage, and decide whether to proceed with a Child Support assessment.

Of course, the wealthy heir in the sensational storyline may push back: does a child born during a marriage have to be mine? Does a child born during cohabitation have to be mine? Does a birth certificate really prove a blood relationship? For such a serious matter, not even DNA evidence is accepted — is the government really that irresponsible?

In truth, the government agency really does not take such rebuttals into account. Here readers need to understand Australia’s separation of powers: the government agency can, in simple terms, be thought of as operating on the principle of “administration according to law”, or, in plainer language, “going by the book”.

The law requires parentage to be determined in this way, and so the government determines it that way. If you disagree, you can appeal to the relevant authority or to the courts — the government agency is not responsible for resolving disputes. To put it plainly: the government is responsible for going by the book, and the courts are responsible for resolving disputes.

So if a party is unhappy with the government’s default presumption of parentage and appeals to the court, what will the court do?

In most cases, the court, when faced with a dispute of this kind, will order DNA testing to determine true parentage.

However, the courts also face many special cases in which parentage cannot be determined by simply applying a technical method. For example, in the Masson case, although Masson, as a sperm donor, had a biological link to the child, under New South Wales law Masson was not considered the child’s father in law — that is, Masson did not bear any duty to support the child.

However, Masson maintained a close relationship with the child throughout and visited frequently. In the end, the High Court of Australia recognised Masson’s status as the child’s father, and did not treat him as a mere sperm donor.

In its reasoning, the High Court held that the ordinary, accepted English meaning of the word “parent” is a matter of fact and degree, to be decided according to the ordinary, contemporary understanding of the word “parent” and the relevant facts and circumstances of the case.

No matter how sensational the storyline, a parent’s duty to support their child does not change. In any event, a child should never be used as a tool to achieve other ends.

If you have any questions about child support matters, you are welcome to consult NS Legal. Our experienced family lawyers will help design the solution that best suits your situation.