Wong on Family Law

Select topics on Family Law in Australia -- Parentage

Work-in-progress, 11 April 2025 (last updated)


[A] Parentage - Family Law Act 1975

> "The applicant in this case, a Malaysian national and resident of that country, seeks a declaration pursuant to s 69VA of the Family Law Act 1975 (Cth) (“FLA”) that the respondent is the father of her 16 year old daughter, E, (“the child”). She also seeks an order pursuant to s 66G of the FLA, consequent upon such a declaration, that the respondent pays $600 per month by way of maintenance for the child. 2.           The respondent claims he is not the father of the child and opposes the application for a declaration of paternity. He also opposes the application for child maintenance even if the declaration of paternity is made. He does so by reference to s 66E of the FLA which prevents the Court making a child maintenance order if an application could be properly made under Australian child support legislation for a child support assessment. ... .... .... Section 69VA of the FLA empowers the Court to decide the issue of paternity after hearing evidence and to issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth. The reference to “the Commonwealth” is, of course, a reference to the Commonwealth of Australia, not the Commonwealth of Nations of which both Australia and Malaysia are members.": Nandi v Listberg [2013] FamCA 419, [1]-[2], [4]. 

> see also, 'Misattributed Paternity, Child Support and Paternity Testing' (Hooper & Mill, Webpage) <https://hooperandmillfamilylawyers.com.au/misattributed-paternity-child-support-paternity-testing/>, archived at <https://archive.md/xcluB>. 

> see also, effect on Child Support, etc: Mike Emerson, 'DNA and the Law - Child Support Implications and Recovery of Monies Paid' (Emerson Family Law, Webpage) <https://emfl.com.au/our-publications/dna-and-the-law-child-support-implications-and-recovery-of-monies-paid/>, archived at <https://archive.is/LV5rW>.  

> "Another question which arises in these proceedings is whether there is a power to make a paternity declaration where there are no other proceedings current.  The applicants submit there is.  There are specific provisions of the Family Law Act which give courts power to make declarations. Section 113 gives power to make a declaration in proceedings for a declaration of validity of a marriage or for dissolution or annulment of a marriage. Section 78 gives power to make declarations as to interests of parties in property. Section 55A provides for a declaration to be made in divorce proceedings regarding arrangements for children under 18. The only provision in the Act regarding parentage declarations is section 69VA.  It provides: As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth. That power is not a free standing power.  It is clearly expressed to be dependent upon there being proceedings before the court in which the parentage of the child is already an issue.  The insertion of section 69VA implies that the parliament considered there was no separate power in the Act at that time to make a declaration of parentage.  Section 69VA is the only express power to make a parentage declaration.  There is no express power to make such a declaration except in proceedings in which the parentage of the child is already in issue.": McK and K & O [2001] FamCA 990, [28]-[30]. 

> "Section 69VA of the Act states as follows: FAMILY LAW ACT 1975 - SECT 69VA Declarations of parentage As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth. In McK and K v O (2001) FLC 93-089 Mullane J stated (at [30]): …The insertion of section 69VA implies that the parliament considered there was no separate power in the Act at that time to make a declaration of parentage. Section 69VA is the only express power to make a parentage declaration. There is no express power to make such a declaration except in proceedings in which the parentage of the child is already in issue. This was confirmed by Berman J in Bima and Anor [2014] FamCA 1170 (“Bima”) when His Honour stated (at [17]) “I do not consider that s 69VA can stand alone. Rather, I consider that it is by way of ancillary relief following an application in this court directed to the issue of parentage.” Although the applicant has reserved his right to particularise the relief he seeks until the child’s return to the Commonwealth of Australia he seeks both final and interim parenting orders and the child’s return to Australia. The parentage declaration is ancillary to those parenting orders. In Bima Berman J continued as follows: 19. Section 69VA did not always form a part of this section of the Act. It was included specifically to give effect to proceedings that related to a parentage dispute. That is, once evidence has been presented to the court that determined the parentage of a child or children, the issue thereafter was how that would be recognised. Prior to the inclusion of s 69VA in the proceedings, there was no mechanism for that process. When determining whether to make a parentage declaration pursuant to s 69VA of the Act the court must have regard to the evidence which includes the evidence of the parties and in many cases will include a parentage test [Sheldon & Meriton [2020] FamCA 231].": Robinson & Bale (No. 2) [2021] FamCA 66, [24]-[28].

> "67. "His Honour then turned to consider s 69VA of the Act, and although we have set out above the relevant paragraphs where his Honour arrived at his conclusion, we consider it necessary to set them out again as follows: 98.          I consider that reliance upon s 69VA for the declaration as sought by the [appellants] is of no assistance and is not an independent source of power. 99.          The ability for a court to decide the issue of parentage is only to be embarked upon if an “issue” arises. The evidence that is to be received can encompass a broad category but must be focussed and directed to the determination of the “issue of parentage”. Section 69VA is directed to a determination of the biological connection that a party may have with a child and it is only thereafter that the court can consider whether to issue a “declaration of parentage”. The purpose of the declaration is as conclusive evidence of parentage for the purposes of the laws of the Commonwealth. 100.        In the present case there is no dispute or issue as to parentage.  The second [appellant] is the biological progenitor of Q.  There is no need to produce evidence of parentage pursuant to s 69V, nor to invoke the provisions of s 69W as to orders for the carrying out of parentage testing procedure, nor 69X being orders associate with parentage testing orders":  Bernieres & Dhopal [2017] FamCAFC 180, [67].

> "The word “parentage” is s 69VA was considered in Tobin v Tobin (1999) FLC 92-848. The gravamen of that decision is that s 69VA is concerned with whether a declaration of parentage should be made in favour of a biological parent. Reference has already been made to the evidence which satisfies me that Mr Bissett is the children’s biological father. For the reasons I gave at pars 78-80 inclusive in Ellison and Anor & Karnchanit [2012] FamCA 602, resolution of whether a declaration pursuant to s 69VA should be decided is driven by the children’s best interests along with other matters relevant to the exercise of my discretion. Here, the only factors relate to what is in the children’s best interests; there being no issues of public policy which might intrude into those deliberations. As was made clear by the High Court in G v H (1994) 181 CLR 387, the presumptions operate in the interests of the child. With the children’s interests at the forefront, I agree with the applicant and Mr Bissett that for an abundance of caution a s 69VA declaration of parentage should be made. It will be apparent that I have accepted that Mr Bissett is able to rely on the general presumptions of parentage notwithstanding the provisions of s 60H and s 60HB, both of which were inserted into the Act after the general presumptions. Those provisions are not directed to children born in another country to a person or people ordinarily resident in that country at the time of conception and birth. For these reasons, I am satisfied that the orders and declarations that I will make are in the children’s best interests.": Carlton & Bissett & Anor [2013] FamCA 143, [31]-[34]. 

> Gallo & Ruiz [2024] FedCfamC1F 893. 


[B] Parentage - Australian Citizenship Act

> "The Minister contends that the available evidence is insufficient to establish that the Applicant had a parent who was an Australian citizen. The Minister relies on the denial in correspondence and communications with Mr Forster that he is the father of child. The Minister also submits that it was open to Ms Ye to seek an order under the Family Law Act 1975 requiring Mr Forster to submit to a parentage testing procedure to obtain a declaration of parentage based on any refusal to undertake this (see sections 69VA, 69W and 69Y of that Act). 20.          The Minister refers to two authorities Kumar and Minister for Immigration and Citizenship (2009) 107 ALD 178 and McMullen and Minister for Immigration and Citizenship (2009) 111 ALD 475 and seeks to distinguish those cases. 21.          I accept that the circumstances in those cases were dissimilar to the present in some respects but I note that in McMullen the Tribunal was satisfied that the mother was an Australian citizen based on the mother’s evidence alone. 22.          In Kumar’s case the Tribunal found that in the circumstances it was possible to infer that the child, whom the mother claimed was hers, was not in fact her child and the Tribunal took into account the fact that she was unwilling to take a DNA test to support her claim. 23.          The Applicant’s case is simply that she relies on the evidence before me given by her mother and that of Ms Wei together with the further independent evidence of Mr Wabl, none of which was shaken in cross-examination. In addition, there was no oral evidence adduced by Mr Forster and he elected not only to refuse to undertake the DNA test, but even to appear to give evidence on oath or affirmation as to the circumstances which he asserted in his correspondence. As a result, he was unable to be cross-examined and tested as to the consistency and accuracy of his correspondence with the Department. In view of this, therefore, the assertions made by him must be given lesser weight than the sworn evidence of Ms Ye and her two supporting witnesses who appeared and were subjected to cross-examination. 24.          In the present case it is not necessary to examine the question whether any inference can be strengthened on the basis that Mr Forster has consistently refused to undertake a DNA test. 25.          I do not think any adverse inference should be drawn from the fact that Ms Ye did not seek an order under the Family Law Act 1975 as to parentage. There is no power to make a declaration as to parentage under that Act except in proceedings in which the parentage is already in issue. The power under section 69VA is not a free-standing power (see McK and K v O [2001] FamCA 990 at [28] to [30]). In the present circumstances she could not reasonably have been expected to commence such proceedings. 26.          Accordingly, since I accept without reservation the sworn testimony of Ms Ye and the witnesses who support her claim, I find that Mr Forster was in fact the biological father of Ariel and that he was at the time of birth an Australian citizen. 27.          It follows that the decision of the Minister’s delegate in this matter be set aside and that the correct and preferable decision I make is that the Applicant is eligible for Australian citizenship as a consequence of finding that Mr Forster, an Australian citizen, was her parent within s 16(2)(a) of the Australian Citizenship Act 2007. 28.          The decision under review is set aside and the above decision is substituted for that of the Minister’s delegate.": Re Ariel Gladys Forster & Minister for Immigration and Citizenship [2011] AATA 468, [19]-[28] https://jade.io/article/227659. 

> "... It is said to me that if the question of adoption is resolved favourably to the applicants, that is they are able to establish a valid and proper adoption process under Indonesian law has taken place with the successful outcome as purported, this then enables consideration under s 69VA of the Act. I do not consider that s 69VA can stand alone. Rather, I consider that it is by way of ancillary relief following an application in this court directed to the issue of parentage. Section 69V of the Act provides as follows: If the parentage of a child is a question in issue in proceedings under this Act, the court may make an order requiring any person to give such evidence as is material to that question. This section is important because it relates to a question in issue in proceedings under the Act. Section 69W sets out the provisions necessary for the carrying out of parentage testing procedures. When consideration is given to s 69VA, it provides that: As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of the proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth. Section 69VA did not always form a part of this section of the Act. It was included specifically to give effect to proceedings that related to a parentage dispute. That is, once evidence has been presented to the court that determined the parentage of a child or children, the issue thereafter was how that would be recognised. Prior to the inclusion of s 69VA in the proceedings, there was no mechanism for that process. In the decision of McK v O (2001) FLC 93-089, Mullane J had to consider the very question of whether a paternity declaration should be made where there were no other current proceedings. In that case, the alleged father was dead. His Honour found that the inclusion of s 69VA by its necessary terms implied that parliament did not concede it to be capable of reliance upon as a separate head of power. That is, there is no separate section or power in the Act to make a declaration of parentage. There is no other express power in the Family Law Act to do so. Section 69VA is the only power. His Honour was of the view therefore, that in the absence of any other proceedings relating to parentage, upon the clear terms and reading of s 69VA there is no scope for the application of the section. In relation to the current proceedings, there is no issue as to matters of parentage. There is no application or indeed, a dispute between the Court in relation to matters of parentage. Whilst it was suggested at the commencement of the proceedings that what would be put before the Court was evidence that the applicant father was, in fact, the biological parent of the child, that seems to me to be an unnecessary step. Even if I accept that what the father says is correct, and I have no reason to think otherwise, there is no dispute before the Court in respect of matters relating to the father’s parentage. The issue relates clearly to Ms Wibowo. The applicants, by the very nature of the application and the history that they provide, show and demonstrate that Ms Wibowo is not the biological parent. There is no parentage dispute. It may be that Ms Wibowo can be shown to have lawfully adopted the child. That is a matter as yet uncertain. Nothing is presented to the Court in that regard, but even if that were to be the case, in my opinion, that is not sufficient for s 69VA to be invoked. There is no dispute between the parties. There is no respondent to the proceedings and it must be assumed that the focus has nothing to do with an issue of parentage for the purposes of the Family Law Act, but rather for some other purpose, that is, not relating to parentage, but relating to matters of Ms Wibowo’s ability to gain immigration status within the Commonwealth of Australia. That process demonstratively has not been exhausted if, for no other reason, than the information that the applicants would wish to put to this Court is not yet available and presumably, has not yet been put to the Minister or the Minister’s department for his or their consideration and determination. Indeed, I have had regard to whether the process may indeed amount to an abuse of process in respect of the purpose for which the application is brought.  The general principle where an applicant seeks to obtain a result outside of the scope of the remedy was stated by Lord Evershed in Re Majory [1955] Ch 600 at page 623 and 624: …[T]he court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court and therefore disqualified from invoking the powers of the court by proceedings he has abused. It is a consideration but not a determination that this application falls into that category.  I also note the remarks of Brennan J in Jago v District Court of New South Wales (1989) 168 CLR 23 at page 47 and 48: …An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve…Although it is not possible to state exhaustively all the categories of abuse of process, it will generally be found in the use of criminal process inconsistently with some aspect of its true purpose, whether relating to the hearing and determination, its finality, the reason for examining the accused’s conduct or the exoneration of the accused from liability to punishment for the conduct alleged against him… I do not think that I need to consider further whether the application is an abuse of process. I am able to find that on the information and evidence currently presented, noting that the matter was listed for a final hearing this day, that there is no parentage dispute and as such, the submissions are dependent upon this Court, in effect, making what I describe as a stand alone declaration of parentage.  I do not consider the authorities support such a contention and I do not propose to make the declaration as sought by the applicants.": Bima & Anor [2014] FamCA 1170, [16]-[25].


© Jing Zhi Wong, 2023-2025