It is permissible to adopt your partner’s child in Queensland, provided the process prescribed by law is followed. 

In Queensland the governing legislation is the state Adoption Act 2009 (Qld) (“AA”) and the Commonwealth Family Law Act 1975 (Cth) (“FLA”). The adoption process is conducted in the Family Court of Australia, a Queensland Magistrates Court (“Children’s Court”) and via the government department, Adoption Service Queensland – Department of Communities, Child Safety and Disability Services (“DOCS”).

The effect of step-parent adoption is a person assumes parental responsibility and becomes a parent for the child of their married or de facto partner, while the biological parent ceases being a parent and ceases to have parental responsibility under the FLA. Any parenting orders that previously existed cease to be in force.

What is the adoption process?

The adoption process starts with an application filed in the Family Court for leave (i.e. permission) to enter your name in the expression of interest registrar with DOCS to adopt the subject child, and then make an application to the State Magistrates Court.

Section 60G FLA provides:

Family Court may grant leave for adoption proceedings by prescribed adopting parent:

  1. Subject to subsection (2)…the Family Court… may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.
  2. In proceedings for leave under subsection (1), the court must consider whether granting leave would be in the child’s best interests, having regard to the effect of paragraph 60F(4)(a), or paragraph 60HA(3)(a), and of sections 61E and 65J.

Note: Sections 60CB to 60CG deal with how a court determines a child’s best interests.

The requirements of this section were examined by Murphy J in Lowe and Anor & Clayton [2011] FamCA 1024. In this case the application was heard ex parte as the subject child’s biological father couldn’t be located. His Honour noted of the process, “It is somewhat odd that it is necessary to apply to one court for leave to apply to another court for an exercise of the latter’s ordinary jurisdiction. Nevertheless, that is the consequence of the provisions of the Family Law Act 1975.

1. FLA section 60HA(3)(a) and 60F(4)(a)
2. FLA section 61E
3.  FLA section 65J

4.  Lowe and Anor & Clayton [2011] FamCA 1024 at 3

In dealing with the ex parte application His Honour considered evidence from the mother as to the biological father’s whereabouts, her efforts to contact him, past history of significant family violence, his history of psychiatric illness and made an Order dispensing with the requirement for service. 

What are the requirements for leave to adopt a step child?

Section 60G requires that the court consider granting leave only if it is in the best interests of the child to do so, and having regard to:

  • In considering leave for the adoption proceedings to be commenced, best interests must be looked at in light of the fact the child will cease to be a child of the marriage for the purposes the FLA Section 4 FLA defines “child of the marriage” by reference to section 60F(1) to (4) as children to which children the FLA applies. The effect of this is a biological parent is effectively removed from being a person with standing (i.e. a person who is able) to bring an application in relation to the child for a parenting order This also applies to children of de facto relationships.
  • The court must consider that parental responsibility will be re allocated to another person.
  • The Court must consider the effect of existing parenting orders no longer being in effect after adoption.
  • The note to the section makes it clear that “best interests” is determined by reference to the matters that are typically considered by the court exercising jurisdiction pursuant to Part VII FLA in making a parenting order. 

In the decision referred to above Murphy J went on to hold that as an application pursuant to section 60G was “a child related proceeding”, Division 12A FLA also applied, which allows the judge to determine whether strict rules of evidence apply in conducting the hearing. Further, His Honour observed that also these applications are child related proceedings that section 96ZN ought to apply, which requires the court to consider the impact of the conduct of the proceeding on the child, and that the court actively direct and manage the proceeding to avoid undue delay, technicality and form. 

While the Family Court is not required to consider the matters to be determined by the Sate Magistrates Court these matters do bear upon whether the decision to grant leave is in the best interests of the child. 

Her Honour Hogan J said in Hurst and Anor & Chapman [2014] FamCA 506 that in considering section 208 AA the Family Court should not grant leave if appeared proceedings in a State court were doomed to fail because of non-compliance with mandatory prerequisites.

Another requirement of the AA section 16 and 175 is that the biological parent consents to the adoption. In the two cases referred to consent was not available because in one the biological parent was deceased, and in the other couldn’t be located. 

After leave to adopt has been granted

Once leave has been granted the process commences with the adopting parent’s name being entered in the expression of interest registrar with DOCS – Adoption Services Queensland.

This commences a process which culminates in a “suitability report” being produced which is put before the Children’s Court in ultimately determining the final adoption application. An approved form, known as a Form 7 commences this process.

5. Lowe and Anor & Clayton [2011] FamCA 1024 at 32
6. FLA section 60F(4)(a)
7.  However, section 65C(c) may allow a person with an interest in the care, welfare or development of a child standing to bring an application.
8. FLA section 60HA(3)(a)
9.  FLA section 61E
10.  FLA section65J
11.  Lowe and Anor & Clayton [2011] FamCA 1024 at 15
12. Lowe and Anor & Clayton [2011] FamCA 1024 at 16
13.  AA section 208
14. Lowe and Anor & Clayton [2011] FamCA 1024 at 20 to 22
15. Hurst and Anor & Chapman [2014] FamCA 506 at 8
16. AA sections 138 and 203
17.  AA sections 92 and 93

To be eligible to adopt the following must be established:

  • The applicant is a spouse (or de facto spouse) of a parent of the child.
  • The applicant has lived with the spouse parent and the child for a continuous period of at least 3 years.
  • Leave has been granted by the Family Court (as above).
  • The applicant is an adult and resident or domiciled within Australia.
  • The applicant and spouse are Australian citizens.
  • The subject child is agreed between 5 years and 17 years (an application for a child who is 17 can be made if the process can be completed before the child turns 18 and the grounds for the adoption are likely to exist.)

Consent of the biological parent

The general position is that the child’s parents must consent before the adoption can take place in Queensland. The AA provides for counselling to take place as part of this process.

In some circumstances the requirements for consent can be dispensed with, such as:

  • Applicant can’t establish the identity of the parent.
  • The applicant cannot locate the parent after all reasonable enquiries.
  • The parent is a lineal relative of the mother.
  • The conception was as a result of an offence by the relevant parent.
  • There would be unacceptable risk of harm to the child or mother if the relevant parent were made aware of the birth or proposed adoption.
  • Other special circumstances for giving dispensation. 

The term “exceptional circumstances” is referred to in section 208(f) (requirements for making a final Order) and the example given is “a parent of the child has died or cannot be located after making all reasonable enquiries.” 

18. 18.  AA section 92
19. AA section 16 and 175
20.  AA section 36(4)

Children’s Court

After the permission from the Family Court is granted to commence the adoption and all of the assessments have been made, an Application is filed in the Queensland Magistrates Court (sitting as the Children’s Court) for a final Order.

The final Order is made pursuant to section 208 AA and the requirements are:

  • The child is present in Queensland.
  • The step-parent is an adult resident or domiciled in Queensland.
  • The step-parent or their spouse is an Australia Citizen.
  • The suitability matters (referred to above) are satisfied.
  • An Order for the adoption would promote the child’s well being and best interests other than could be achieved via a Parenting Order made pursuant to the Family law Act 1975.
  • There are exceptional circumstances that warrant making an Order (such as death of the biological parent).

If you are considering adopting a step-child Hooper Mill Family Lawyers can guide you through the process and requirements.

Peter Hooper – Hooper Mill Family Lawyers Gold Coast and Brisbane – We are Family Law specialists, providing Expert Family Law advice and representation. 

In 2006 the Howard Government made changes to the Family Law Act 1975. This made Family Dispute Resolution (generally mediation) compulsory in most parenting matters. An Accredited Family Dispute Resolution Practitioner conducts the mediations. They have the authority to issue a certificate related to section 60I of the Act.

The Certificate (or final report) is like a piece of evidence for the Court. It includes whether the parties both attended mediation and made a genuine attempt to mediate or whether the Family Dispute Resolution Practitioner determined mediation is inappropriate.

Child focused or child inclusive mediation are two mediation models made to help parents work out a suitable parenting arrangement after their separation. Below is basic information on these models, the mediation process and recording of agreements.

What’s child focused and child inclusive mediation?

Child focused mediation seeks to encourage the parties to look beyond their disputes and consider how the agreements benefit the children. Often the mediator will educate the parents to better understand how the dispute and separation negatively impacts their children, both in the long and short term. Hopefully this information will help the parents to look beyond their positions, personal
wants and needs and encourage them to focus on the children.

The child inclusive mediation takes this a step further by arranging for the children to have an interview with a qualified child consultant. They speak with the children in a separate session, and will relay the children’s thoughts and feelings to the mediator and the parents. The child consultant carefully considers what information to report; their priority is the child’s welfare in the separation.

Child focused mediation resulted in greater fulfilment with the mediation process and longer lasting agreements. Child inclusive mediation, though, provided even better results than child focused mediation in these areas. (McIntosh, Wells et al, 2008:46McIntosh 2007:4)

Screening process

In this initial process, each parent meets with the Family Dispute Resolution Practitioner mediator. They screen for factors that may make mediation inappropriate. These factors include family violence, substance abuse, mental health and other imbalances affecting a party’s ability to participate in mediation.

On occasion the Family Dispute Resolution Practitioner will need to “balance power”. It’s not unheard of for both sides to try and “tip” the balance in mediations to their advantage. Therefore, the screening is vital to determine the needs of the parties and if mediation is a realistic route to take.

Facilitative mediation

The Family Dispute Resolution Practitioner’s role is to assist the parties to determine the outcome for the dispute themselves. It isn’t the role of the Family Dispute Resolution Practitioner mediator to advise or influence a party.

Generally, the Family Dispute Resolution process will require these steps:

  1. Mediator opens the proceedings and explains the rules;
  2. Receive opening statements from the parties. Both sides should speak uninterrupted;
  3. The mediator acknowledges and identifies common ground; An agenda is set in terms of the topics that need discussing;
  4. Both sides engage to explore the topics in the agenda;
  5. The mediator identifies options and obstacles;
  6. The mediator holds confidential private sessions with each party to discuss the viability of the options covered in the meetings;
  7. Negotiation between the parties;
  8. If an agreement is reached, it’s put on record.

Parenting Plans

Parenting Plans are methods of recording the agreements. These are written, signed and dated. These plans aren’t enforceable in a Court. But if the matter makes it that far, the Parenting Plan is evidence that an agreement exists, and is usually persuasive with the Court’s final decision.

The emotional stress of divorce is felt through any family, especially to the youngest and most sensitive members. The children. The child inclusive mediation method was developed in response to research about the effect parental conflict during separation has on children. The primary goal of this method, according to Professor Lawrie Moloney, is to re-establish and maintain a secure emotional base for children post separation (Moloney 2012:3)

What’s the child inclusive mediation method?

Dr Jennifer McIntosh, a clinical child psychologist, describes some of the fundamental elements of the CI process as follows (McIntosh 2007:5):

  • The session with the children must be supportive and appropriate as to the dispute and separation
  • Decision making shouldn’t be a burden the children carry
  • A therapeutic element is needed to help children with coping, providing information and validating their experiences
  • Assisting parents to hear and reflect upon the children’s experiences to better understand the children’s needs

Child inclusive mediation “ups the ante” by directly involving the children. This way the parents truly understand how their child feels and what they want. Expert advice is still considered in the proceedings as they’d meet with the children to gauge their state of mind during the separation.

The ultimate goal of any mediation involving young people is to reduce conflict and to prohibit agendas or “tactics” one parent may use over another to gain primary custody.

Does this method work?

In a 2006 study, 79% of the combined child-inclusive and child-focused mediation participants reported flattening out of their conflict. Other statistics from the study showed:

  • 82% of CI cases felt this method had improved the way their dispute was handled
  • 61% of children reported better outcomes for the family

In mediation, a clichéd image is the mother having primary custody awarded to her. However, there is an interesting result from the 2006 study. There was less acrimony, greater fulfilment with resolutions and a stronger sense of agreement among fathers in the year after the mediation (McIntosh and Long 2006:122). Fathers also had a greater perception of fairness from the child inclusive process (McIntosh and Long 2006:124)

For mothers there was a greater sense of preservation in the bond with their children. The benefits for the children included a perceived “closeness” with their father’s. They also reported being happier with agreements 1 year after the mediation (McIntosh and Long 2006:122).

Separation between de facto partners and married couples

The date of separation is an important one in the context of family law and for de facto relationship law.

The separation date is relevant to issues such as when divorce can be sought, when limitation period might expire, contributions for property settlement and other issues.

What is separation?

I assume most people would think they know whether they are separated or not however surprisingly it is often an issue. This is particularly the case when there is a reason to make it an issue such as when one party alleges a limitation period has expired.

In legal terms a “separation” is more than a physical separation. It involves the breakdown of the consortium vitae which is a fancy Latin way of saying “marital relationship”.

What was said of marital relationship in the case of In the Marriage of Todd No 2 has often been repeated by courts as being correct:

“What comprises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships, and the nurture and support of the children of the marriage.”

Thus the notion of separation occurs when there is a breakdown of the above marital relationship, in a de facto relationship, or marriage.

This means people can be living apart and not separated; or living together and be separated, i.e. “separated under one roof”.

The practicalities of separation

To determine the separation date, three other conditions are necessary. These are:

  1. One or both people in the marriage or de facto relationship form an intention to separate;
  2. The person forming the intention to separate acts on the intention – because marital relationships vary for each couple, this can usually be determined by examining the relationship before and after the alleged separation date. Casual acts of sexual intercourse after separation don’t necessarily mean you’re back together but it could form part of the evidence to support a resumption of the marital relationship;
  3. Communication of the intention to separate – This was mentioned in the case of Todd No 2 referred to above however it was subsequently recognised in In the Marriage of Falk. This condition requires that communication be direct or indirect by words or conduct.

I suppose you could say considering the above breaking up by email or text is the smart thing to do if you want to be clear about the separation date.

Perhaps it’s better etiquette to have the “it’s not me – it’s you” conversation (did I get that right?); and follow up with a gentle email or text message to confirm the date.

Why is the separation date important?

The main reason why separation date is important is in relation to divorce, the breakdown of a de facto relationship, and limitation periods.

The Family Law Act 1975 replaced the fault based grounds for divorce that existed previously with the one ground, that is, “irretrievable breakdown of the marital relationship”.

This ground for divorce is established by a continuous period of separation of not less than 12 months. Thus separation is necessarily established to obtain divorce.

After divorce has been granted a limitation period for property settlement in marriage operates 12 months after the date of divorce. This means if you get divorced you may not be able to seek property settlement without the permission of the court.

In de facto relationships the limitation period is 2 years after the end of the de facto relationship (date of separation).

Sometime the court will treat contributions people have made to property after separation differently in assessing property settlement. There have been a number of cases in which people have had windfalls such as Gold Lotto wins or inheritance at about the date of separation, or shortly after, that makes the date of separation an issue.

In the context of child support and child support calculator

Section 25 of the Child Support Assessment Act 1989 provides one of the conditions to obtain child support is that the applicant is not living with the other parent as his or her partner on a genuine domestic basis.

Section 9 provides “separation” means “circumstances in which the parties to a marriage are, under the Family Law Act 1975 taken to have separated”. Thus the principles are the same and the date separation occurs is relevant.

The child support calculator or child support estimator link is available in an earlier blog post for anyone wanting to obtain an indication of child support payments payable.

Family law advice

If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Mill Family Lawyers can assist you with practical advice. We are Brisbane Family Lawyers servicing all areas.




By Peter Hooper, Brisbane Family Lawyer

Most people are familiar with the idea that when parents separate “non-residential” parents may have to pay child support.

What most people don’t know however is how much child support they may be eligible to receive or liable to pay?

Well…keep reading because I can show you exactly how to work this out for yourself, quickly and easily…

The Child Support system

Child support in Australia is determined by an administrative assessment. For those of you young enough to remember, it started with Bob Hawke announcing in the late 1980’s that “By 1990 no Australian child will live in poverty”.

Effectively the legislation took the responsibility for determining how much child support should be paid away from the courts; and created a formula to be administered by the Child Support Agency (now Department of Human Resources).

Child support calculator – the child support formula

What makes up the child support formula then?

The following sets out how child support is calculated using the basic formula in the legislation:

  1. Each parents taxable income minus a “self-support” amount;
  2. Add both parents incomes together (minus self-support) to arrive at the “combined child support income”;
  3. Divide each parent’s individual child support income by the combined child support income to get an income percentage for each parent
  4. We work out each parent’s care percentage of the child using the care and cost table. The care costs table is set out below.
  5. Then work out each parents cost percentage using the same table, and subtract the cost percentage from the income percentage for each parent to arrive at the child support percentage.
  6. If the result is a positive percentage, child support is payable.
  7. If there is a positive percentage then the Department will work out the costs for each child based on the parents’ combined child support income using the cost of children The costs depend on the age and number of the children and are set out below.
  8. The final amount payable is then calculated by multiplying the positive child support percentage by the costs of the child. This final figure is the child support amount the paying parent needs to transfer to the other parent.

Do you need to be a family law lawyer to work this out?

No you don’t.

All you need to do to estimate the child support you are eligible or liable for is CLICK HERE

The link is to the Department of Human resources child support estimator. The estimator will work out the basic formula for you however there can be circumstances where the basic formula won’t apply and a change of assessment is necessary.


Peter Hooper is an accredited specialist family lawyer in Brisbane.

Misattributed paternity (sometimes referred to as paternity fraud) is the situation when the person who is thought to be the child’s father, is not the child’s biological father.

Estimates as to the incidences of misattributed paternity vary from country to country however the rate commonly quoted is at about 10%.[i] In Australia, the rate of misattributed paternity in contested case is said to be about 20%.[ii]

A common circumstance where the fact of paternity is an issue is with respect to an application for child support. Obviously the issue can arise in other matters (such as with respect to a parenting matter – aka “child custody”) however combining the emotional aspects of the infidelity, loss of a child and past/ongoing financial obligations, it is submitted these matters have an emotional depth beyond what family lawyers may generally encounter.

In the author’s experience family lawyers like to steer clear of emotional issues where possible and I am no exception. What follows is a brief summary of the law with respect to the interaction between paternity, child support laws, parentage testing and recovery of child support paid.

When is someone a father?

The Family Law Act 1975 (“FLA”) provides for a number of presumptions with respect to identifying who is the father of a child. These presumptions arise from:

  • Marriage[iii]
  • Cohabitation[iv]
  • Registration of birth[v]
  • Findings of courts[vi]
  • Acknowledgments of parentage[vii]

Section 69U provides these presumptions are rebuttable by proof on the balance of probabilities.

Other provisions of Commonwealth legislation identify who is a parent of a child born through artificial conception, surrogacy arrangements or adoption (in the family law context) but these will not be examined here.

Issue of paternity

If paternity is an issue in the proceeding, a declaration of parentage can be sought pursuant to section 69VA FLA which is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.

Provisions which assist with obtaining the necessary evidence are contained within Part VII, Division 12, Subdivision E (and include orders for parentage testing – section 69W FLA).

Who is a liable parent for child support purposes and when is child support payable?

Section 3 of the Child Support Assessment Act 1989 (CSAA) provides parents have a primary duty to maintain their children.

Section 29 CSAA sets out who is a parent and is in many respects not dissimilar to the presumptions referred to in the FLA.

A number of other sections identify who may apply and who is liable to pay child support. In summary, child support liability arises when:

  • There is an eligible child;[viii]
  • An application is made by a parent[ix] or eligible carer;[x]
  • The parents are not living together on a genuine domestic basis[xi]
  • The liable parent[xii] is living in Australia or in a reciprocating jurisdiction[xiii]

If the above conditions are met, and the child support Registrar is satisfied the application is made in accordance with the manner specified in section 150A CSAA, child support will be payable by the liable parent.

What recourse is there when an assessment of child support is made and paternity is in dispute?

There are a number of provisions of the CSAA that can assist in the event the liable parent does not believe they are the father of the child; and the eligible parent is not willing to assist.

A person aggrieved may bring an application in a court having jurisdiction under the CSAA and FLA. The most appropriate court is the Federal Circuit Court.

Final orders sought in the application

Section 107 CSAA allows a person to apply for a declaration that they “should not be assessed in respect of the costs of the child because the person is not a parent of the child”. To grant the declaration the court needs to be satisfied the person is not a parent.

Final orders for recovery of amounts paid where no liability exists can also be made pursuant to section 143 CSAA.

The nature of the relief is a final order and the application should be supported by an affidavit setting out the facts relied upon and a financial statement.

Importantly, a time limit applies to applications for declarations under section 107 CSAA that they be made “within the time prescribed by the applicable Rules of Court or within such further time as is allowed under the applicable Rules of Court.”[xiv]

The applicable rules of the Federal Circuit Court are Rule 25A.06 Federal Circuit Court Rules 2001 court which state:

“A person must file an application for a declaration under subsection 106A(2) or 107(1) of the Assessment Act within 56 days of the service on the applicant of a notice given under section 33 or 34 of that Act.”

Thus the time limit is within 56 days from service of the notice of the Registrar’s decision.

If the application is out of time, leave can be sought to proceed. Section 107 provides the application can be brought “within such further time as is allowed under the applicable Rules of Court.”

Rule 1.06 Federal Circuit Court Rules 2001 allows the court to dispense with compliance with the Rules in the “interests of justice” and; pursuant to Rule 3.05 the court may extend or shorten time fixed by the Rules.

The case law indicates that a satisfactory explanation for the delay will usually be sufficient[xv].

In Levine & Levine [2011] FMCAfam 821 the application was brought out of time when the child was 14. The evidence was that the mother made comments regarding paternity from the time the child was 4 years and the “father” had caught her in a compromising position with a neighbour 7 years before the child was born. The “father” became increasingly suspicious until he conducted his own DNA test without the mother or child’s knowledge. He first sought to deal with the matter without litigation before bringing his application within a year.

The court allowed the application to proceed and referred to similar facts described in DRP & AJL [2004] FMCAfam 440 at 17:

“There was nothing, of which the applicant was aware, which would have led him to have any doubt as to the paternity of the child. It is not appropriate to suggest that the applicant ought to have taken any active steps to inquire of the mother as to the paternity of the child when the child was conceived in a matrimonial relationship where there was no suggestion of infidelity. Indeed, to make such enquiries would be offensive and destructive to the relationship that most married spouses enjoy. There is no conduct of the applicant, with respect to these issues, that should be the subject of criticism.”

Recovery of child support payments

If the court grants the declaration pursuant to section 107 CSAA, then the court may consider the recovery of any child support paid.

The relevant considerations for recovery pursuant to section 143 CSAA were examined in detail in DRP & AJL.

Section 143 CSAA requires that the order be “just and equitable for the purposes of adjusting, or giving effect to, the rights of the parties and of the child concerned”. In examining a range of decisions at 25 to 26 Riethmuller FM held:

The term `just and equitable’ cannot be interpreted to simply mean `unfettered individual opinion’ as this would not provide a sufficiently certain definition to allow for the discretion to be an exercise of judicial power: Cominos v Cominos [1972] HCA 54; (1972) 127 C.L.R. 588. As a result, the process of considering the issues arising under section 143 must be approached judicially, and the factors relevant to the exercise of the discretion in the particular case identified and applied….In determining the relevant factors under section 143 the features of the child support scheme and general law that relate to these issues should be considered to place section 143 in its broader context.

In discussing the “broader context” His Honour went on to examine the circumstances in which adoption or artificial conception procedures may give rise to liability under the CSAA, section 29 CSAA when the Registrar will presume paternity, maintenance liabilities of step parents pursuant to the FLA.[xvi] His Honour made the fair point it would not be just and equitable to require money to be repaid where a step parent liability may arise under the FLA.

There are a number of factors set out in section 143(3) CSAA that apply to the court ordering money paid to be refund after a declaration is made under section 107 CSAA. With respect to these factors, His Honour noted prima facie the applicant had an entitlement to a refund and the list of factors at section 143(3) CSAA we not limited.[xvii]

In most cases however the following factors will generally be relevant:

  • The state of knowledge and conduct of the parties. It will be necessary to determine the state of knowledge of the payer at all relevant times (time of birth, during the relationship, at separation, and thereafter). The court will also consider whether a reasonable person would doubt being the father and any acquiescence or delay;
  • The relationship of the payer with the child. Of particular relevance must be the extent to which the payer has taken on the role of a parent and provider for the child.
  • Evidence as to the circumstances of the biological father. The biological father’s relationship with the child and capacity to provide support.
  • The financial circumstances of the parties. This will be particularly important when the repayment will place a burden upon the mother that will cause a significant detriment to the standard of living of the child. In many cases it will also be relevant that the mother has received an adjustment in her favour pursuant to section 75(2) FLA in the property settlement on the basis that the child is a biological child of the payer.

Interim orders/directions sought

There are a number of interim orders and directions that can be made prior to the final declaration. These are important with respect to the evidence necessary to obtain the declaration and protect the financial position of the applicant.

Interim orders/direction that can be sought are:

  • A stay of payments of child support;
  • That necessary “DNA” parentage testing is performed.

Stay of child support payments

The power to order a stay is contained within section 111C Child Support (Registration and Collection) Act 1988 (“CSRCA”). Section 111C(3) provides, “The court may make such orders as the court considers appropriate staying … if the court considers that it is desirable to do so, taking into account the interests of the persons who may be affected by the outcome of the proceeding.”

In Ahern & Ahern & Anor (SSAT Appeal) [2012] FMCAfam 1299 (23 November 2012) the court said at 22 to 25:

In order to show an arguable case, a party does not need to demonstrate that he or she has a strong case, let alone one that is bound to succeed…Whilst the claim does not appear to be overwhelmingly persuasive; it is far from a hopeless case. Thus, I am satisfied that the Applicant has shown that he has an arguable case, a serious question to be tried on appeal.

The court went on to consider any hardship from the point of view of both parties.

In Penman & Child Support Registrar & Anor (No3) [2013] FCCA 1124 (13 August 2013) the court at 15 set out in detail what should be taken into account in deciding whether to grant a stay:

  • “The onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
  • A person who has obtained a judgment is entitled to the benefit of that judgment;
  • A person who has obtained a judgment is entitled to presume the judgment is correct;
  • The mere filing of an appeal is insufficient to grant a stay;
  • The bona fides of the applicant;
  • A stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;
  • A weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
  • Some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
  • The period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time.”

“DNA” parentage testing

If parentage is an issue in the proceeding the court can order that parentage testing be performed (i.e. DNA testing).

The necessity for there to be “an issue” was recently examined again in the decision of Whitley & Ingham [2013] FCCA 869(22 July 2013). In this case the court did not allow parentage testing to establish whether a deceased man could be added to a child’s birth certificate, and the man’s death certificate, affirming that parentage testing is not a “free standing power.”

Section 69W FLA provides that the court, a party or an ICL may apply for a parentage testing order. The people who can be tested are the child, the person known to be the mother or “any other person, if the court is of the opinion that…the information that could be obtained might assist in determining the parentage of the child.”

To obtain an order for parentage testing a threshold was applied in TNL & CYT (2005) FamCA 77 applied in F & Z [2005] FMCAfam 394 at 58 and described as two hurdles. Firstly, parentage must be relevant to the nature of the proceedings and secondly, there must be evidence that places parentage in doubt.

With respect to the second “hurdle”, the Full Court in TNL & CYT approved earlier decisions that the applicant must have an “honest, bona fide and reasonable belief as to the doubt.”

The court in F & Z went on to describe the parentage presumptions contained within the FLA as the default position. Where an applicant with an honest, bona fide and reasonable doubt leads even relatively weak evidence to rebut the presumption, the order for testing should be granted.

In Tryon & Clutterbuck [2007] FamCA 580 (4 May 2007) it was confirmed an order pursuant to section 69W is a parenting order and as such the best interests of the child is the paramount consideration[xviii]and the matters in section 60CC in so far as they are relevant should be considered.

In circumstances where a person refuses to submit to a parentage test, the court may draw an inference from the failure to comply.

In Levine the mother failed to comply with an order for testing and the court drawing an inference from her failure, combined with the earlier test conducted by the father, made a finding the applicant was not the father.

In Nandi & Listberg [2013] FamCA 419 (6 June 2013) the father refused to comply with an order for testing and a parentage presumption was therefore not rebutted.


If you are preparing an affidavit for this type of application, in my opinion the following checklist should be applied:

  • Set out the back ground facts and any evidence that raises doubt as to paternity;
  • If doubt as to paternity is in the mind of the applicant, set out any facts leading to the “honest, bona fide and reasonable belief as to the doubt.”
  •  If there is any delay in bringing the application, explain why the delay has occurred;
  • If a stay is sought, greater detail with respect to the 3 points above will assist in establishing an arguable case. Also, ensure the financial statement is completed in detail with documentary evidence where available to establish any “hardship”. Address what the other party may say with respect to hardship in the affidavit;
  • Do some research as to who is available to provide appropriate testing and have a panel with estimated costs set out in the affidavit;
  • In anticipation of the application being successful, and recovery of child support is sought, set out evidence in relation to state of knowledge and conduct of the parties, the circumstances of the applicant’s relationship with the child (whether there will be future contact, is the biological father known and likely to provide support, the financial circumstances of the parties and in particular the mother’s capacity to repay;
  • Be mindful to include any justice and equity circumstances why the funds should be repaid considering any other factors present.

As stated above, there is no doubt these types of matters can be some of the most heart wrenching that litigants and children can be involved in.

As well as good family law advice, an open mind can also be important for litigants.

In Levine the putative father rejected the child after the parentage test. The court noted at 77 to 79 in the context of examining the relationship between the applicant and child under section 143 CSAA:

The evidence suggests that this child is still unaware that the Applicant is not his father. For him, this has been an unfortunate situation not of his own making. In January 2009, the parties separated and the person whom the child thought was his father moved out of the matrimonial home. Less than a year and a half later, the child’s father figure no longer has anything to do with him. Effectively, he is now without a father, through no fault of his own.

From the child’s point of view, his father (as he thought) has rejected him, for no apparent reason. The Applicant’s desire to find out the truth about the child’s paternity will result in a financial benefit to him, at the expense of “collateral damage” to the child.

One might well ask why, if [X] does not know about the result of the paternity test, the Applicant should not continue to give this child the benefit of his time, support and encouragement. An adult can still have a loving, nurturing relationship with a child even if the adult is not the child’s biological parent. Australian society is full of people who have loving relationships with their step-children or adopted children.


[i] Rincon P (11 February 2009). “Study debunks illegitimacy ‘myth'”

[ii] Gilding, Michael (26 July 2011). “The fatherhood myth: Michael Gilding unravels the uncertain data about mistaken paternity”

[iii] Section 69P FLA

[iv] Section 69Q FLA

[v] Section 69R FLA

[vi] Section 69S FLA

[vii] Section 69T FLA

[viii] Sections 19,20,21 and 22 CSAA

[ix] Section 25 CSAA

[x] Section 25A CSAA

[xi] Section 25(b) CSAA

[xii] Section 5 liable parent is, “in the case of an administrative assessment–a parent by whom child support is payable for the child under the administrative assessment.”

[xiii] Section 29A CSAA

[xiv] Section 107(2)

[xv] See Levine & Levine [2011] FMCAfam 821

[xvi] Section 66M, 66N and 66D(2) FLA

[xvii] DRP & AJL [2004] FMCAfam 440 at 65 and 66

[xviii] Section 60CA FLA


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