Becoming a parent isn’t always planned. While some people may meticulously plan when they have children, for others, pregnancy and parenthood can come as a surprise, such as a one night stand resulting in a pregnancy.
In situations where an unplanned pregnancy occurs and a child is born, it’s common for questions to arise about responsibilities and obligations.
In this article, we’re exploring the topic of unplanned pregnancy, parenthood and the obligations of biological parents.
Am I a parent? And if I did not consent to the birth of a child, do I have any obligations?
Where a child is conceived unintentionally, and irrespective of whether you agreed to the child’s birth or not, you may be liable to pay certain costs associated with the child’s birth and maintenance over the subsequent 18 years.
In Australia, a presumption of parentage arises in a number of circumstances: –
- when your name is recorded on the child’s birth certificate and thus in a register of births, you are presumed to be a parent of the child; or
- if a child is born while you are married to the mother of the child, you are presumed to be a parent of that child; or
- if you are living with the mother of the child beginning 44 weeks and ending 20 weeks before the birth of the child, you are presumed to be a parent of that child.
One might assume that refusing to admit that you are the father of a child would release you of some or all of your parenting obligations. However, the mother can still apply to the Federal Circuit and Family Court of Australia and seek a declaration of parentage.
Evidence such as DNA parentage testing can rebut the presumption of parentage and the Court can issue a declaration of paternity.
What if the DNA parentage testing confirms you are the father?
If a person is found to be the biological father of a child through DNA parentage testing, various obligations arise.
Liability During and After Pregnancy
You, as the father, may be liable to contribute towards the maintenance of the mother and the mother’s reasonable medical expenses in relation to the pregnancy and birth. Such expenses will commence either two months before the child’s due date or from an earlier date if the mother stops working based on medical advice related to the pregnancy. The period ends three months after the child’s birth. This is classified as the ‘childbirth maintenance period’ under section 67B of the Family Law Act 1975 (Cth) (“the Act”).
In deciding what amount is appropriate, the Court will consider the following: –
- income earning capacity, property and financial recourses of the mother and father;
- the parents’ necessary commitments for supporting themselves, any other child or other person;
- any special circumstances which if not taken into account would result in injustice or hardship to any person.
When deciding on an amount payable by the father, the Court will not take into account any income-tested pension allowance or benefits that the mother is entitled. Nor, will the Court take into account expenses associated with the child, such as baby items. These are not categorised as ‘maintenance of the mother’, whereas the mother’s living costs may be considered.
Parenting and Child Support
A common question that arises is whether a father is required to pay child support if he did not agree to the child’s birth.
As a parent, you may be liable to pay child support up until your child attains 18 years of age, particularly if the mother has the primary care of the child.
In certain circumstances, it may be appropriate to enter into parenting orders by consent or execute a Binding Child Support Agreement (“BCSA”) pursuant to section 80C of the Child Support (Assessment) Act 1989 (Cth) (“Assessment Act”).
There are two principal ways in which a mother can receive child support:-
- by applying to the Child Support Agency for an administrative assessment in accordance with the Assessment Act; or
- by applying for the acceptance of an agreed BCSA under Pt 6 of the Assessment Act.
An administrative assessment is based on the parents’ taxable income, how many nights the child spends with each parent, and the age of the child. If you refuse to pay child support as assessed, the amount becomes a debt due and payable and can result in legal action being brought to recover the debts.
A BCSA can be a more appealing alternative for you as opposed to being assessed by the Child Support Agency. The benefit of a BCSA (entered into after each parent has received independent legal advice) is that it provides certainty as to any child support payable, is an arrangement that suits each parents’ particular circumstances and can be a substitute for any child support assessment.
What if I am not the father and the mother has applied for a Child Support Assessment?
If you do not believe that you are the father of the child and thus not liable to pay child support, an application can be made to the Court for a declaration under section 107 of the Assessment Act. The Court may order DNA testing prior to making such a declaration.
Is the law any different for a child of a de facto partner?
You may be considered to be in a de facto relationship if you are a couple living together on a genuine domestic basis. The birth of a child can affect whether a relationship may be defined as being a de facto relationship for the purpose of claim for property settlement or spouse maintenance.
The Act makes provision for parentage of children of de facto partners. One scenario that arises is if your de facto partner adopted a child and you consented to the adoption, you are considered to be a parent of that child.
Another scenario that can occur is where a child is born as a result of artificial conception. For instance, by way of artificial insemination or the implantation of an embryo in the body of a woman. At the time the child is conceived, if you are in a de facto relationship and you consented to the artificial conception, you are considered to be a parent of the child.
What rights do both parents have in relation to the child?
Under Australian family law, both parents hold joint parental responsibility for their child, regardless of the circumstances of their conception. This means that both parents have a right to be involved in making important decisions about the child’s life, even if the child was conceived from a one night stand. These decisions encompass various aspects, including education, medical treatment, and religious upbringing. The law acknowledges the importance of fostering a meaningful relationship between the child and both parents.
What if you don’t have a relationship with the person but you wish to be involved in the child’s life?
When a child is conceived as a result of a one night stand and there is no established relationship between the parents, the question of involvement in the child’s life often arises. The Australian family law system does emphasise the importance of joint parental responsibility and the child’s best interests.
Parenting plans and arrangements become essential tools in such cases. While you may not have a pre-existing relationship with the other parent, it is still possible to develop a parenting plan that outlines how you both intend to share parental responsibilities. These plans are tailored to the unique circumstances of each situation and can help define the roles, responsibilities, and time-sharing arrangements between parents.
In a situation where you have no relationship with the other parent, you may face unique challenges in these circumstances. We highly recommend seeking legal advice from experienced family lawyers so that you know the options available to you.
Do I have to be involved with making decisions for this child?
Even if the child’s conception was unplanned and arose from a one night stand, both parents are expected to share in making significant decisions about the child’s life. However, the law does not require each parent to make equal or positive contributions to these decisions. The way you handle your parental responsibility is unique to your situation, however, we highly recommend seeking legal advice to ensure that you are fulfilling your legal obligations.
Do I have to spend time with the child?
While the child’s conception might have been unplanned, both parents still have a responsibility to consider the child’s best interests. This includes the child’s right to have a meaningful relationship with both parents. Deciding not to spend time with the child is a significant choice and should be made thoughtfully, as it may impact the child’s emotional well-being and development.
Is there such a thing as entrapment in Australia?
It is important to note that entrapment is not recognised as a legal defence in the context of unplanned parenting resulting from one night stands under Australian family law. Regardless of the circumstances of conception, the focus remains on the best interests of the child and the legal rights and responsibilities of both parents.
Seeking Legal Advice
Ultimately, each scenario is unique and determining the steps to take when faced with an unplanned or unexpected birth can be challenging. Whether it is determining what costs you may be required to pay the mother, if you need to file an application seeking a declaration of paternity, or you wish to execute a BCSA, discuss your situation with us at . We understand that parenting is complicated at the best of times, even more so when it is completely unexpected and our firm is well-versed in these areas and highly experienced in all areas of Family Law.