Family Relationships Act 1975

This Act may be cited as the Family Relationships

Act 1975.

This Act binds the Crown.

In this Act, unless the contrary intention appears—

child born outside marriage includes a child born to a married woman of which a man other than her lawful spouse is the father;

co-parent, of a child, means a person who is taken to be a co‑parent of the child under

Part

2A;

Court means the Supreme Court, the District

Court or the Magistrates Court;

domestic partner—see section 11A;

father or natural father, of a child, includes a person who is presumed to be the father of the child under

Part 2A;

instrument means any instrument that creates, modifies or extinguishes legal or equitable rights, powers or liabilities.

A reference in this or any other Act to the mother, father or parent (however described) of a child will, unless the contrary intention appears, be taken to include a reference to a co‑parent of the child (regardless of the sex of the co‑parent).

Subject to this Act, the relationship of parent and child exists, for the purposes of the law of this State, between a person and his natural father or mother, and other relationships of consanguinity or affinity shall be traced accordingly.

Subject to subsection (3) of this section, where an instrument contains an expression denoting a relationship of consanguinity or affinity, that expression shall be construed in accordance with the provisions of subsection (1) of this section, unless the contrary intention appears either expressly or by implication from the terms of the instrument, or from circumstances that can be properly taken into account in construing the instrument.

An instrument executed before the commencement of this Act shall be construed as if this Act had not been passed.

Whenever it is relevant under the law of this State to determine the relationship between persons, the provisions of this Part are, so far as they may be relevant, applicable—

whether or not any of those persons is, or has ever been, domiciled in this State; and

whether or not any of those persons was born, or died, before the commencement of this Act.

A person shall be recognised as the father of a child born outside marriage only if—

he is recognised as father of the child by reason of legitimation of the child, or under the law relating to the adoption of children;

or

he has acknowledged in proceedings for registration of the birth of the child (either in this State or in some other place) that he is the father of the child; or

he has been, during his lifetime, adjudged by a court of competent jurisdiction (either of this State, or of some other place) to be the father of the child; or

he has been adjudged under this Act to be the father of the child, and no other person is, under this Act, taken to be the father or co‑parent of the child.

Subject to Part

2A, a child born to a woman during her marriage or qualifying relationship, or within ten months after the marriage or qualifying relationship has been dissolved by death or otherwise, shall, in the absence of proof to the contrary, be presumed to be the child of its mother and her spouse or partner or former spouse or partner (as the case may be).

In this section—

qualifying relationship has the same meaning as in Part 2A.

Where—

a female person alleges that a particular person is the father or co-parent of her child; or

a person alleges that the relationship of father or co-parent and child exists between that person and another person; or

a person whose pecuniary interests, or whose rights or obligations at law or in equity, are affected according to whether the relationship of father or co‑parent and child exists between two persons desires the court to determine whether such relationship exists between those persons, that person may apply to the Court for a declaration of parentage, and if it is proved to the satisfaction of the Court that the relationship exists, the

Court may make such a declaration.

A declaration may be made under this section whether or not one or both of the persons in relation to whom the declaration is sought are dead.

The Court should not proceed to make a declaration under this section unless it is satisfied, as far as reasonably practicable, that all living persons whose interests are affected by the declaration have had the opportunity to make representations to the Court in relation to the subject matter of the proceedings.

Where a person claims that the relationship of father or co-parent and child exists between two persons, and one or both of those persons are dead at the time of the proceedings, a declaration shall not be made under this section unless the claim is supported by credible corroborative evidence.

This Part does not affect—

the rules under which the domicile of a child is determined;

or

the consequences at law or in equity of the adoption of a child made or recognised under the law of this State; or

any proceedings under the Community Welfare

Act 1972, in which the paternity of a child is in issue;

or

the operation of, or the consequences at law or in equity of an order under, Part 2A of this Act.

In this Part—

fertilisation procedure means—

assisted insemination (within the meaning of the

Assisted Reproductive Treatment

Act 1988); or

assisted reproductive treatment (within the meaning of the

Assisted Reproductive Treatment

Act 1988).

qualifying relationship means a marriage‑like relationship between 2 people who are partners (irrespective of their sex or gender identity), and includes a relationship that is registered under the Relationships

Act 2016.

A reference in this Part to the spouse of a woman is, where the woman has a lawful spouse but is living with another person as that person's partner on a genuine domestic basis, to be construed as a reference to the person with whom she is living and not the lawful spouse.

For the purposes of this Part, a reference to the partner of a person in respect of a qualifying relationship means the partner comprising

part of that qualifying relationship.

Subject to this section, this Part applies—

in respect of a fertilisation procedure carried out before or after the commencement of the Reproductive

2009 either within or outside the State; and

in respect of a child born before or after commencement of the

Reproductive Technology (Clinical

Practices) (Miscellaneous) Amendment Act 2009 either within or outside the State.

Nothing in this Part affects the vesting of property in possession or in interest before the commencement of the Family

Act 1984.

A woman who gives birth to a child is, for the purposes of the law of the State, the mother of the child (whether the child was conceived by the fertilisation of an ovum taken from that woman or another woman).

Except as provided in subsection (5a), if—

a woman becomes pregnant in consequence of a fertilisation procedure; and

the ovum used for the purposes of the procedure was taken from another woman, then, for the purposes of the law of the State, the woman from whom the ovum was taken will be taken not to be the mother of any child born as a result of the pregnancy.

If a woman who is legally married or in a qualifying relationship undergoes, with the consent of her spouse or partner (as the case requires), a fertilisation procedure in consequence of which she becomes pregnant, then, for the purposes of the law of the State, the spouse or partner—

will be conclusively presumed to have caused the pregnancy;

and

will be taken to be—

in the case of a male spouse or partner—the father;

or

in any other case—a co‑parent, of any child born as a result of the pregnancy.

If—

a woman becomes pregnant in consequence of a fertilisation procedure; and

a man (not being the woman's spouse or, if she is in a qualifying relationship, her partner) produced sperm used for the purposes of the procedure, then, for the purposes of the law of the State, the man—

will be conclusively presumed not to have caused the pregnancy;

and

will be taken not to be the father of any child born as a result of the pregnancy.

If a woman becomes pregnant in consequence of a fertilisation procedure using the semen of a man—

who has died; and

who, immediately before his death, was the woman's spouse, or was living with the woman in a qualifying relationship; and

who had consented to the use of the semen for the purposes of the fertilisation procedure, the man—

will be conclusively presumed to have caused the pregnancy;

and

will be taken to be the father of any child born as a result of the pregnancy.

If a woman becomes pregnant in consequence of a fertilisation procedure using an ovum from, or an embryo created by using an ovum from, another person—

who has died; and

who, immediately before their death, was the woman's spouse, or was living with the woman in a qualifying relationship; and

who had consented to the use of the ovum or embryo for the purposes of the fertilisation procedure, the deceased person—

will be conclusively presumed to have caused the pregnancy;

and

will be taken to be the co-parent of any child born as a result of the pregnancy.

For the purposes of this section, a woman's spouse, or partner with whom she is in a qualifying relationship, will, in the absence of proof to the contrary, be presumed to have consented to the woman undergoing a fertilisation procedure.

This section applies in relation to a child regardless of when the child was born.

However, nothing in this section prevents a person becoming the mother, father or co‑parent of a child in accordance with another provision of this Act, or any other Act or law.

[Note: ExampleAn order may be made by the Court under

Part

2BDivision 3 of this

Act.]

This section applies to a child if—

the child is domiciled in this State; and

the child was conceived as a result of a fertilisation procedure carried out in this State; and

1 or more of the following applies:

the paternity of the child is not able to be determined by the operation of section 10C;

the operation of section 10C(4) does not reflect the wishes of both the provider of the sperm used for the purposes of the fertility procedure (the

sperm provider) and the mother of the child;

the fertility procedure was carried out in any other circumstances brought within the ambit of this paragraph by the regulations.

The Court may, in relation to a child to which this section applies and on the application of the sperm provider in respect of the child, make an order under this section.

However, the Court must not make an order under this section unless satisfied that both the mother and the sperm provider freely, and with a full understanding of what is involved, agree to the making of the order.

The Court must, in deciding whether to make an order under this section, regard the welfare of the child as the paramount consideration.

In deciding whether to make an order under this section, the Court may take into account anything it considers relevant.

If the Court makes an order under this section, the effect of the order will be as follows:

for the purposes of the law of the State, the person specified by the Court—

will be conclusively presumed to have caused the pregnancy;

and

will be taken to be the father of any child born as a result of the pregnancy;

the relationships of all other persons to the child will be determined according to the operation and effect of paragraph (a).

If the Court makes an order under this section, the Court may make any other ancillary order the Court thinks fit.

This section does not apply in relation to a child born as a result of a lawful surrogacy agreement under the Surrogacy Act 2019 (whether or not an order under section 18 of that Act has been, or could be, made in respect of the parentage of the child).

In this section—

Court means the Youth Court of South

Australia constituted of the Judge of the Court or a magistrate.