Mulvany & Lane 2009 FamCAFC 76

A presumed father was found by DNA not to be the biological parent of a child aged 5 years shortly before a trial.  The judge permitted the presumed father to continue his application as a person concerned with the care, welfare and development of the child. The judge agreed that the child spend time with the presumed father.  Because the presumed father was a non-parent, the judge did not apply clauses about equal shared parental responsibility.  The judge applied the principle of best interests of the child.  The father appealed.

The Appeal Court noted that legislation does not provide clear guidance about the important roles in a child’s life of significant persons who are not natural parents of a child but who stand in loco parentis as a non-parent.  The Court noted that the law has always been quite content to presume, absent proof to the contrary, that every child born to a married woman is the child of the man to whom she is married – even if the couple are not living together.  A re-trial was ordered.