1Family Relationships Act 1975

South Australia Family Relationships Act 1975 An Act to abolish the legal consequences of illegitimacy under the law of this State; to invest courts of this State with power to make judgments declaratory of certain relationships; and for other purposes.

Contents Part 1—Preliminary 1 Short title 4 Crown to be bound by this Act 5 Interpretation Part 2—Children 6 All children of equal status 7 Recognition of paternity 8 Presumption as to parentage 9 Declaration of parentage 10 Saving provision Part 2A—Children conceived following fertilisation procedures 10A Interpretation 10B Application of Part 10C Rules relating to parentage 10EA Court order relating to paternity Part 3—Domestic partners 11 Interpretation 11A Domestic partners 11B Declaration as to domestic partners (other than domestic partners in registered relationship) Part 4—Miscellaneous 12 Protection of administrators etc 13 Confidentiality of proceedings 14 Claim under this Act may be brought in the course of other proceedings 15 Regulations Schedule 1—Transitional provisions 1 Transitional provisions (Statutes Amendment (Legalisation of Same Sex Marriage Consequential Amendments) Act 2019) Legislative history

The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Family Relationships Act 1975. 4—Crown to be bound by this Act This Act binds the Crown. 5—Interpretation (1) 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. (2) 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). Part 2—Children 6—All children of equal status (1) 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. (2) 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. (3) An instrument executed before the commencement of this Act shall be construed as if this Act had not been passed. (4) 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— (a) whether or not any of those persons is, or has ever been, domiciled in this State; and (b) whether or not any of those persons was born, or died, before the commencement of this Act. 7—Recognition of paternity A person shall be recognised as the father of a child born outside marriage only if— (a) 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 (b) 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 (c) 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 (d) 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. 8—Presumption as to parentage (1) 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). (2) In this section— qualifying relationship has the same meaning as in Part 2A. 9—Declaration of parentage (1) Where— (a) a female person alleges that a particular person is the father or co-parent of her child; or (b) a person alleges that the relationship of father or co-parent and child exists between that person and another person; or (c) 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. (2) 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. (3) 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. (4) 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. 10—Saving provision This Part does not affect— (a) the rules under which the domicile of a child is determined; or (b) the consequences at law or in equity of the adoption of a child made or recognised under the law of this State; or (c) any proceedings under the Community Welfare Act 1972, in which the paternity of a child is in issue; or (d) the operation of, or the consequences at law or in equity of an order under, Part 2A of this Act. Part 2A—Children conceived following fertilisation procedures 10A—Interpretation (1) In this Part— fertilisation procedure means— (a) assisted insemination (within the meaning of the Assisted Reproductive Treatment Act 1988); or (b) 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 Register Act 2016. (2) 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. (3) 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. 10B—Application of Part (1) Subject to this section, this Part applies— (a) in respect of a fertilisation procedure carried out before or after the commencement of the Reproductive Technology (Clinical Practices) (Miscellaneous) Amendment Act 2009 either within or outside the State; and (b) 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. (3) Nothing in this Part affects the vesting of property in possession or in interest before the commencement of the Family Relationships Act Amendment Act 1984. 10C—Rules relating to parentage (1) 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). (2) Except as provided in subsection (5a), if— (a) a woman becomes pregnant in consequence of a fertilisation procedure; and (b) 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. (3) 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— (a) will be conclusively presumed to have caused the pregnancy; and (b) will be taken to be— (i) in the case of a male spouse or partner—the father; or (ii) in any other case—a co‑parent, of any child born as a result of the pregnancy. (4) If— (a) a woman becomes pregnant in consequence of a fertilisation procedure; and (b) 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— (c) will be conclusively presumed not to have caused the pregnancy; and (d) will be taken not to be the father of any child born as a result of the pregnancy. (5) If a woman becomes pregnant in consequence of a fertilisation procedure using the semen of a man— (a) who has died; and (b) who, immediately before his death, was the woman's spouse, or was living with the woman in a qualifying relationship; and (c) who had consented to the use of the semen for the purposes of the fertilisation procedure, the man— (d) will be conclusively presumed to have caused the pregnancy; and (e) will be taken to be the father of any child born as a result of the pregnancy. (5a) 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— (a) who has died; and (b) who, immediately before their death, was the woman's spouse, or was living with the woman in a qualifying relationship; and (c) who had consented to the use of the ovum or embryo for the purposes of the fertilisation procedure, the deceased person— (d) will be conclusively presumed to have caused the pregnancy; and (e) will be taken to be the co-parent of any child born as a result of the pregnancy. (6) 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. (7) This section applies in relation to a child regardless of when the child was born. (8) 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. Example— An order may be made by the Court under Part 2B Division 3 of this Act. 10EA—Court order relating to paternity (1) This section applies to a child if— (a) the child is domiciled in this State; and (b) the child was conceived as a result of a fertilisation procedure carried out in this State; and (c) 1 or more of the following applies: (i) the paternity of the child is not able to be determined by the operation of section 10C; (ii) 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; (iii) the fertility procedure was carried out in any other circumstances brought within the ambit of this paragraph by the regulations. (2) 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. (3) 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. (4) The Court must, in deciding whether to make an order under this section, regard the welfare of the child as the paramount consideration. (5) In deciding whether to make an order under this section, the Court may take into account anything it considers relevant. (6) If the Court makes an order under this section, the effect of the order will be as follows: (a) for the purposes of the law of the State, the person specified by the Court— (i) will be conclusively presumed to have caused the pregnancy; and (ii) will be taken to be the father of any child born as a result of the pregnancy; (b) the relationships of all other persons to the child will be determined according to the operation and effect of paragraph (a). (7) If the Court makes an order under this section, the Court may make any other ancillary order the Court thinks fit. (7a) 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). (8) In this section— Court means the Youth Court of South Australia constituted of the Judge of the Court or a magistrate. Part 3—Domestic partners 11—Interpretation In this Part— close personal relationship means the relationship between 2 adult persons (whether or not related by family and irrespective of their sex or gender identity) who live together as a couple on a genuine domestic basis, but does not include— (a) the relationship between a legally married couple; or (b) a relationship where 1 of the persons provides the other with domestic support or personal care (or both) for fee or reward, or on behalf of some other person or an organisation of whatever kind. Note— Two persons may live together as a couple on a genuine domestic basis whether or not a sexual relationship exists, or has ever existed, between them. registered relationship means a relationship that is registered under the Relationships Register Act 2016, and includes a corresponding law registered relationship under that Act. 11A—Domestic partners A person is, on a certain date, the domestic partner of another if— (a) the person is, on that date, in a registered relationship with the other; or (b) the person is, on that date, living with the other in a close personal relationship and— (i) the person— (A) has so lived with the other continuously for the period of 3 years immediately preceding that date; or (B) has during the period of 4 years immediately preceding that date so lived with the other for periods aggregating not less than 3 years; or (ii) a child, of whom the 2 persons are the parents, has been born (whether or not the child is still living at that date). 11B—Declaration as to domestic partners (other than domestic partners in registered relationship) (1) Subject to subsection (3), a person whose rights or obligations depend on whether— (a) the person and another person; or (b) 2 other persons, were, on a certain date, domestic partners 1 of the other may apply to the Court for a declaration under this section. (2) If, on an application, the Court is satisfied that— (a) the persons in relation to whom the declaration is sought were, on the date in question, domestic partners within the meaning of section 11A; or (b) in any other case— (i) the persons in relation to whom the declaration is sought were, on the date in question, living together in a close personal relationship; and (ii) the interests of justice require that such a declaration be made, the Court must declare that the persons were, on the date in question, domestic partners 1 of the other. (2a) This section does not apply to domestic partners who are in a registered relationship who may provide evidence that they were, on a certain date, in the registered relationship by producing a certificate issued by the Registrar of Births, Deaths and Marriages under section 21 of the Relationships Register Act 2016. (3) When considering whether to make a declaration under this section, the Court must take into account all of the circumstances of the relationship between the persons in relation to whom the declaration is sought, including any 1 or more of the following matters as may be relevant in a particular case: (a) the duration of the relationship; (b) the nature and extent of common residence; (c) the degree of financial dependence and interdependence, or arrangements for financial support; (d) the ownership, use and acquisition of property; (e) the degree of mutual commitment to a shared life; (f) any domestic partnership agreement made under the Domestic Partners Property Act 1996; (fa) any Part VIIIAB financial agreement made under the Family Law Act 1975 of the Commonwealth; (g) the care and support of children; (h) the performance of household duties; (i) the reputation and public aspects of the relationship. (4) A declaration may be made— (a) whether or not 1 or both of the persons in relation to whom the declaration is sought are, or ever have been, domiciled in this State; or (b) despite the fact that 1 or both of them are dead. (5) It must not be inferred from the fact that the Court has declared that 2 persons were domestic partners 1 of the other, on a certain date, that they were domestic partners as at any prior or subsequent date. (6) For the purpose of determining whether a person was, on a certain date, the domestic partner of another, circumstances occurring before or after the commencement of this Part may be taken into account. Part 4—Miscellaneous 12—Protection of administrators etc (1) Where a person has an interest in property by reason of a relationship recognised under the law of this State by virtue of this Act— (a) no action shall lie against an administrator or trustee of the property by virtue of any distribution of, or dealing with, the property made without actual notice of the relationship; and (b) where any person has taken a beneficial interest in the property, his interest shall be undisturbed unless he took the interest with prior actual notice of the relationship. (2) Where a person claims an interest in property by reason of a relationship that would be recognised under the law of this State if it were adjudged, in pursuance of the provisions of this Act, to exist, or to have existed, an administrator or trustee of the property may by notice in writing require that person to take proceedings under this Act seeking the appropriate declaration, and if that person fails to commence such proceedings within three months after being served personally or by post with that notice, then— (a) no action shall lie against the administrator or trustee of the property by reason of any distribution of, or dealing with, the property made on the assumption that the relationship does not exist; and (b) where any person has taken a beneficial interest in the property, his interest shall be undisturbed. 13—Confidentiality of proceedings (1) Protected information is information relating to an application under this Act (including images) that identifies, or may lead to the identification of— (a) an applicant; or (b) a person who is related to, or associated with, an applicant or is, or is alleged to be, in any other way connected in the matter to which the application relates; or (c) a witness in the hearing of the application. (2) A person who publishes protected information is guilty of an offence. Maximum penalty: $5 000 or imprisonment for 1 year. (3) A person who discloses protected information knowing that, in consequence of the disclosure, the information will, or is likely to, be published is guilty of an offence. Maximum penalty: $5 000 or imprisonment for 1 year. (4) This section does not apply to— (a) the publication or disclosure of material— (i) by a court or an employee of the Courts Administration Authority (so long as such publication or disclosure is made in connection with the administrative functions of the court); or (ii) for purposes associated with the administration of this Act or another Act relevant to the application; or (b) the publication in printed or electronic form of material that— (i) consists solely or primarily of the reported judgments or decisions of a court; or (ii) is of a technical nature designed primarily for use by legal practitioners. (5) In this section— newspaper means a newspaper, journal, magazine or other publication that is published at periodic intervals; publish means publish by newspaper, radio or television, or on the internet, or by some other similar means of communication to the public. 14—Claim under this Act may be brought in the course of other proceedings (1) Where— (a) a person desires to institute proceedings in a court; and (b) it is necessary for the purposes of those proceedings to establish under this Act that a certain relationship exists, he may commence the proceedings in the usual way, but he must endorse on the process by which the proceedings are instituted a statement to the effect that he seeks a declaration under this Act of a specified relationship. (2) In any such proceedings, there shall be, unless a court otherwise determines, a separate trial of any issues arising under this Act. 15—Regulations (1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act. (2) Without limiting the generality of subsection (1), the regulations may— (a) make provisions of a savings or transitional nature consequent on the amendment of this Act by another Act or the commencement of specified regulations under this Act; (b) incorporate or operate by reference to a specified code or standard as in force at a specified time or as in force from time to time; (c) fix fees to be paid in respect of any matter under this Act and regulate the recovery, refund, waiver or reduction of such fees; (d) impose a penalty, not exceeding a fine of $10 000, for contravention of, or non‑compliance with, a regulation; (e) fix expiation fees, not exceeding $315, for alleged offences against the regulations. (3) The regulations may— (a) be of general application or limited application; (b) make different provision according to the matters or circumstances to which they are expressed to apply; (c) provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of the Minister. (4) If a code or standard is referred to or incorporated in the regulations— (a) a copy of the code or standard must be kept available for inspection by members of the public, without charge and during normal office hours, at an office determined by the Minister; and (b) evidence of the contents of the code or standard may be given in any legal proceedings by production of a document apparently certified by the Minister to be a true copy of the code or standard. Schedule 1—Transitional provisions 1—Transitional provisions (Statutes Amendment (Legalisation of Same Sex Marriage Consequential Amendments) Act 2019) (1) A reference to a husband in section 10C(3) as in force immediately before the commencement of the amending Act will, during the prescribed period, be taken to have been a reference to a spouse. (2) To avoid doubt, a partner of a woman who was taken to be a father or co‑parent of a child born as a result of the woman's pregnancy in consequence of a fertilisation procedure under section 10C(3a) as in force immediately before the commencement of the amending Act will continue to be taken to be the father or co‑parent (as the case may be) of that child notwithstanding the repeal of section 10C(3a) by the amending Act. (3) A female spouse or partner of a surrogate mother may only be a party to a recognised surrogacy agreement for the purposes of section 10HA(2a)(a)(i) as amended by the amending Act if that agreement was entered into after the commencement of this clause. (4) In this section— amending Act means the Statutes Amendment (Legalisation of Same Sex Marriage Consequential Amendments) Act 2019; prescribed period means the period commencing on the recognition day and ending on the day before the amending Act commenced; recognition day means the day on which Part 1 of Schedule 1 to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 of the Commonwealth commenced. Legislative history Notes • Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete. • Earlier versions of this Act (historical versions) are listed at the end of the legislative history. • For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or . Principal Act and amendments New entries appear in bold. Year No Title Assent Commencement 1975 115 Family Relationships Act 1975 4.12.1975 29.1.1976 (Gazette 29.1.1976 p356) 1984 102 Family Relationships Act Amendment Act 1984 20.12.1984 14.2.1985 (Gazette 14.2.1985 p366) 1986 66 Family Relationships Act Amendment Act 1986 13.11.1986 13.11.1986 1988 2 Family Relationships Act Amendment Act 1988 3.3.1988 7.4.1988 (Gazette 7.4.1988 p856) 2006 43 Statutes Amendment (Domestic Partners) Act 2006 14.12.2006 Pt 2 (ss 4—7)—1.6.2007 (Gazette 26.4.2007 p1352) 2009 43 Reproductive Technology (Clinical Practices) (Miscellaneous) Amendment Act 2009 1.10.2009 Sch 1 (Pt 1)—1.9.2010 (Gazette 1.7.2010 p3338) 2009 64 Statutes Amendment (Surrogacy) Act 2009 as amended by 8/2010 26.11.2009 Pt 2 (ss 4—14) & Sch 1—26.11.2010: s 2 2010 8 Statutes Amendment (Surrogacy) Amendment Act 2010 8.7.2010 26.11.2010 immediately after 64/2009: s 2 2011 22 Family Relationships (Parentage) Amendment Act 2011 23.6.2011 15.12.2011 (Gazette 15.12.2011 p4987) 2011 27 Statutes Amendment (De Facto Relationships) Act 2011 21.7.2011 Pt 3 (s 5)—21.7.2011: s 2(1) 2012 22 Family Relationships (Surrogacy) Amendment Act 2012 7.6.2012 7.6.2012 2015 15 Family Relationships (Surrogacy) Amendment Act 2015 16.7.2015 Pt 2 (ss 3—9)—16.7.2015 2016 30 Family Relationships (Parentage Presumptions) Amendment Act 2016 23.6.2016 Pt 2 (s 4)—23.9.2016: s 2 2016 32 Statutes Amendment (Youth Court) Act 2016 30.6.2016 Pt 6 (ss 23—25)—1.1.2017 (Gazette 8.12.2016 p4903) 2016 35 Statutes Amendment (Gender Identity and Equity) Act 2016 4.8.2016 Pt 8 (s 33)—8.9.2016 (Gazette 8.9.2016 p3676) 2017 6 Statutes Amendment (Surrogacy Eligibility) Act 2017 15.3.2017 Pt 4 (ss 9—13)—21.3.2017 (Gazette 21.3.2017 p926) 2017 13 Statutes Amendment (Registered Relationships) Act 2017 26.4.2017 Pt 2 (ss 4—6)—1.8.2017 (Gazette 1.8.2017 p3039) 2019 31 Surrogacy Act 2019 7.11.2019 Sch 1 (cll 8 to 11)—1.9.2020 (Gazette 18.6.2020 p3392) 2019 46 Statutes Amendment (Legalisation of Same Sex Marriage Consequential Amendments) Act 2019 19.12.2019 Pt 7 (ss 15 to 17 & 19)—1.7.2020 (Gazette 30.4.2020 p838); s 18 immediately before Sch 1 (cl 10) of 31/2019—1.9.2020 (Gazette 18.6.2020 p3392) 2024 8 Assisted Reproductive Treatment (Posthumous Use of Material and Donor Conception Register) Amendment Act 2024 28.3.2024 Sch 1 (cl 5)—26.2.2025 (Gazette 28.11.2024 p4271) Provisions amended since 3 February 1976 New entries appear in bold. Entries that relate to provisions that have been deleted appear in italics. Provision How varied Commencement Pt 1