Cocks v Juncken

The High Court of Australia considered the presumption of legitimacy in the case of *Cocks v Juncken*. The dispute concerned the paternity of a child conceived before marriage but born thereafter, and the admissibility of evidence seeking to rebut this presumption.

The central legal issue before the Court was whether evidence could be admitted to prove that a child, born during a marriage, was not the child of the husband, notwithstanding the presumption of legitimacy. Specifically, the Court had to determine the circumstances under which this presumption could be rebutted and the nature of the evidence required for such rebuttal.

The Court affirmed the long-standing presumption of legitimacy, which presumes a child born during a marriage to be the legitimate child of the husband. However, it also held that this presumption is rebuttable. The Court reasoned that the presumption is one of law, not of fact, and can be overturned by evidence showing that the husband could not have been the father. This evidence need not be conclusive proof of non-paternity, but it must be strong, clear, and satisfactory, demonstrating beyond reasonable doubt that the husband is not the father. The Court indicated that evidence of the husband's impotence or non-access to the wife during the period of conception would be relevant, as would evidence pointing to another man as the biological father, provided such evidence meets the required standard of proof.