The two realms of family law and parentage testing often cross paths. It is common for parentage testing to be sought in order to settle matters involving parenting disputes (to determine a child’s parentage) or in child support proceedings (to establish financial responsibility). In this blog, we answer some of the most common questions surrounding parentage testing and how these relate to the rules and regulations in family law.
What happens when both Parents agree to DNA Testing?
If both parties agree to DNA testing, then they can arrange for DNA testing to be carried out privately without a court order. However, to ensure that the test results are admissible in court, the test must be conducted by a laboratory accredited by the National Association of Testing Authorities and specifically Part IIA — Parentage testing procedures and reports.
What happens when one Parent does not agree to DNA Testing?
If one parent does not agree to DNA testing, either parent can ask the Federal Circuit and Family Court of Australia (the “Court”) to order a test.
Before this can happen, a Declaration of Parentage is usually needed.
The Court will only make the order if:
- There is a real question about who the child’s parent is, and
- There is another important issue about the child in the court case, such as who the child lives with, contact arrangements, or child support.
This ensures DNA testing is only done when it is necessary to help resolve a genuine dispute about the child.
When is someone presumed to be the Father of the Child?
Part VII of the Family Law Act 1975, covering parentage presumptions and the Court’s powers to gather evidence and make orders about a child’s parentage.
The Act provides the relevant basis for circumstances where a person is presumed to be the father of the child:
- The person was married to the child’s mother
- The person cohabited with the child’s mother at any time during the period 44 weeks to 20 weeks before the child’s birth is presumed to be the father
- The person’s name appears on the child’s birth certificate as the father
- Another court has made a finding of parentage
- The person has executed a document under a law of the Commonwealth, a state or territory of the Commonwealth or prescribed overseas jurisdiction acknowledging he is the father of the child
What Proof can the Court request to order DNA Testing?
If someone is presumed to be the father of a child, by reference to the presumptions set out above, it would be necessary to rebut the presumptions and provide evidence to demonstrate that you have an honest and reasonable belief as to why that person is not the father.
If someone is not presumed to be the father, by reference to the presumptions set out above, it would be necessary to put forward evidence to the court to demonstrate that you have an honest and reasonable belief as to why that person is the father, notwithstanding that the presumptions do not apply.
If you find yourself in a situation where you want to prove or disprove parentage, then it is best to contact a lawyer to ensure that you maximise your prospects of resolving the dispute through DNA testing, either by means of an agreement for testing or by an application to the Court for testing to be carried out.
Contact Us
It is vitally important to be aware of the rules and requirements surrounding parental DNA testing in family law matters. If you need to speak with an experienced family lawyer about a parenting issue, please do not hesitate to contact Etheringtons Solicitors in North Sydney on 9963 9800 or via our contact form.