The two realms of family law and parental testing often cross paths. It is common for parental testing to be sought in order to settle matters such as child support or parenting proceedings. In this blog, we answer some of the most common questions surrounding parental testing and how these relate to the rules and regulations in family law.
What Happens When Both Parties 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, you must select a DNA testing laboratory which is accredited by the National Association of Testing Authorities and that the testing complies with the requirements of Part IIA of the Family Law Regulations 1984.
What if the One Party Does not agree to DNA Testing?
If one party does not agree to DNA Testing, then either party can apply to the Family Court or Federal Circuit Court for an order for parentage testing under the Family Law Act 1975. This is only possible if you have also sought a Declaration of Parentage.
However, the court only has jurisdiction to make orders relating to parentage if there is a real issue as to the parentage of the child and a substantive issue in relation to the child before the court, such as contact or child support issues.
When is Someone Presumed to be the Father of the Child?
The Family Law Act 1975 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 and 20 weeks before the child’s birth
- 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 Do You Need to Prove for the Court to Order DNA Testing?
If a man 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 a man 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.
Should I seek Legal Advice?
It is vitally important to be aware of the rules and requirements surrounding parental testing if you believe it is relevant to your family law matter. If you would like more information on how we can assist you with your parental testing matter or if you have any general family law enquiries, do not hesitate to contact one of our experienced family law solicitors on 9963 9800 or via our contact form.