The question of the parentage of a child is often raised in family law matters. There is sometimes disagreement as to who is the child’s father which can be proved or disproved with evidence such as DNA testing.
For example, a father may wish to undergo a legal DNA parentage test where they are seeking Orders for parental responsibility of the child and the mother alleges that the father is not the child’s biological parent or where the father has been assessed to pay child support for a child they believe is not legitimately theirs.
In accordance with the Family Law Act 1975 a person is presumed to be the child’s biological father where the person has executed an instrument, such as a Statutory Declaration, a birth certificate or adoption certificate acknowledging that he is the father of the child and that instrument has not been annulled or otherwise set aside. A person will also be deemed the child’s biological father in circumstances where the child was born during the marriage of the parties, cohabitation, artificial conception or the Court has made an Order or finding that a person is the child’s father or that the person is liable to pay child support.
These presumptions of paternity can now be challenged with DNA parentage testing as it is considered the most accurate form of testing for parentage.
Before the availability of DNA parentage testing it was difficult to determine with scientific accuracy the biological parentage of a particular child and in the absence of this proof parentage was accepted based on the social relationship between the person and the child. The law takes into account biological parentage in matters of parental responsibility, child support and succession.
Therefore, it is important that parties to a paternity dispute acknowledge that if the legal DNA test result is positive there are consequences of parental responsibility and child support payments.
In child support arrangements, for example, a person must first prove to the Court that they are not the biological father of the child with a legal DNA testing report. In order to conduct a legal DNA test for a child a party must obtain the consent of the other parent. If the other party contests and refuses to consent to the paternity testing, then an application can be made to the Court seeking Orders for legal DNA testing when the child’s parentage is in question. The Court does not have the power under the Family Law Act 1975 to make orders solely relating to paternity testing and therefore an application seeking paternity testing must be done in the context of other orders in respect of the child. The Court must be presented with sufficient evidence pointing to the improbability of the person being the biological father before it can make an Order for a legal DNA test to be conducted.
A refusal of a parent to comply with an Order to facilitate a legal DNA test may give rise to inferences regarding their failure to be tested or a decision based on the evidence submitted. The Court cannot declare that a person is a father due to one party’s failure to participate but in circumstances relating to assessment of child support the Court can declare that the person should pay child support.
Effectively, there are potential serious consequences if a party refuses to participate in a legal DNA test after being ordered to do so.
After the legal DNA test has been completed and the results produced the Court may issue a declaration of parentage that is conclusive evidence of paternity.
It is important that the appropriate legal advice is obtained where there is a disagreement relating to the parentage of the child.
Furthermore, it is important that the legal DNA test is obtained without delay as the time a person takes to obtain or request a paternity test could be a factor in any Court application.
If you require any assistance in relation to your family law situation please contact our office.
