DNA testing in Family Law: Why you need it

Parenting disputes can be difficult and complex at the best of times. They can be even more difficult and complex when there is a dispute about whether a person is in fact the biological parent of the child/ren subject of any family law court proceedings.

Whether a person is or is not the biological parent of a child may have significant consequences with respect to the rights of a parent to make a Court application with respect to parental responsibility (decision making power with respect to a child’s long-term care, welfare and development), the child’s living arrangements and obligations with respect to child support.

Presumption of Parentage

The Family Law Act 1975 (“the Act”) lists five different scenarios where the Court will presume that a person is the biological parent of the child:

1. If you were married to the mother at the time the child was conceived (section 69P);
2. If you were living with the mother between 44 weeks to 20 weeks before the child was born (section 69Q);
3. If you are listed as the parent on the child’s birth certificate (section 69R);
4. If the Court has made an Order stating that you are the biological parent of the child (section 69S); and
5. If you have sworn a statutory declaration that you are the biological parent of the child (section 69T).

The presumption of parentage sections of the Act can be rebutted via a DNA test confirming parentage.

Getting a Court to order a DNA test to determine parentage

To determine whether a person is in fact the biological parent of a child, it may be necessary for the party and the child to undertake DNA testing. Section 69W of the Act gives the Court power to make a ‘parentage testing order’ to determine the parentage of the child. The Court can make a parentage testing order on its own initiative, on the application of a party to court proceedings or on the application of an Independent Children’s Lawyer.

The Court will only make a parentage testing order where there is a reasonable doubt as to the child’s parentage. You may be required to provide evidence as to why you are/the other party is not the parent of the child. This may include things like:

1. You did/did not live with the other parent in the period where the child was conceived/the relationship of the parties during the period of conception;
2. The physical characteristics of the child; if the child and the possible father share a common trait that the Mother does not have e.g., red hair

The Court will also consider the child’s best interests when deciding whether or not to make a parentage testing order. The Court will not order a DNA test if the grounds for believing that the child is not the child of the parent have been not established (eg no reasonable doubt). The Court will not subject a child to testing when it is not necessary so to avoid any psychological harm occurring.

More detailed information about the factors the Court takes into account when determining what is in the child’s best interest can be found here.

DNA test procedure

Once a Court makes a parentage testing order, there are certain procedures that must be followed.

Firstly, the test. The test is generally a non-invasive mouth swab, cheek swab or blood test. The sample must be taken by an accredited laboratory. You cannot administer the test yourself.

Once the sample has been taken, the following is required:

1. You must complete an affidavit and declaration that the test was carried out. The affidavit and the declaration must contain your recent medical history;
2. You must sign the label on the sealed container that holds your sample; and
3. A photograph of you must be attached to the declaration given after the test is taken. The person who takes your sample will take the photo.

Once the sample has been taken and the above steps have been followed, the laboratory will run the necessary tests to determine the parentage of the child. The DNA tests are extremely accurate, and the Court will place a correspondingly high level of evidentiary value on the test when making their determination as to who are the biological parents of the child. Put simply, the Court will likely accept the results of the DNA test as fact.

What are the ramifications of the DNA test?

The result of the DNA test, whether it confirms you are or are not the biological parent, may influence the following:

Child Support 

If a DNA test finds that you are the biological parent, then you may be required to pay child support. Whether you are required to pay child support is based on many other factors. This article will not go into detail about child support, but you can read this article which goes into more detail.

If a DNA test finds that you are not the biological parent, then the Court may order that you be reimbursed for some of the child support you have already paid for the child.

In the case of Forsythe & Latimer & Anor, the Court ordered that a DNA test be undertaken and it was determined that the Applicant Father in the proceedings was not the biological father. The Respondent Mother was ordered to pay the Applicant the sum of $9,743.30 in recovery of child support paid.

Decision making power and the child’s living arrangements

The Court allows biological parents to be a party to proceedings about a child’s living arrangements and the ability for decision making power.

Even if you are not a biological parent, you may still have standing to be party to parenting proceedings as a person concerned with care, welfare and development of the child. This means that if a DNA test determines that you are not the child’s biological parent, you may still seek parenting orders that allow for the child to live or spend time with you or orders in relation to parental responsibility.

The Court will determine the child’s living arrangements based on what is in the child’s best interests.

Summary 

In summary:

1. The Court can order a DNA test if there is a reasonable doubt about the child’s parentage.
2. The DNA test is a non-invasive procedure (that you cannot be physically forced to undertake) that will ultimately decide whether the Court will determine that you or the other party are the child’s biological parent.
3. If you are the child’s biological parent:
4. You may be required to pay child support; and
5. You have standing to be a party to proceedings about the child’s living arrangements and decision making.
6. If you are not the child’s biological parent:
7. You may be reimbursed for any child support already paid to the Mother; and/or
8. You may still have standing to be a party to a proceeding about the child’s arrangements as a person concerned with care, welfare and development of the child.

How we can help

It is important to seek legal advice before starting negotiations or issuing proceedings regarding parenting matters if you are uncertain about the parentage of the child/ren. The Family & Relationship Law Department of Coulter Legal can navigate the process, appear on your behalf and advise on the likelihoods of success and legal costs to help you work through the options.