You are (not) the father: Paternity testing and family law

When the parentage of a child is in dispute, parties can turn to accredited testing facilitates to determine whether an individual is the child’s biological father. In some matters, a party may refuse to undertake a paternity test.

In this week’s article we look at how parties can obtain orders for paternity testing and what presumptions a court can make about parentage.

Paternity testing

Section 69W of the Family Law Act 1975 gives the courts the power to make an order for a paternity test to occur. The court can make that order on its own initiative or following a request by a party or an independent children’s lawyer.

If the child whose parentage is in question is under 18 years old, section 69Z of the Act provides that the parentage test cannot be carried out unless the court has the consent of a parent, guardian or person with responsibility for long term or day-to-day care of the child.

When will the court order a paternity test?

Before the court will make an order for a paternity test, the parentage of the child must be an issue in dispute. The court will not make an order for a paternity test if none of the parties are questioning whether who the child’s biological father is.

The case law also indicates that it must be more than one party saying they don’t think someone is the child’s father. There must be evidence before the court that places the child’s parentage into dispute.

In Diggins & Diggins (1992) the court said:

There must be some real issue as to paternity, some evidence which places the paternity of the child in doubt, before a court can embark upon the process of subjecting the child to the procedures for paternity testing and making an order for that purpose.

Presumptions

Under the Act there are presumptions that apply to parentage. For example: -

• if a woman has a child while married, the child is presumed to be the child of the woman and her husband (section 69P(1));

• if a woman has a child and cohabits with a man that she is not married to anytime in the period between 20 and 44 weeks before she gave birth, the child is presumed to be the child of that man (s69Q);

• if a person is name is on the child’s birth certificate, they are presumed to be a parent of the child (s69R).

The presumptions can be rebutted by evidence. The standard of proof is the balance of probabilities. This means it must be more probable than not that the person is not the child’s parent.

What orders can the court make?

Once the court has considered the evidence about a child’s parentage, one or both parties can seek a declaration as to whether someone is the parent of a child.

Under section 69VA of the Act, that declaration is “conclusive evidence” of the child’s parentage for all laws of the Commonwealth.

Why seek a paternity test?

The obvious reason clients seek a paternity test is to determine if they are the biological father of a child. These clients may want to confirm whether they are the biological parent of the child so that they can spend time with the child, or to determine whether they are required to pay child support.

We also act for mothers who are seeking to confirm the other party is the child’s biological father. 

Please note: the information in this article is general in nature and is not legal advice. For legal advice about your circumstances, contact us to make an appointment with one of our solicitors.