Australia: DNA testing in family law – tell us, who is your daddy?

Last Updated: 29 November 2017
Article by Ruth Whisker

As solicitors we see many reasons why parents want DNA testing. Some men want to prove they are the father, some men want to prove they are not the father and some women want to prove who the father is to end a dispute.

When both parties agree to have DNA testing

If the person who wants the test to be conducted and the other parent (or possible parent) agree, then they can arrange for DNA testing to be carried out privately without a court order.

However, to ensure that the test results are acceptable to the court should the mere test results themselves not resolve the dispute, it is important to ensure that the testing is conducted by a DNA testing laboratory which is accredited by the National Association of Testing Authorities (NATA) and that the testing complies with the requirements of Part IIA of the Family Law Regulations 1984.

What if the parent or possible parent won't agree to DNA testing?

If the person who wants the test to be conducted and the other parent (or possible parent) won't agree for DNA testing to be carried out, then it is possible to apply to the Family Court or Federal Circuit Court for an order for parentage testing under Section 69W of the Family Law Act 1975.

A person would only do this if they also sought a Declaration of Parentage under Section 69VA of the Family Law Act.

However, the court only has jurisdiction to make orders relating to parentage if there is another substantive issue in relation to the child before the court, such as contact or child support issues and only if there is a real issue as to the parentage of the child.

In Ames & Ames [2009] FamCA 825, Judge Dawe said: "I cannot envisage a situation where the Court will order parentage testing merely because it is requested to do so. In my view an applicant must have an honest, bona fide and reasonable belief as to the doubt".

When is someone presumed to be the father of the child?

Under the Family Law Act, a person is presumed to be the father of the child in the following circumstances:

  • The person was married to the child's mother ( section 69P)
  • The person cohabited with the child's mother at any time during the period 44 weeks and 20 weeks before the child's birth ( section 69Q)
  • The person's name appears on the child's birth certificate as the father ( section 69R)
  • Another court has made a finding of parentage ( section 69S)
  • 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 ( section 69T)

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 operation of the presumptions under the Family Law Act listed above, it would be necessary to put forward evidence to the court to rebut the presumptions and to demonstrate that you have an honest, bona fide and reasonable belief as to why that person is not the father.

If a man is not presumed to be the father by operation of the presumptions under the Family Law Act, it would be necessary to put forward evidence to the court to demonstrate that you have an honest, bona fide 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.

Need for DNA testing does not arise often

My experience as a family lawyer is that while DNA testing can reveal the truth about parentage when it is an issue in dispute, the need for actual testing to take place does not arise often.

One reason for this is that a man who is presumed to be the father of a child has to rebut the presumptions of parenthood under the Family Law Act before the court will make an order for DNA testing and this can be a difficult hurdle to overcome.

The court won't just order testing, where years after acknowledging the child was his, the father starts to "have doubts" when faced with a hefty child support bill. Mere suspicions are not enough and those suspicions need to be reasonably held for the court even to consider ordering a DNA test.

Another reason why DNA testing is not often required in practice is that false accusations of parenthood can fall away when a DNA test is threatened, because knowing that the truth will be revealed in any case can make the party denying the parentage issue concede that the other party is or is not the father of the child, as the case may be.

Ruth Whisker
Family law
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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