There is significant community interest in the capacity of DNA
assessment to affect court proceedings. It is suggested that a
swathe of wrongly convicted persons might be released because of
"DNA evidence." That is yet to bear fruit. On the other
hand, offenders may more easily be convicted with "DNA
There would be little controversy in the use of this evidence to
inculpate the offender and to exculpate the innocent. Significantly
more controversy exists in using DNA evidence to "determine
In Re: H & A (Paternity: Blood Test) (2002) 1 FLR
1145, Lord Justice Thorpe held that as science had developed
significantly, paternity is a matter to be determined by science
and not by legal presumption. That may be so. The difficulty that
arises, however, is that whilst science has advanced to precisely
determine "paternity," neither science nor the community
has developed so much that it can precisely determine
"fatherhood." And it may be said that the development is
so stagnant so as to assume, at least for the time being, that
paternity and fatherhood always overlap. But do they?
Further, the debate continues to rage over the extent of
"misattributed paternity," where various groups suggest
the issue affects "no more than 3% of tests" to
"over 30% of tests."
This is not intended to be a forum to fully extrapolate the
variety of philosophical differences to DNA paternity testing. It
is suffice to say that there are differences and it is those
differences that have led the courts to develop a careful
The authority of a court to order a paternity test is found in
section 69W of the Family Law Act 1975. Machinery
provisions exist at sub-sections (2) to (5). Sub-section (1) states
"If the parentage of a child is a question in issue in
proceedings under this Act, the court may make an order (a
parentage testing order ) requiring a parentage testing procedure
to be carried out on a person mentioned in subsection (3) for the
purpose of obtaining information to assist in determining the
parentage of the child."
The language suggests an almost unfettered discretion and was
held as such by Butler J in F & R (1992) FamLR 533.
However, as his Honour continued, an unfettered discretion must be
dealt with according to the ordinary rules of justice and fairness
between the parties. In addition, one might argue that a proper
statutory construction is always based upon the spirit and objects
of the Act as a whole. As a consequence, the Court has set a number
of factors for determination prior to ordering a paternity test.
These were most recently and fully discussed by Kemp FM in
Letsos & Vakros  FMCAfam 897.
There must be substantive proceedings before the court. The
court will not order parenting testing simply to satisfy the
interest or knowledge of a person. The results must have
implications for broader questions of parenting or child
Paternity must be an issue in the proceedings; that is, there
must be established on the evidence, the onus of which is on the
applicant, that there is a doubt in the applicant's mind as to
paternity, and the doubt must be honest, bona fide and
reasonable. Importantly, the applicant need not show that any
person is the father of the child. The applicant need only show
that there is an honest, bona fide and reasonable doubt as
to paternity. Often, evidence of such belief is difficult to
corroborate and, consequently, the court will accept that evidence
unless the court concludes the applicant's alleged doubt is
affected by malice or other extraneous considerations.
The court will not dismiss an application simply because the
applicant's evidence is inconsistent. Recollection of such
personal and intimate matters is frequently inaccurate.
Whether or not testing is in the best interests of the child.
Although, plainly, not a substantive parenting order, Coleman J in
Tryon & Clutterbuck  FamCA 580 held that an
order for paternity testing is still an order with respect to the
welfare of the subject child. Applying such definition to section
64B(2)(i) of the Family Law Act 1975, an order for
paternity testing is therefore a "parenting order" for
the purposes of the Act. It being so, the paramountcy principle
applies – section 60CA of the Act refers. It then behoves
the court to consider the matters outlined in section 60CC of the
Act so far as they are relevant and so far as any evidence is led
to draw an inference or make a finding.
A paternity test is, therefore, not for the asking. Very careful
legal considerations must be examined before a client is advised to
bring an application. Moral considerations, the purview of many
other papers and other philosophies, must come next.
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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