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 evidence."
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 parentage."
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 jurisprudence.
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 as follows:
"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 [2009] 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 support.
- 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 [2007] 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.