12 Oct Paternity Law and DNA Paternity Testing

Paternity in family law disputes

Under current law, paternity is “presumed” in the flowing circumstances:

1. If a child is born to a woman and at the time she is married – the child is presumed to be the child of the woman and her husband, subject to some specific time limits: s 69P of the Family Law Act 1975;
2. If a child is born to a woman and at the time she is cohabitating with a man – the child is presumed to be the child of the man with whom she is cohabitating, subject to some specific time limits: s 69Q;
3. From the names registered on the Register of Births: s 69R;
4. If a prescribed court has made a finding of parentage: s 69S;
5. If an acknowledgement of parentage has been made: s 69T.

Paternity testing will only be ordered if parentage is in dispute

The court may make an order for any evidence required to determine parentage, but only in circumstances where the parentage is in question: s 69V.

The court may issue an order for evidence that may include orders for parentage testing either on application of a party or on its own initiative: ss 69W and 69X.

Declarations of Paternity and Child Support

The court can make a declaration of parenting after the evidence/testing result is obtained: s 69VA. This can include a declaration which is conclusive for all Commonwealth laws, such as child support.  Such a declaration may be enough to establish child support obligations but the Registrar of the Child Support Agency may require more evidence.Only a court may determine that it is satisfied of a child’s parentage on the basis of other evidence.

Child Support Paternity Criteria

The Registrar is to be satisfied that the person is a parent which includes:

• The child has been adopted by the person;
• That the parties were married or cohabitated, separated and then resumed cohabitation on at least one occasion and a child is born to the woman within 44 weeks after the period of cohabitation;
• The person is a parent of the child under s 60H (children born as a result of artificial conception procedures) or s 60HB (children born under surrogacy arrangements) of the Family Law Act.

The Registrar does not make investigations or conduct detailed enquiries about parentage. The obligation of the registrar is not to make a finding of parentage, but to decide whether or not to accept an application for an assessment of child support and a requirement of that is to make an administrative decision in relation to the parents of the child.

When either man could be the father

If there is information relating to more than one of the sections of s 29(2), pursuant to s 29(3) the registrar can choose which person is more likely to be the parent of the child.

If a person assessed for child support believes they are not the parent of the child, they can make an application to the court pursuant to s 107of the Child Support (Assessment) Act for a declaration that they should not be assessed in respect of the costs of the child.

If an applicant doesn’t accept the registrar’s finding about parentage, they can make an application pursuant to s 106A of the Child Support (Assessment) Act for a declaration that the person should be assessed in respect of the costs of the child.

Before you go ahead and do your own testing

There are specific requirements for da testing before a court will recognise and accept the evidence to support a paternity finding.  Generally once orders are made for this a select list of accredited testing agencies is selected from and strict procedures are to be complied with when it comes to the collection of samples, identification and test results.

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