We are occasionally asked by our family law clients whether it is possible to obtain a parentage test where the paternity of a child is “in issue” or “in doubt”. Despite potentially valid reasoning by a party to seek such a test, the Courts are often reluctant to make orders that a test be conducted.
At Carter Dickens Lawyers we will aim to assist you in providing to the Court the clear evidence which meet the requirements to be granted a DNA parentage order. This may in turn impact past, ongoing and future Child Support payments, as well as a range of other factors related to parenting a child.
Presumptions of Parentage
Given the inability to DNA test all alleged parents of children, the Court, through the relevant provisions of the Family Law Act 1975 (CTH) make certain presumptions. For example, a person is presumed to be the child’s biological parent if:
- they are named as the parent on the birth certificate or adoption certificate
- they sign a statutory declaration (a legal document) saying they are the father/parent
- the child was born during the marriage
- the child was born within 20 to 44 weeks of when the mother and father lived together
- the court makes a declaration (finding) that a person is a child’s father and/or that a person is liable to pay child support for a child.
Rebutting the Presumptions
Presumptions of parentage used to play an important role prior to DNA testing being used as evidence. Now, with DNA testing, the role of the presumptions is simply to put onus on the person who wants to rebut the presumption to gather such evidence.
It is possible for the Court to require a parentage testing procedure to be carried out for the purpose of obtaining information to assist in determining the parentage of the child, and to seek to vary the presumption of parentage. The Court, however, requires there must be enough evidence which places the paternity of the child in doubt, before it can embark upon the process of subjecting the child to procedures for paternity testing.
The Court will only make such an order if you are able to demonstrate via evidence before the Court that you have an honest, bona fide and reasonable doubt that the child is your own (In the Marriage of Lee and Tse (2005) 33 Fam LR 167 at -, -[49).
What Happens if a Parent refuses the Parentage Test?
A court may draw such inferences as appear just in the circumstances if an adult person contravenes a parentage testing order or an associated order, or if a guardian of a child the subject of the application refuses to consent to the procedure.
In G v H (1994) 181 CLR 387, Brennan and McHugh JJ accepted the following definition of the word “inference”:
‘An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. Legal principle may confine the basic facts in order to exclude irrelevancies.’
In G v H, G (the man alleged to be the father of the child) refused to undergo parentage testing. The High Court considered the inference that could be drawn from this refusal. Their Honours, Justices Deane, Dawson and Gaudron held the following:
“So far as G’s state of mind is concerned, it may be inferred that he has chosen to take the risk of being held to be the father of H’s child and liable for his maintenance and support rather than submit to a test which will effectively disclose whether or not he is in fact the father … And if, as here, the evidence establishes that a particular person is the most likely person to be the father and that person has chosen to risk a finding that he is the father rather than submit to a parentage test, there is no injustice involved if such a finding is ultimately made.”
Essentially, it was concluded that an “inference may be drawn contrary to the interests of a party who, although having it within his or her power to provide or give evidence on some issue, declines to do so.”
Parentage is important because only parents have to pay Child Support. Parentage may also be an issue in Family Court matters when there is a dispute about who a child lives or spends time with. We therefore recommend you seek legal advice if you have any issues related to a topic raised in this article.
We understand the stress and time constraints that are often associated with these sensitive family issues. With this in mind, Carter Dickens Lawyers aims to both advise and make you fully aware of your rights, obligations and risks pursuant to Parentage Testing.
Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific case in question.