Parentage Testing and Family Law

In most family law matters that come before the Court, the issue of parentage (or who is legally deemed to be the parent of a child) is not in dispute.  That is, both parents agree that there is no other possibility that a third party could be the biological parent of the child who is the subject of an order.

However, there may be occasions when there is a question regarding the parentage of a particular child and clarification or proof of parentage will need to be determined by the Court.  

When does the Court assume that a person is the parent of a child?

Given changes in society over the past few years, including an increase in children born to single parents or same sex couples, the Australian Family Law Act (1975) has been amended to include a number of presumptions regarding parentage.  For instance, a person is presumed to be the parent of a child if one or more of the following conditions apply:

• The parents were married at the time the child was born.
• The parent’s name appears on the child’s birth certificate.
• The parent acknowledged parentage by completing a legal document such as a statutory declaration.
• A court has made a declaration in the past that the person is the child’s parent.
• The person has legally adopted the child.
• The couple co-habited, or were married, for the period starting from 44 weeks prior to the birth of the child and ending not less than 20 weeks before the child’s birth.

What if parentage is disputed?

In circumstances where there is a question as to who the biological parent of a child is, the Court has the power under Section 69W of the Family Law Act 1975 to make an Order for the child, the birth mother and the potential father to undergo parentage - or DNA - testing.

The Court may make an Order for this on its own initiative or following an application by one of the parties involved or an application by the independent children’s lawyer in the matter.  If a party is considering making an application to the Court for paternity testing it is important that they have evidence about what causes the parentage of that particular child to be in doubt.

The process of parentage testing is usually a non-invasive saliva test (usually taken by mouth swab) and samples are taken from the child, the birth mother, and the potential father of the child. These tests can be processed quite quickly and a report is produced which indicates the likelihood of the potential father being the biological parent of the child.  

It is important for parties to ensure that the laboratory that performs the parentage testing procedure is a laboratory accredited by the National Association of Testing Authorities, Australia (NATA) or the paternity testing results may not be accepted by the Court.

If the Court is satisfied with the evidence put before it, including the results of the paternity testing, that the potential father IS the biological father of the child, the Court can then proceed to make a declaration of parentage in relation to the child. The Court can also make other Orders including for the father to be listed on a child’s birth certificate if this has not already occurred.

If you have any questions in relation to parentage testing, parenting orders or any other Family Court proceedings please do not hesitate to contact one of our specialist family lawyers on 02 4731 5688.