Parentage tests to determine the parent of a child may be needed for Family Law matters such as those involving child support payments, custody, access, inheritance and adoption.
The law states that a person is the presumed biological father of the child if:
If either the man or the woman believes the man is or is not the father of the child, even in cases in presumed proof of parentage, it is possible to have DNA testing to make sure. This report can be used to form the basis of a court order.
Also known as paternity tests, DNA testing may be conducted to establish whether there is a family (genetic) relationship, or lack of relationship, between individuals. Samples of bodily fluids are taken (mouth swabs are increasingly replacing blood samples, though both are reported to be effective) from the mother, assumed father and the child.
Both mother and nominated biological father can agree to a parentage test, and apply to the Family Court for DNA testing to be ordered. Court forms, such as an application for a declaration of parentage and an affidavit, are required. The court can order the laboratory to provide samples for testing. Testings must be conducted by organisations accredited under the Family Law Act who will issue a report admissible in the Family Law Court. The report may assist in issues such as custody, access and child support.
A court can order a parentage test but cannot physically force someone. However refusal to take a court-ordered test can be taken into account in the court’s decision and a person can still be ‘declared’ as the father.
It is always recommended to seek legal advice prior to any court action and procedures.
If the nominated father’s DNA does not match the child’s DNA, he cannot be the biological father and is excluded with 100% certainty.
If the nominated father’s DNA does match the child’s DNA, he is a possible father. The Family Law Court requires the report to determine a relative chance of parentage of at least 99.5%.
For a DNA test to be legally admissible, the mother’s sample must be submitted.
The mother, child and assumed father should all be tested. If a sample cannot be obtained from the mother, the testing can still be performed though the results will be less conclusive compared to when both parents are tested. Testing with just one parent is performed only in special circumstances.
An agreement from each participant or legal guardian must be obtained in order to do the test. The Family Law Act requires consent must be obtained from the child’s mother or legal guardian if the child is less than 18 years of age. It is advisable to seek legal advice before consenting or participating in a parentage test.
The Family Law Act requires: