Paternity disputes, particularly in the context of child support, are common.

Presumption of paternity A child conceived or born during a marriage section 69p of the Family Lw Act is presumed to be the husband’s child.

The Family Law Act also establishes rebuttable presumptions of parentage for couples who are married, cohabited section 69Q of the Family Law Act at certain times relevant to conception, are named as a parent in an official document (such as the register of births) or if another court has made a finding of parentage.

The Act sets out presumptions of parentage for a child born as a result of artificial conception so that if a couple has a child through artificial conception procedures, it is presumed they are the parents, regardless of whether they have a biological connection: s 60H of the Family Law Act.

Paternity disputes, particularly in the context of child support, are common.

Declaration of parentage

If the court has decided an issue of parentage, it may make a declaration that is conclusive evidence of parentage for all purposes of Commonwealth law.

Evidence of parentage

Evidence such as physical characteristics and blood group types can be admitted to assist in establishing parentage. The most reliable and conclusive method, however, is DNA
based testing carried out on bodily samples (usually a finger prick or mouth swab).

Parentage testing

The court may order a “parentage testing procedure” to be carried out if an issue about parentage arises: section 69W of the Family Law Act.

Who can apply?

An application can be made by a party or an Independent Children’s Lawyer, and the Court may make an order of its own motion.

What can the court order do?

A parentage testing order may be made in relation to the child, the mother and any other person about whom parentage testing information might assist in determining the parentage of the child section 69W(3) of the Family Law Act and consequential orders may be made, for example, in relation to costs.

Consent

Parentage testing can only be carried out if a parent or guardian of a child under 18 years old consents.

What if a person refuses?

If a person who is ordered to undergo parentage testing fails to comply, the court “may draw such inferences as appear just in the circumstances”: section 69Y(3) of the Family Law Act.

Procedure

An application should be made to the Federal Circuit Court by filing an Initiating Application seeking interim orders with an affidavit in support. The laboratory which carries out the testing must be accredited by the National Association of Testing Authorities (NATA).

The laboratory will produce a report showing the results of the tests in accordance with Form 5 in Schedule 1 of the Family Law Regulations 1984(Cth).

Standard of proof

The standard of proof in parentage proceedings is the civil standard that is the balance of probabilities. The results of the test will normally show that the supposed father is more than 99% likely to be, or not to be, the father of the child (this can vary if, for example, putative fathers are closely related).