the family law act empowers the court to order a parentage test
The Family Law Act empowers the court to order a parentage test where the parentage of a child is an issue. The FLA is replete with provisions that support the power of the court to order a parentage testing procedure of the child, the child’s mother and any other person who might be instrumental in determining the parentage of a child. The procedures include blood group test, DNA fingerprint test and tissue typing.
The power of the court, however, is limited by Section 69Z of the FLA which provides that a parentage testing procedure must not be ordered without the consent of the following persons:
- Parent of the child; or
- Guardian of the child; or
- Person who has a responsibility for the child’s long-term or daily care, welfare and development under a parenting order.
The child cannot be tested if no person consents to the test even if the child wishes to undergo the procedure. In the case of F and R (1992) FLC 92-300 parentage testing was allowed despite the objection of the mother and her new husband. The father of the 13 year old child applied for parentage testing alleging that at the time the child was conceived, he and the mother were having sexual intercourse only once a month; the mother and her new husband were working together at the time the child was conceived; and the child and the new husband have a physical resemblance. The principle applied by the court was the paramount consideration for the interest of the child which in itself was enough reason to allow the parentage testing. The court recognized the child’s distinct and important interest of his paternity, his human reason of identity which is higher than inheritance and maintenance rights.
Other limitation to the court’s power to order parentage testing is that if it only relates to the issue in dispute in the proceedings and samples for testing may only be taken from a living person. For instance, in the case of McK and K v O (2001) FLC 93-089 the mother and grandmother of the child sought a paternity declaration with no other proceedings. They applied for parentage testing to be taken on a man who was already deceased. The court denied their application on the ground that parentage was not an issue in dispute and the man was already deceased.
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Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.