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While it is very rare that there is a dispute about who the mother of a child is, situations do commonly arise before the Family Court concerning the paternity of a child.

There are very significant legal and emotional consequences that may follow from a declaration as to parentage.

Such matters include and are often linked to applications to the Court about parental responsibility for a child, time that parents will spend with a child and the financial support of a child.

The Family Law Act 1975 contains certain presumptions of parentage as follows:

  1. if a child is born to a woman while she is married, the child is presumed to be a child of the woman and her husband;
  2. if a child is born to a woman and at any time between 44 and 20 weeks before the birth, the woman cohabited with a man, the child is presumed to be a child of the man;
  3. if a person’s name is entered as a parent of a child in a register of births, the person is presumed to be a parent of the child;
  4. if a Court has found expressly that the person is a parent of a particular child, the person is presumed to be a parent of the child.
  5. if a man has executed an instrument acknowledging that he is the father of a specified child; and the instrument has not been annulled or otherwise set aside; the man is presumed to be the father of the child.

These presumptions may be disproved by proof on a balance of probabilities.

Commonly where issues of parentage are disputed the Family Court will make a parentage testing order requiring a parenting test (commonly referred to as a DNA test) to be carried out for the purpose of obtaining information to assist in determining the parentage of the child.

A parentage testing order may be made in relation to:

  1. the child; or
  2. a person known to be the mother of the child; or
  3. any other person, if the Court is of the opinion that, if the parentage testing procedure were to be carried out in relation to the person, the information that could be obtained might assist in determining the parentage of the child.

To enable a parenting test to be carried out the Court may make such orders as it considers necessary or desirable to enable the parentage testing procedure to be carried out or to make the parentage testing procedure more effective or reliable. Some examples of the kinds of orders the Court may make are as follows:

  1. an order requiring a person to submit to a medical procedure; or
  2. an order requiring a person to provide a bodily sample; or
  3. an order requiring a person to provide information relevant to the person’s medical or family history.

The Court may also make such orders as it considers just in relation to costs incurred in relation to:

  1. the carrying out of the parentage testing procedure or other orders made by the Court in relation to the parentage testing procedure; or
  2. the preparation of reports relating to the information obtained as a result of carrying out the parentage testing procedure.

For a court to make an order for parentage testing, the parentage of a child must be “in issue”.

This means that there must be some evidence which places the parentage of a child in doubt.

An order for parentage testing accordingly cannot be made simply to satisfy just one parent’s personal doubts concerning a child’s parentage.

There are very specific rules and procedures which must be followed when a parentage testing order is made. The Family Law Regulations provides for the accreditation by the National Association of Testing Authorities (NATA) of laboratories to carry out parentage testing procedures.

If the parties agree, a parentage testing order may also be done voluntarily and by consent without the need to go to Court. When undertaken through a NATA accredited laboratory a parentage testing order is a useful tool to resolve the threshold issue of paternity without commencing court proceedings.

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