Family law paternity testing includes a DNA testing that helps parties to determine the biological parents of a child. Many a times, family law paternity testing becomes especially important when a party is claiming child support from another party.
A party may either wish to prove that they are the biological parent of the child, or that they are not. For example, in custody battles where the parentage is in question, a party may wish to prove that they are indeed the biological parent of the child.
On the other hand, there can also be many cases of paternity fraud. Paternity fraud occurs when a party falsely claims that another party is the biological parent of a child, just so they can claim child support payments from them. In such cases, family law paternity testing becomes especially relevant as this acts as substantial evidence to prove or disprove paternity.
Family Law Paternity Testing: Court Orders
A person can make an application to family court if and only if there is reasonable doubt about the child’s paternity. The law enables the court to make a parentage testing order at the request of a party in any family law proceeding or matter. The family court can then make court orders i.e. court-ordered paternity test. These tests can confirm the parentage of the child.
Moreover, a court can make an order on its own initiative, or on the application of a party to the proceeding or an Independent Children’s Lawyer (ICL).
It is very important to note that a court will only make such an order if it is satisfied that there is a valid reason to believe that the person making the request could be the father before the paternity test even takes place.
On the other hand, even for matters related to paternity fraud, a parent must show reasonable proof or any legal document to convince the court that there is indeed a doubt about parentage. Parties can use factors like appearance of the child, age of the child i.e. timing of conception for both matters, either to prove or disprove parentage.
Generally, paternity fraud matters are not directly dealt with by family courts. As parties can sue other parties for paternity fraud, there are other courts that may handle these cases.
Family Law Act Presumptions of Parentage
If there is no conclusive evidence to prove parentage of child, the Court will consider the following to presume the parentage of the child. The following points are mentioned under Sections 69P to Section 69U of the Family Law Act (1975):
- A person’s name is on child’s birth certificate,
- They were married to the other parent at the time the child was conceived,
- A Court has made an order that states that person is the parent of the child,
- A person has sworn a Statutory Declaration that they are the parent of the child,
- They were living with the other parent at any time between 44 weeks – 20 weeks before the child was born,
- A person’s name is on a signed acknowledgment of artificial conception
Medical Procedures Used for Parentage Testing
According to the Attorney-General Department’s website, the following medical procedures can be used as part of family law paternity testing
- DNA typing – cheek swab, mouth swab or blood sample
- Red cell antigen blood grouping
- Red cell enzyme blood grouping
- Human leucocyte antigen (HLA) tissue typing
- Testing serum makers
Importantly, these tests need to be conducted at an accredited laboratory. The lab must be accredited by the National Association of Testing Authorities or NATA. In other words, the courts will simply not accept self-tested samples.
Procedures Involved in Parentage Testing
There are certain steps that parties are supposed to follow during the family law paternity testing procedure. Therefore, it is important to keep the following points in mind:
- The party (putative father or putative mother) needs to complete an affidavit and declaration
- They need to sign the label on the sealed container that holds the sample
- The sample taker attaching a photograph of the donor to the declaration. Moreover, they need to attach the photograph in such a way that it should be evident if someone has tampered with the photo, or removed the photo
- Both the affidavit and declaration should also contain information about the donor’s recent medical history
Case Study Example
In the case of B and B [2008] FCWA 72, Mr B sought court orders for family law paternity testing during parenting proceedings stating that he is not the biological father of the child in question. In making his argument, the father demonstrated that he hadn’t met the child’ mother until after the child was born.
The mother was making financial claims to get Mr B to pay child support. However, the court made orders requesting each party to the proceeding to take a DNA test to prove the paternity of the child.
Can You Claim Child Support Back?
This question is again related to the topic of paternity fraud. When a person finds out that they were not the biological parent of a child, but had made child support payments for him/her, they may wish to recover their money.
In such cases, time limits are very crucial. Also, a person may be able to claim or recover their money, however, the outcome of the case is not certain. In other words, it is not automatic or by default that a person can recover child support payments, even if they weren’t legally liable to do so, or were the victim of paternity fraud.
The Court will consider a range of factors in determining the outcome of such matters. After all, as children are at the heart of the matter, the Court will primarily consider what’s best for them.
Importance of Seeking Advice from Family Law Experts
Family law proceedings, especially parenting proceedings are complicated. This is because a party feels anxious about their status in relation to a child. Moreover, many family law outcomes depend on this such as child support outcomes, child custody outcomes etc.
Therefore, people can feel extremely stressed when dealing with parentage testing orders. This is why it is important to seek advice from solicitors who have a wealth of experience in dealing with such issues. At JB Solicitors, our team of experts are here to help you with every step.
For more information on family law paternity testing, or child’s parentage, do not hesitate to contact our friendly team of lawyers. To speak with our team members, send an enquiry here.
