Family law paternity testing is a famous procedure in child custody matters. Being a father is important in a child’s life, much less being the biological father. You may have heard of the old and famous TV series, Paternity Court. This show is a perfect example of paternity trials, though some fathers walk away defeated.
A paternity test includes DNA testing that helps parties to determine the biological parents of a child. Many times, this test becomes important when a party claims child support or custody from another party. Fathers may either wish to prove that they are the biological parent of the child, or if there’s paternity fraud.
For example, in custody battles where the parentage is in question, a party may wish to prove that they are the biological father. Maybe they want to claim parenting time or they don’t want to provide child support for a child not from them. No father wants to have a partner who forced parenting responsibility down their throat without their knowledge.
In such cases, family law paternity testing is relevant and is substantial evidence to prove or disprove paternity.
Family Law Paternity Testing: Court Orders
Did you know the court can help in family law paternity testing matters? The family court will always give weight to the child’s best interests. Section 60CC of the Family Law Act states this principle for the welfare and growth of children. Parents (especially biological ones) have a legal and moral obligation to adhere to this principle.
No wonder the courts are willing to help with paternity tests. 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.
Then, the family court can 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).
Conditions About Parentage Orders
It is very important to note that a court will only make such an order under certain conditions. The court will only proceed with this order if 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 the appearance of the child, and the 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.
How the Law Sees Presumption of Parentage
The Family Law Act 1975 is the primary Act that oversees Australian family law. One of these laws is the presumption of parentage under Section 69R. If there is no conclusive evidence to prove the parentage of a child, the Court will consider the following to presume the parentage of the child.
The following points about parentage are also mentioned under Section 69P:
- A child born during a marriage is considered the child of both spouses.
- A child born within 44 weeks of the end of a marriage (due to death or annulment) is considered the child of the woman and her former spouse.
- If a couple separates, briefly reunites, then separates again, and a child is born within 44 weeks of the reunion’s end but after their divorce, the child is presumed to be theirs.
Medical Procedures for Family Law Paternity Testing
So, if all the factors apply to you, you can proceed to the medical procedure for paternity 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 leukocyte antigen (HLA) tissue typing
- Testing serum makers
Importantly, these tests need to be conducted at an accredited laboratory by the National Association of Testing Authorities or NATA. Laboratories that conduct parentage tests must meet the standards set by NATA Approval and the Family Law Regulations 1984.
In other words, one should not think of submitting self-tested samples.
Family Law Paternity Testing: Steps You Should Take Note Of
So, are you ready to test your paternity for your family law matter? Then you should take note of certain steps to follow during the family law paternity testing procedure. Let’s look at each of them:
- Firstly, the party (putative father or putative mother) needs to complete an affidavit and declaration
- Secondly, they need to sign the label on the sealed container that holds the sample
- Then, the sample taker attaches 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
Family Law Paternity Testing: A Real-Life Case Study
In the case of B and B [2008] FCWA 72, Mr B sought court orders for family law paternity testing during parenting proceedings. He stated that he is not the biological father of the child in this case. In making his argument, the father demonstrated that he hadn’t met the child’s 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. The orders stated that Mr B is responsible for all costs associated with the parentage testing.
The court cannot physically force a person to take a paternity test, but refusal may lead to consequences. So, Mr B has no choice but to comply with a parentage test.
I’m Not the Father! I Also Want My Child Support Money Back!
This is a situation we should discuss since this can happen in cases about family law paternity testing. After all, who wants to pay child support for someone that’s not their child?
In such cases, time limits are very crucial. You need to act fast and prove that you’re not the biological father. While it is possible to claim or recover their money, 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. This is the case 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 paternity testing is important in divorce proceedings that involve children. This goes the same way with maternal testing. Both parents in such cases may feel anxious about their status in relation to a child. Moreover, they may wish to claim every last penny they gave for child support.
Therefore, parents in such cases should seek legal advice to lessen their stress when they approach parentage testing orders. At JB Solicitors, our team of experts are here to help you with every step. For more information on family law paternity testing or parentage, do not hesitate to contact our friendly team of lawyers.
Speak with our team members today. Send an enquiry here about your family law matter.
