In parenting matters, there may be uncertainty or disagreement about who a child’s actual parent is. Determining paternity can have huge ramifications for court orders, such as parental responsibility orders or child support payments. When you are disputing the child’s paternity, usually the best way the dispute may be resolved is to get a paternity test to determine the child’s paternity.
This article will go into the details of what a court-ordered paternity test is, and when the court may order them.
What is a paternity test?
A paternity test is a DNA test that determines the biological parents of a child.
A bodily sample such as a mouth swab, cheek swab, or blood tests will be taken from the putative father and the child to determine the child’s true parentage. If you need the test done for legal purposes, it must be done in a medical environment. This means you cannot do a self-sample. You must go to a laboratory for the test.
A paternity test is taken after the birth of the child, whereas a prenatal paternity test can be taken during pregnancy to establish if an individual is the biological father of a child.
The results from a paternity test are generally 99.9% accurate.
What is a court-ordered paternity test?
The Family Court can order a DNA test on its initiative if there is reasonable doubt about the child’s paternity, or on your application, to establish if an individual is a biological parent of a child. This will normally happen in family law proceedings where there is a dispute about the child’s actual parent.
The court must be satisfied that there is reasonable reason to believe the person requesting the court-ordered paternity test, could be the father before the paternity test takes place. They will also consider the child’s best interests.
The Family Law Act 1975 (Cth) lays out the presumption of parentage. Without DNA test results, the presumption is that you are a parent of the child if:
- your name is on the child’s birth certificate (Section 69R)
- your name is on a signed acknowledgment of artificial conception
- you signed another legal document, such as a statutory declaration stating that you are the child’s parent (Section 69T)
- a court in Australia or an overseas jurisdiction has made an order stating that you are a parent of the child (Section 69S)
- If a woman was married, living, or in a de facto relationship with a man when her child was born, then the child is presumed to also be the child of the man (Section 69Q)
- if a child was born to a married woman, the child is presumed to be the child of the woman and her husband (Section 69P)
DNA parentage testing refutes the presumption of paternity. Due to their accuracy, if the DNA test says that a person is not the biological parent of the child, then the person’s name can be taken off the child’s birth certificate.
If the court orders a paternity test to establish the child’s parentage, you will be required to attend an accredited laboratory for the test. The laboratory will conduct the test that meets the NATA Approval and the Family Law Regulations 1984 (Cth).
The court can order a court-ordered paternity test without the mother’s approval.
When the court orders DNA testing at the request of the parties in the dispute, it will generally make a court order outlining who will pay for the DNA test.
After the court-ordered paternity test, if it has been determined that you are not the parent of a child, the court may make a declaration that you are not a parent of the child for child support or other Commonwealth legislation.
How to get the court to order a paternity test in Australia
If you’re unsure of the paternity of a child, you can apply to the Family Court for a paternity test. The test can assist with settling a child support dispute, or help with other court proceedings.
You will need to convince the court that there is reasonable reason to question the child’s parentage before they will order a paternity test.
You may need to supply evidence such as proof of a sexual relationship.
Examples of acceptable proof might be a relationship registration from the NSW Registry of Births Deaths and Marriages, marriage certificate, or any other information that might be relevant in proving that there was a sexual relationship and that you have a bona fide reason to believe that the man in question, is indeed the biological father of the child.
When will the Family Court make an order for paternity testing?
Where there are issues related to the parentage of a child in proceedings, the court may make an order for a paternity test to be conducted, to determine the child’s parents.
The court can also request a paternity test at the request of one of the parties in the proceedings. Generally, they will only do so when there is reasonable doubt about who is the parent of a child.
The law on paternity testing in Australia
The Family Law Act 1975 (Cth) Section 69W(b) gives a court permission to make a parentage testing order at the request of a party in a family court proceeding.
Can I be forced to take a court-ordered paternity test?
Section 69W of the Family Law Act 1975 (Cth) gives the court the ability to make a parentage testing order in relation to a child in the proceedings, however, they cannot force you to go through with the test.
If you do not proceed with the test, the court will make decisions based on the supplied evidence and the balance of probabilities.
If however, you do not comply with a court order, you may be charged with contempt of court or contravention of a court order, which is a criminal offense. If you are prosecuted and found guilty, you can receive penalties up to, and including imprisonment.
What is the paternity test procedure?
When a bodily sample is taken to confirm the parentage of a child, certain procedures must be followed, which include:
- Completing an affidavit and declaration.
- You will 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. The photograph and declaration should be attached in such a way that it would be clear if the photograph was removed.
- The affidavit and declaration should contain details of the donor’s recent medical history.
It is important to note that consent is implied by the person completing the forms (including any laboratory forms) and providing the sample.
Challenging paternity in Family Law Proceedings
If you have questions about the parentage of a child, you can challenge the other party’s claims. You can either request that they have a paternity test or if they refuse, you can ask the court to make a parentage testing order.
The court may consider the refusal when making future decisions.
Do the results of the paternity test matter?
The outcome of a paternity test can have a significant impact on parenting proceedings or child support matters. It is important to know because it can determine the outcome of any proceedings. We explain in further detail below.
Parenting proceedings
Any biological parent has a right to participate in any parenting proceedings in the court. In cases where there are two fathers – a biological father and an equitable father, the court will generally serve the biological father with a court attendance notice if his whereabouts are known. If they are not known, the court can make an order dispensing of the service.
In matters where a person is not the biological parent, but the child has formed an attachment, they also have the right to be involved in parenting matters. The courts will make orders that are consistent with what will be in the child’s best interests. This may mean they make orders stating that the child’s parentage is adduced as evidence.
A biological father is a person who sired or donated sperm that resulted in the birth of a child. A biological father is genetically responsible for the birth of a child.
An equitable father is a parent who is not biologically related to a child but has formed a bond with them, for example, a step-parent who is married to your biological mother would be an equitable father.
Child support
If you paid child support before the child’s paternity was determined, then you can claim back any child support that you paid.
There are limitations and conditions in these circumstances.
If, however, you were not paying child support, and it is determined that you are the child’s father, then you may be required to catch up on any missed child support payments.
If you require further information, contact Unified Lawyers on 1300 831 938 for a confidential discussion.
Paying back child support
If child support has incorrectly been paid to you, you will need to make arrangements to pay it back.
Failure to do so could result in further action being taken against you, including garnisheeing your wages, or in the most serious cases, prosecution.
Can a parent force a paternity test?
No, but the court can order a paternity test.
The Family Law Act 1975 (Cth) gives the court the authority to order a parentage testing procedure. This is normally done in circumstances where there is a dispute about the child’s parentage.
The court can order a paternity test, but it cannot physically make you go through with the test. If you do not comply with the court order then you could still be recognised as the father, and further action may be taken.
Circumstances, where further action might be taken, could include a situation where you have refused to have the paternity test, and also refuse to pay child support.
It is worth considering that around 25% of men who have had a paternity test, determine that they are not the father of the child, which means going through with a paternity test could save you money on child support payments.
Before agreeing to a paternity test, you should seek legal advice.
How much does a court-ordered paternity test cost?
It depends on if you opt for peace of mind testing or DNA typing.
Peace of mind testing involves self-sampling, which means that you take the sample yourself and then send it off to the laboratory for analysis. This type of testing ranges in price from approximately $150 – $200.
DNA typing is more accurate. A pathologist from a NATA-approved laboratory will collect the sample from both the man and the child. This test may cost up to approximately $900.
Who should I contact for a paternity test?
If you would like assistance to get a parentage testing order, you can contact our family lawyers. We specialise in dealing with complex matters and will outline your options. Our lawyers are excellent negotiators, who will help you resolve your matter.
For personalised family law advice, contact our team of child custody lawyers on 1300 667 461.
