Whether a man is the biological father of a child can be an issue in a parenting matter or in an application for Child Support. In some cases, a paternity test may determine the outcome of the case. In other cases, a person may be found to have responsibilities for a child notwithstanding they are not a biological parent.
Do we need to get a paternity test?
The Family Law Act sets up various presumptions of parentage so that the identity of the parents of a child does not have to be proven in every case. These presumptions are:
Marriage or cohabitation
If a child is born to a woman who is married, the child is presumed to be a child of the woman and her husband (Section 69P).
If a child is born to a woman who is cohabiting with a man, the child is presumed to be the child of the man (Section 69Q).
If a person’s name is entered as a parent on the child’s birth certificate, they are presumed to be the parent of the child (Section 69R).
Acknowledgement by court or in instrument
If a court has made a finding that a person is a parent of the child, the person is presumed to be the parent of the child (Section 69S).
If a man has executed a legal document, such as a statutory declaration, acknowledging that he is the father of a child, he will be presumed to be the father (Section 69T).
Notwithstanding these presumptions, when parties are in dispute about a child’s paternity, paternity becomes a live issue in the proceedings.
Challenging paternity in Family Law Proceedings
If a party has doubts about the parentage of the child, they can challenge the other party’s claims as to who is (or is not) a parent. The court may make orders for evidence to be adduced as to the child’s parentage. The order most commonly made in this situation is an order that the parties undergo a ‘paternity test’ in the form of DNA testing.
The court can make orders for a paternity test on its own initiative or on the application of one of the parties. If a party fails to comply with an order for parentage testing, the court is free to draw inferences from that failure. For example, if a man claims he is the father of a child but fails to undergo DNA testing, the court would conclude that he is not the father.
DNA testing is carried out by various organisations and usually involves a fee of around $600.00. The paternity test is done by taking a mouth swab from the mother, father and child and the DNA is then compared. DNA testing can be undertaken voluntarily or when it is ordered by a court. Where the court orders DNA testing at the request of one of the parties, it will usually make an order setting out who must bear the cost of the DNA testing. This may be the party requesting the testing, the party with greater financial means or the parties may be ordered to split the cost, depending on the circumstances. Once DNA test results are provided to the court, the court can make a declaration as to who are the parents of the child. This declaration can be used for the purposes of Family Law proceedings, and for the purposes of a Child Support Assessment.
Do the results of the paternity test matter?
If a mother wants to seek Child Support from a father, she must establish parentage. This can be done by obtaining a declaration from a court as to who the father is, either on the basis that one of the presumptions contained in the Family Law Act applies or based on the results of a paternity test.
If a man is found to be the biological father, he will usually be required to pay Child Support, which will be calculated on the basis of his income and assets.
However, if a DNA test reveals that a man is not the biological father, he may still be required to pay child support if he has played an active role in the child’s life, maintaining a close, familial relationship and presenting the child to other people as his own. This is sometimes called ‘equitable paternity’. If someone has supported a child financially and emotional for a long time, they will generally have to make Child Support payments regardless of their biological parent status.
If a person is a biological parent in a parenting matter, they have standing in the matter. This means that they have the right to participate in the matter if they want to. This is the case provided they have not relinquished their status as a legal parent (for example, through adoption). The court will require the Applicant to serve the application on all parties who have standing in the matter. It is then up to the person served whether they choose to file a Response or not.
In a case where there is a biological father as well as an equitable father, the court will generally require the biological father to be served if his whereabouts are known. If his whereabouts are unknown the court may make an order that service be dispensed with.
If a person is not a biological parent, but the child has an attachment to them, they have standing in a parenting matter. The court will make orders for the care of the child based on what is in the child’s best interests. This generally involves making arrangements for the children to maintain their connection to all the significant adults in their life. In some cases, courts will even make orders for the child to spend regular time with grandparents if this is an issue in dispute between the parties. In a case where there is both a biological father and a step-father, both of whom the child has attachments to, the court will seek to accommodate this in any orders it makes.
If you require legal advice or representation in a Family Law matter, please contact Go To Court Lawyers.