DNA parentage testing – do you have to undertake it? Can you ask for it? What are the consequences?
Over the years I have had a number of clients – both the father and the mother – who need DNA parentage testing done. Some people resist it. Others are OK with the process. People’s reactions will really depend on how they are approached and also when they are approached. At the end of the day something needs to be done if there is a question…
In fact, I once had a client who had 3 children and after separation he did a home DNA parentage test – that is where you swab the kids mouths, your mouth (all at home or where ever under no guidance at all) and send it back to the lab and they give you a report. Well, in this case the report came back that the eldest and youngest were his biological children, but the middle child was not… suffice to say he had a little freak out. Because it was a home-based test I calmed him and said we need to get this formally done. So, we did. And the results came back that the child was actually his biological child. The home-based test was a false negative!! The company profusely apologised and said that had never happened before… it certainly made me weary of 2 things 1. home DNA parentage testing kits (because they are not done at a pathology/lab there is more of a chance that they can be contaminated – so make sure you choose a laboratory that is accredited under the Family Law Regulations) and 2. don’t over react until you have had a proper test undertaken under the specific guidelines.
There are other circumstances that you may need a DNA parentage test done such as the mother not knowing who the father is (don’t judge – there are many different circumstances where that can arise) or where the potential father does not believe it could possibly be him.
There are a few things we need to go through so that you understand the process and the law (which make this blog kinda long…), such as:
The presumptions of paternity.
How to rebut the presumptions.
Applying to Court for DNA parentage testing.
What if someone does not make the child or themselves available for DNA parentage testing.
The different kinds of declarations that can be made about parentage; and
What do you do once you get a declaration
Presumptions of paternity
Did you know that there are a number of presumptions that you are a parent? There are 7 presumptions:
S60H – If a child is born from artificial conception procedures (this is not able to be rebutted – meaning it is conclusive and if the child was born from such procedure i.e. artificial insemination or the implementation of an embryo in a woman then you cannot later seek DNA parentage testing). The potential issues arising from this is another blog entirely!
S69P – 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. There are other details in this section about the death of the husband and if the married couple separated, but got back together and the timing of the birth.
S69Q – If a child is born to a woman and at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth the woman cohabited with the man to whom she was not married, the child is presumed to be a child of the man.
S69R – If a person’s name is entered as a parent of a child in a register of births or parentage information kept under a law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be a parent of the child.
S69S – If a Court has found expressly that the person is a parent of a particular child or made a finding that it could not have made unless the person was a parent of a particular child and the finding has not been altered, set aside or reversed, then the person is conclusively presumed to be a parent of the child.
S69T – If a man has executed an instrument acknowledging that he is the father of a child and that instrument has not been set aside, the man is presumed to be the father of the child
Common law presumption – any child who is either conceived or born in wedlock is deemed to be the child of its mother’s husband unless at the time of conception the spouses were subject to a decree of judicial separation or to a separation order
The last 3 presumptions can be rebutted by evidence that the potential father is not in fact the biological father.
How to rebut the presumptions or prove that you are or are not the biological father
The first step to take – and before raising it with the other parent (or potential parent) or embarking down the court path you need to look at the chronology leading to the child’s conception. Are there really circumstances that put the identity of the father into question? i.e. There were other partner’s around the same time, the potential father was not in the same town/country (yep, had that in once case – in totally different countries. The dates were out by about 8 weeks – absolutely no way this bloke was the father!).
If there are circumstances which put into question the parentage of the child, then the next step is to ask the other party to undertake DNA parentage testing. That can be a daunting request and I always talk to clients and ask them what would they like the outcome to be. Or I should say I ask them if they find that they are not the biological father, do they still want to be in the child’s life. And if they answer yes to that, I always reality test and say why do you need the test done then. In my opinion this is a really important question when the child is not a baby and you have been a part of the child’s life for some time now and you are the only father they have ever known. If you were to find out that you are not the biological father – think about how that will affect the relationship and your view of it. I’m not going to go into the difference of biological parent and psychological parent – but you need to be aware (or weary) of that before you embark down this path. How will or might this affect the child?
The next step, if the other person will not agree to submit to a DNA parentage test is to seek an Order from a Court (the Family Law Courts). Before I go into what that involves, I must stress that a Court will not willy nilly order DNA parentage testing to be done – they need to be satisfied that there is a question as to paternity. What I mean by that is just because you have either separated, or the mother has sought a child support assessment of you would not be enough for you to get such an order. And conversely just because you have separated or don’t want the father in the picture is also not enough.
S69W requires that DNA parentage needs to be a question in issue. You cannot seek such testing to simply satisfy your own doubts – you have to have a sufficient basis for asking. That same section also does not restrict the testing to the father (or I should caveat and say potential parent) of the child but can include any relative of the child, including for example a sibling or grandparent or any other person if the court is of the opinion that if the parentage testing procedure were to be carried out the information that could be obtained might assist in determining the parentage of the child.
Applying to Court for DNA parentage testing
So, once you have the chronology sorted and if the potential parent does not agree to the testing, you are ready to make an application to get an Order for DNA parentage testing. What you will need to do is the following:
Attend/attempt mediation – you must do that to see if you can get an agreement and if not, then you will be issued a S60I mediation certificate which you will need to be able to apply to the Family Law Courts;
File an Initiating Application in the Federal Circuit Court of Australia seeking an Order for DNA parentage testing (the type of Orders I usually seek on an interim basis are here – the final orders are discussed below with the Declarations that can be sought), along with an Affidavit of you which will set out the chronology to show the Court that there is either a question of paternity or that there is a good case for paternity. You will also have to file a Notice of Risk which is a mandatory form for all applications relating to children.
The other person will be able to file a Response which sets out their version of life.
You will have a Court event where you will more than likely obtain the order for DNA parentage Testing (if all has been done correctly!). That will be an Interim Order. You will then get another Court date where you will need to come back and tell the Court what the results are and what you are further wanting to be done – i.e. a Declaration be made (see below) or Orders to spend time with the child.
What if a parent does not respond or does not make the child available for the testing?
The Court can make an inference from a failure or refusal to consent to undertake the DNA parentage testing as appear just in the circumstances i.e. that because they did not respond or make the child available for the DNA parentage testing the Court can infer that you are not the biological father and make a Declaration that you are or are not the biological father. Or conversely if you are the potential father and do not respond or attend for DNA parentage testing – the Court can do the same; make an inference that because you did not respond or attend for DNA parentage testing that you are the biological father and make a Declaration that you are the biological father.
The different kinds of declarations that can be made
The Court can make a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.
A Declaration will be made under s69VA of the Family Law Act – that you are, or that you are not the parent.
Then there are 2 different types of declarations that can be made – these are both under the Child Support (Assessment) Act 1989:
S106A – A Declaration that a person should be assessed
S107 -A Declaration that a person should not be assessed. If a Declaration is made under this section, then the Court can Order that the other parent pay back any amounts of money paid under a child Support Assessment.
What do you do once you get a declaration?
Well, if you are needing the confirmation of parentage for child support – you can lodge it with the Child Support Agency (CSA). If you need it for the child’s birth certificate, you will need to apply to the Registry of Births, Deaths and Marriages to amend the Birth Certificate.
As I said at the beginning – think this through. Are you really wanting to open this potential bee hive? What will you do if the results say you are not the biological father, especially if you have been a part of the child’s life for some time and want to continue to be in their lives…