DNA testing can be completed with the consent of both parties or alternatively by Court Order. Where a person does not agree to participate in DNA testing, a person can apply for a Court Order to compel another person to undertake DNA testing. DNA testing can be sought by either person who claims to be the biological parent of a child or a person whom another has alleged is the parent of a child. DNA testing can be used to determine the paternity of a parent.
When can I make an Application for DNA testing?
An Application for DNA testing is usually sought where a purported Father is seeking to spend time with a child and the other parent claims the male is not the biological parent of the child. DNA testing can also be sought for the purposes of either seeking or refuting an Application for child support.
DNA testing and Child Support
A person will be presumed to be a parent of a child if the following apply:
- the parties were married and had not divorced at the time of the child’s birth;
- the parties are named as the parents on the child’s birth certificate;
- a party signs a Statutory Declaration that they are the biological parent;
- the parties lived together between 44 to 20 weeks prior to the birth of a child;
- a child is adopted;
- the child is conceived with the assistance of artificial means;
- the child is born through the use of a surrogate.
If one of the above circumstances are present it will be assumed by Child Support Agency ("CSA") that the person is the biological parent of the child. The CSA will then commence claiming child support from that parent.
To overcome a presumption of paternity a party will seek to obtain a DNA test either by consent or by Court Order. Should the DNA test results prove that a person is not the parent, that parent may still need to apply for a Court Order ending the child support payments.
What do I need to prove to obtain a DNA Test?
In order to obtain a Court Order compelling a person to undertake DNA testing a person will need to prove the following:
- there is evidence to support a reasonable basis for doubting whether a person is the parent of a child (eg. the purported Father was working away around the time of the date of conception; the biological Mother was involved in a sexual relationship with another male);
- if the DNA test is sought for child support purposes additional information may be required.
What if the other party refuses to attend the DNA testing?
If the Court makes an Order for the parties to attend for DNA testing and the other refuses to comply with the DNA test, a Court can make an adverse finding against the person who refuses the test. For example, where a purported Father seeks a DNA test to prove that he is not the biological Father for the purposes of ceasing child support payments, and the Mother refuses to participate in testing, a Court can infer that the Mother has failed to participate because the purported Father is not, in fact, the Father and make Orders that the purported Father is not a parent of the child.
What if I don't know where the other party is living?
We can assist to locate the other party if you do not know where they live. In some situations, we can have documents delivered to the other party without requiring an address. It is critical to discuss your circumstances with an experienced family lawyer prior to navigating this process. If managed incorrectly, DNA testing and associated child support negotiations can be an extremely lengthy, drawn out and complicated process. Our Forge Legal team are well versed in this area, having assisted hundreds of clients to ascertain what is and what is not rightfully theirs.