The difficulty with obtaining DNA tests (Paternity tests) is when the other party won’t agree to participate in the DNA testing procedure. In some cases, the failure to obtain a DNA test can result in someone paying Child Support when they are not the biological father of the child. We can organise DNA tests where both parties are agreeable. Should the other party not agree to a DNA test then we can seek Orders on your behalf that compel the other party to attend for a DNA test.
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.
An Application to Court for a DNA test is usually a painless experience that can occur within a short period of time.
DNA Testing is relevant in the following situations:
- to obtain child support from a parent;
- to refute child support being sought against a person;
- to prove paternity in Family Court children’s matters;
- for peace of mind purposes only (DNA test without legal standing); and
- DNA test where the whereabouts of the other party is unknown.
If you are not sure whether you can obtain a DNA test, then contact our experienced Family Law division. We can provide you with peace of mind advice, address your concerns and questions and if you choose, an action plan to ensure you navigate this emotionally stressful process as effectively as possible.
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 Fatherhood
In Australia, approximately 25% of men who have undertaken a DNA test find out they are not the biological Father of a child1. Regardless of circumstances, DNA testing can provide peace of mind for both the Father and the child who both have the right to know if they are biologically related. Where there is uncertainty as to who the biological Father of a child is the Family Law Act 1975 provides guidance.
According to this Act, the law assumes that a child is deemed to be of a woman and a man if:
- the child is born to a woman while she is married or while she is cohabitating with a man, or within 44 weeks after separation; or
- a person has been named as a parent on the child’s birth certificate; or
- a legal document has been signed to acknowledge that they are the Father of a child.
These presumptions can be overturned through parentage testing procedures, more commonly known as DNA testing.
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.
There are two types of parentage testing procedures, these are:
- Peace of mind testing – this type of testing is more commonly known as non-NATA testing or self-sampling and does not meet the legal requirements of a Court ordered test. This is because samples are taken by the individual as opposed to an authorised collector such as a Pathologist. Once a sample is collected, they are sent to an authorised collector for analysis. This test can cost anywhere upwards of $150+.
- DNA typing – also known as NATA accredited testing, this is the more accurate type of parentage testing, boasting an accuracy of 99.999 per cent. A Pathologist laboratory collects samples from the man and the child, where both are required to have formal identification prior to undertaking the procedure. This test can cost upwards of $825+.
In Australia, a Mother’s consent is required for the DNA testing procedure. A peace of mind test can be taken without the Mother’s consent with samples being collected by the Father and sent to a laboratory for results.
Where parentage is in dispute and one parent refuses to participate in a paternity testing procedure, the Court may make an Order requiring a person to participate in the DNA testing process. This Order requires a parent to present the child for the collection of a sample and also the man to present himself for the collection of his sample.
What if the other party refuses to attend the DNA testing?
Should a party fail to comply with an Order of the Court requiring a mandatory paternity test, then the Court has powers to make an adverse finding against the parent that is avoiding the test. An adverse finding by a Court may declare that a man is, or alternatively is not, the biological Father of a child, depending on whether the mother or the man is avoiding the test, i.e. If a man is avoiding a DNA test, then he may be declared the biological Father irrespective of whether that man is, in fact, the biological Father of that child.
Prior to making an adverse finding, the Court will take into consideration:
- the state of mind of the person refusing to participate in testing and his or her motives for refusal; and
- paternity itself. That is, given that a test is capable of finalising the issue of paternity beyond a reasonable doubt, refusal to comply invites the inference to be drawn that the refusing party is likely to be the parent of the child.
Once paternity has been established either through formal DNA testing procedures or if a man agrees that he is the Father of a child, then he has all of the rights and responsibilities of fatherhood.
Once parentage is confirmed and a person is identified to be the Father of a child, then that person is liable to pay child support for that child. The parent will also share responsibility for that child unless there is a Court Order to the contrary.
Above all else, parentage testing provides peace of mind for both the Father and the child, who both have the right to know if they are biologically related. The decision of a Father to pursue parenting arrangements for a child who is biologically his is a matter for the individual.
It is vital that you obtain independent legal advice regarding your rights and responsibilities as a parent prior to pursuing any formal arrangements for parenting of a child. Forge Legal Family Law division has the knowledge base drawn from the amalgamation of a number of firms. Our experienced team has assisted hundreds of clients to resolve a variety of parentage disputes by assisting Court processes and obtaining DNA testing.
If you have any concerns about your current circumstances or wish to explore your legal options, don’t hesitate; every day you wait can end up costing you more.