DNA Testing

Is there a presumption about fatherhood?
Yes there is. If the person is not named as the father  in the child’s birth certificate or the adoption papers, the law says that a person is the biological father of the child if:

  • the person signs a statutory declaration (a legal document) saying he is the father
  • the children were born during the marriage or period of living together
  • the children were born within 44 to 20 weeks of a period of living together or within 44 weeks of your final separation
  • the court makes an order or finding that a person is the father of the children.

How can parentage be established if there is doubt?
Parentage can also be proved or disproved by DNA testing. DNA testing involves comparing a sample (usually a mouth swab) from each parent and from the child. Testing can be done voluntarily or ordered by a court.

Does one have to apply to the Family Court for DNA testing?
If you want the person you feel is your child to exercise his/her  right to spend time with you,  it is advisable to apply to the Family Court for an order that the child, the mother and the person claiming to be the father be DNA tested.

Can the DNA testing be done at any facility?
Testing for legal purposes must be done by organisations accredited under the Family Law Act 1975 (Commonwealth).

What if a parent of the child refuses to take part in the testing and has refused to allow the child to be DNA tested?
If the court orders a test and a person refuses to participate, the court may still make a decision based on the evidence it has before it. The court may “declare” (name) the person as the father, but it is important to have applied for such an order when the initial application is made.

Does a man have to pay child support if his name is not on the child’s birth certificate?
The Child Support Agency will not assess child support if the man is not named as the father of the child in the child’s birth certificate.

In such a case what does the mother have to do?
If the person she believes is the father refuses to sign the application to have his name inserted in the birth certificate as the father, she can apply to the Family Court for DNA testing.

What happens if the man refuses to take part in the DNA testing?
The Court can make a declaration that he is the father. An order for such a declaration  has to be applied for when the application is initially filed.

At Peel Legal Barristers & Solicitors we can assist you in relation to applying for and representing you in the Family Court for DNA testing to be undertaken. 

Peel Legal Barristers & Solicitors website provide general information only not legal advice. Each client’s situation is unique and it is advisable to obtain legal advice to suit your individual needs.

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