Family & De Facto Law – The Legal Technicalities and Consequences of Valid Parentage Testing under the Family Law Act 1975
The presumption of parentage under the Family Law Act
Under the Family Law Act 1975 (‘The FLA’) there is a statutory presumption of parentage which is laid out in Part VII, Division 12, Subdivision D.
The presumptions of parentage under the FLA are as follows:
- presumption of parentage arising from a marriage (s 69P);
- presumption of parentage arising from cohabitation (s 69Q);
- presumption of parentage arising from registration of birth (s 69R);
- presumption of parentage from a court finding (s 69S);
- presumption of paternity from an acknowledgement of paternity (s 69T)
S 69U(1) of the FLA confirms that this presumption is a rebuttable one with the standard of proof being the balance of probabilities.
When will a court order parentage testing?
Where parentage is in issue, the Family Court can order parties to undergo parentage testing (s 69V- 69ZA). The Court can order this of its own motion or at the request of a party
A Court will not order testing merely because one party requests it. The parentage of a child must be ‘in issue’,or in other words, it must be in doubt. The view of the Australian Courts is that a child has a right to know his or her parents. Further, the Courts are reluctant to order parentage testing if it perceives that it is not in the best interests of the child.
In Duroux v Martin (1993) FLC the Full Court approved the trial judge’s statement that an applicant must have an ‘honest, bona fide and reasonable belief as to the doubt’ and although the test is not an objective one, the Court will objectively assess the circumstances giving rise to the applicant’s doubt.
What do the parentage testing orders entail – is a blood sample necessary?
A parentage testing procedure is defined in s4 of the Act as ‘a medical procedure prescribed, or included in a class of medical procedures prescribed, for the purposes of this definition’.
S 69 X covers the types of medical procedures which may be ordered by the Court which include a ‘bodily sample’ for testing purposes (s 69X(3)(b)).
Therefore, with the advances in technology, DNA testing no longer requires a blood sample. The samples required can be obtained painlessly by swab from, for example, inside the cheek.
Part IIA of the Family Law Regulations 1986 (‘The Regulations’) applies to parentage testing procedures conducted pursuant to a court’s parentage testing order made under the FLA. These lengthy Regulations are strict and include;
- Testing laboratories must hold NATA accreditation
- All parties involved in the testing must give their consent and sign an affidavit including a child if they are over 18
- Samples must be collected in a controlled environment by a medical professional
- The medical professional must also sign a declaration
- A “line of custody” must be maintained for the samples
- Results of the test will be returned to the medical professional who will pass these results on to those on the application for testing
Admissibility of results in Family Law proceedings
If the testing is undertaken in accordance with the Family Law Regulations then the results are deemed as admissible evidence for the purposes of Court proceedings (s69ZC(1).
Once the court has decided the issue of parentage for the purpose of proceedings under the FLA, it may also issue a ‘declaration of parentage’, which is conclusive evidence of parentage for the purpose of all Commonwealth laws (s 69VA)
Refusal to undergo parentage testing
An adult can not be compelled to participate in a test and any failure to do so does not result in sanction (s69Y(1).
However, this does not limits the Courts power to make a finding of fact with regards to parentage and any failure to comply with the test may result in the Court drawing inferences with regards to parentage (S 69Z(3)).
If you have concerns regarding parentage testing or any Family Law matter, contact LAC Lawyers for specialist advice and assistance.